STANDARD HIRE CONDITIONS AUSTRALIA
Standard Hire Conditions
“Jacks Winches (“JW”)” is Jacks Winches Pty Ltd (ABN: 71 147 913 380 and/or Jacks Winches Pte Ltd (CRN: 200901667G) or any of our related Bodies Corporate and is the Owner of the Equipment.
“Amount Owing” means all amounts owing by the Customer to JW under on in connection with this agreement.
“Business Day” means a day that is not Saturday, Sunday or public holiday in the State or Territory in which the Hire Equipment is hired from JW.
“Claims” means any claim (whether actual or contingent) including a claim for loss, damages and expenses (including legal fees) arising out of tort, breach of statute, breach of warranty or guarantee or breach of this agreement.
“Customer” refers to the person, firm, organisation, partnership, corporation or other entity (including Trust) hiring the Equipment from JW as identified in the Credit Application or Hire Contract.
“Customer’s Premises” means the premises nominated by the Customer and agreed by JW as the location for delivery, collection or use of the Hire Equipment.
“Environmental Laws” means any statute, policy, directions or regulations made or issued by a regulatory or government body regulating or otherwise relating to the environment including without limitation the use or protection of the environment.
“Equipment” means all equipment including tools, parts, containment, and cargo carrying unit forming part of the equipment package hired to the Customer.
“Hire Agreement” means the agreement between JW and the Customer for the hire of Equipment which includes;
(a) Any Commercial Credit Application
(b) The Hire Contract
(c) These Terms and Conditions of Hire
(d) Any applicable Special Conditions of Hire
“Hire Contract” means the JW contract which sets out the specific equipment and daily hire rate to be hired to the Customer pursuant to these Terms and Conditions of Hire.
“Hire Equipment” means the Equipment specified in the Hire Contract and any ancillary equipment.
“Hire Period” means the period of hire for the Hire Equipment as described in clause 2.
“Insolvency Event” means an event where a petition is received for the winding up of a Customer, an administrator or receiver and manager is appointed, the Customer is deregistered or makes or proposes to make an arrangement with its creditors, or execution is levied upon the assets of the Customer and is not satisfied within 7 days or the Customer is unable to pay all its debts, as and when they become due and payable.
“Jacks Winches Premises” means the premises nominated by JW as the location for the collection and ultimate return of the Hire Equipment.
“Liability” means any liability (whether actual, contingent or prospective), loss, damage, cost and expense howsoever arising.
“Long Distance location” means any location in excess of 50km of the nearest JW local branch.
“Off hire Date” means the date the Customer advises JW that the Hire Equipment is no longer required and returns the equipment in good serviceable condition to JW Premises or the agreed return location.
“Offshore” means “not on land” and includes situations over water, on vessels, rigs or other waterborne situations, including shore to vessel transfers but excluding sea and ocean freight on-board commercial cargo vessels and the loading and unloading of same.
“PPSA” means the Personal Property Securities Act 2009 (Cth) and where applicable all regulations made pursuant to it.
“Related Bodies Corporate” has the meaning it has in the Corporations Act 200 (Cth).
“Return Date” means the date on which the Hire Equipment is returned to JW physical possession at its Premises.
“Start Date” means the date when (a) the Customer collected the equipment or (b) nominated that the equipment shall be ready for collection or (c) JW loads the equipment on to any vehicle for delivery to the Customer’s premises as set out in the Hire Contract, whichever occurs first.
“Unforeseen Events” means and event beyond the control of JW 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, equipment or land transportation or inability to access the Customer’s Premises.
1. HIRE OF EQUIPMENT
1.1 JW agrees to hire the Hire Equipment to the Customer for the Hire Period and at the Hire Rates set out in the Hire Contract.
1.2 The Customer agrees to be charged for the Hire Period and the Customer is entitled to use the Hire Equipment for the Hire Period. Any variation to the Hire Period must be agreed by JW in writing.
1.3 The Hire Contract will specify the Hire Rates applicable. Unless otherwise agreed by JW in writing, the hire rates apply to every day during the Hire Period. JW reserves the right to charge a minimum period of hire for certain types of Hire Equipment. In any event the Hire Period shall be no less than one day if the Hire Equipment is returned before 5pm on the first day.
1.4 JW hires the Hire Equipment to the Customer at its absolute discretion and may refuse to hire to the Customer for reasons including but not limited to failing to provide adequate identification, perceived safety risks, failed credit application.
2. HIRE PERIOD
2.1 The Hire Period commences on the Start Date and ends at the end of the Off Hire date and includes weekends and public holidays irrespective of whether the Hire Equipment is being used.
3. COLLECTION AND DELIVERY OF HIRE EQUIPMENT
3.1 The Customer may;
(a) collect from and return to JW Premises the Hire Equipment; or
(b) request JW to arrange delivery to and collection from the Customer’s Premises and to charge the cost of this service at an agreed price not less than the cost of the service plus 12.5%.
3.2 In the event that the Customer requests JW to deliver and collect the Hire Equipment at the Customer’s premises the Customer must indicate this in writing including; the date that the Hire Equipment will be dispatched or collected and acceptance of the costs.
3.3 Jacks Winches:
(a) May decline a request from the Customer to either deliver or collect the Hire Equipment, in which case the Customer must collect from and return to JW Premises the Hire Equipment.
(b) Agrees to use its reasonable endeavours to collect the Hire Equipment at the date and time specified by the Customer.
3.4 Delivery and Collection times are estimates only. JW is not responsible for the failure or delays incurred but shall coordinate with the Customer in regard to such. Should additional costs be incurred for waiting time at the Customer’s Premises these will be to the Customer’s account.
- INSPECTION OF THE HIRE EQUIPMENT
4.1 The Customer must inspect all Hire Equipment for any defect or departure from the terms of the Hire Agreement prior to collection, or in the case that JW delivers to the Customer’s Premises within 24 hours of arrival. If no notice pursuant to clause 4.1 is received the Hire Equipment is deemed to have been received in good working order and condition.
4.2 Upon return of the Hire Equipment to JW Premises, JW will inspect the equipment and advise the Customer within 24 hours of the next business day, of any loss, damage or departure from the terms of the Hire Agreement including but not limited to fuel top up or cleaning charges.
5. HIRE CHARGES
5.1 Hire: The Customer must pay JW the hire charges set out in the Hire Contract and for the full Hire Period. In the event that the standard pricing of the Hire Equipment changes JW may vary the hire charges accordingly and thereby vary the terms of the Hire Contract.
5.2 The Customer must notify JW if the Hire Equipment is to be utilised for longer than 12 hours per day. Notification after the fact may vary the hire charges and thereby vary the Hire Agreement.
5.3 Off Hire: When the Customer no longer requires the Hire Equipment it must advise JW of the intention return or make available for collection the Hire Equipment and coordinate with JW to return and off hire the Hire Equipment.
5.4 Hire charges cease upon return of the Hire Equipment in good working order and condition to JW Premises.
6. OTHER CHARGES
6.1 the Customer agrees to pay;
(a) For any training or instruction of the Hire Equipment beyond that provided in JW standard product information and risk assessment
(b) Costs associated with satisfying access permissions to Customer Premises and sites including attendance to inductions.
(c) Costs of consumables and trade materials e.g. fuel.
(d) Taxes and government charges, levies (including environmental levy) or fines in relation to the hire of the Hire Equipment.
(e) GST subject to a taxable invoice (all amounts in the Hire Contract are exclusive of GST unless specified otherwise). The Customer agrees that there is no sale or other disposal of title to fuel under the Hire Agreement and that JW shall be exclusively entitled to claim any related fuel tax credits.
(f) Credit card or other financial institution charges for payments made by the Customer to JW.
(g) Charges for delivery and collection of Hire Equipment including any outsourced crane hire at JW premises.
(h) Damage Waiver charge if applicable.
(i) For cleaning and repair of Hire Equipment not returned clean and in good working condition.
(j) Mobilisation and demobilisation costs including but not limited to; fitment and removal of ropes and supply of storage reels, function and acceptance witness testing inspections and third party certification, supply of storage pallets for transport purposes as applicable.
(k) For any variations that are necessary or requested by the Customer for whatever reason.
(l) Costs to comply arising from a change in law, code, regulation or Customer policy or guideline after placement of order and for the Hire Period.
7.1 Early Return of Hire Equipment: Where a minimum Hire Period formed a part of the Hire Agreement, return of the Hire Equipment before the end of the minimum Hire Period may result in revised rates and charges to account for the impact to JW of the reduction to the Hire Period.
7.2 Payment Due Date: Customer agrees to pay invoiced charges no later than the date specified in the Hire Contract. If no date is specified then within 30 days of the date of the invoice.
7.3 Late Payment: Customer’s failure to pay to JW within the Due Date will incur late payment charges of 2% per month, compounding monthly. The Customer indemnifies JW (on a full indemnity basis) for all expenses incurred in recovering any unpaid amounts owed.
7.4 Set Off: JW may set-off any monies it owes to the Customer against any monies owed by the Customer to JW
8. CUSTOMER’S HIRE OBLIGATIONS
8.1 Possession and Use: The Customer must not allow nor authorise any other party to use, re-hire or have possession of the Hire Equipment at any time during the Hire Period without written prior consent of JW.
8.2 The Customer remains responsible and liable to JW irrespective of any sub-hire agreement or other arrangement entered into by the Customer.
8.3 The Customer is liable to JW for any acts and omissions of any Sub-Hirer and the employees, agents, contractors and officers of the Sub-Hirer as if they were acts or omissions of the Customer.
8.4 Suitability: The Customer agrees that before accepting the Hire Equipment it has satisfied itself as to the suitability, condition and fitness for purpose of the Hire Equipment without relying upon the skills or judgment of JW or any party purporting to act on behalf of JW. The Customer acknowledges that, to the extent permitted by law, JW has not made any representation or warranty (other than expressly set out in writing) as to the suitability, condition and fitness for purpose of the Hire Equipment or any other matter.
8.5 OPERATION OF THE HIRE EQUIPMENT
The Customer warrants that at all times it will:
(a) Hold all licenses and approvals necessary to hire and use the Hire Equipment and ensure that no restriction of any kind exists that prevents the Customer from entering into the Hire Agreement.
(b) Comply with all Environmental laws, regulations and guidelines applying from time to time and immediately rectify any breach of same caused by the use, possession, transportation or storage of the Hire Equipment.
(c) Uphold its OH&S Duty of Care responsibilities under law;
(d) Ensure persons operating or installing the Hire Equipment are suitably instructed, trained and qualified in its safe and proper use and comply with all relevant laws relating to the use of the Hire Equipment;
(e) Ensure all persons operating the Hire Equipment are fit for work, using adequate personal protective equipment (PPE) and suitable clothing;
(f) Maintain adequate controls to ensure safe and compliant operation of the Hire Equipment relative to the site for example: risk assessment, barriers and controlled work areas and safety warning signs.
(g) Ensure customer supplied anchorage of the Hire Equipment is adequate for the safe and compliant use of the Hire Equipment and ancillary items supplied by Jacks Winches;
(h) Ensure that Jacks Winches Hire Equipment configurations e.g. set pressures and flows, are not altered or adjusted without the prior written approval and consent of Jacks Winches authorised representative.
(i) Ensure Customer provided power supply including air, hydraulic, electric and other supply is adequate and in accordance with JW and manufacturers specified requirements.
(j) Ensure that: interfaces between the Hire Equipment and other equipment are compatible, adequate and fit for purpose and free of contaminants.
8.6 Cleaning and Maintenance: The Customer must:
(a) at its own cost, clean, fuel, lubricate and maintain the Hire Equipment in good condition and in accordance with manufacturers and JW instructions.
(b) Not alter, tamper, adjust or repair the Hire Equipment without the written consent or instruction of JW.
(c) Provide access to JW to maintain, repair and inspect the equipment where necessary including where applicable provision of transport and accommodation at its own cost where Hire Equipment location is remote or subject to site specific requirements.
(d) Return the Hire Equipment to JW in the same good and clean condition it was in when received from JW, ordinary wear and tear excepted.
8.7 Safekeeping: The Customer must ensure that during the Hire Period, the Hire Equipment is;
(a) Stored safely and securely and protected from theft, vandalism, seizure and damage or subject to adverse climatic or environmental conditions including but not limited to airborne contaminants, sea-salt and flooding which may damage the Hire Equipment
(b) Not exposed to hazardous substances e.g. asbestos without prior consent of JW
(c) Not altered, defaced, nor any signs, notices, identifying markings, plates or numbers removed or obscured.
8.8 Hazardous Substances: The Customer must advise JW of any risk of contamination or contact with hazardous substances as soon as it becomes apparent (or should have become apparent). The Customer will:
(a) Provide to JW its asbestos register (in the case of asbestos contamination) and
(b) Decontaminate the Hire Equipment in accordance with applicable laws and regulations and provide to JW the methodology and test results of decontamination.
(c) Incur the charges for decontamination including the continuation of the Hire Period while decontamination is carried out and in the event that decontamination cannot be adequately effected, incur the cost of new replacement of the Hire Equipment.
8.9 Inspection: The Customer consents to JW inspecting the equipment from time to time or in the case of remote locations requesting Customer to provide information from which the condition of the Hire Equipment can be reasonably assessed.
8.10 Safe Loading and Transport: The Customer must ensure:
(a) safe loading, securing and transport of the Hire Equipment in accordance with all laws, regulations, industry and manufacturers guidelines and best industry practice.
(b) Customer’s personnel and contractors abide by JW site safety requirements and related instructions whilst on JW premises.
8.11 Location: The Customer:
(a) Must not without written consent of JW remove the equipment from the location(s) and or situations that have been agreed for the Hire Period.
(b) Agrees to pay the costs of JW attendance to site when it is a Long Distance Location, irrespective of the reason for the attendance.
(c) Must not use the equipment offshore, overwater or underground without JW written prior consent.
8.12 Testing and Tagging; The Customer is responsible to ensure testing and re-tagging of electrical, fire suppression and lifting equipment is carried out when it falls due throughout the Hire period. Alternatively JW may at the Customers request arrange for the testing and re-tagging and re-certification with site and location related expense re-charged to the Customer.
8.13 Fuel: The Customer is responsible for returning the equipment to JW full of fuel or however agreed in writing by JW. Failure to do so will be rectified by JW and related charged to the Customer.
8.14 Wear and Tear: The Customer is responsible for costs to rectify abnormal damages including but not limited to; transport damage, anchorage or sea fastening damage, damage resulting from overloading or incorrect use, tyre damage collision damage.
9. Title to Hire Equipment
9.1 The Customer acknowledges that in all circumstances the title to the Hired Equipment is held by JW, (even if the Customer goes into liquidation, external administration of any kind or becomes bankrupt during the Hire Period) and in no circumstances with the Hire Equipment be deemed to be a fixture. The Customer has no interest of any kind whatsoever in the Hire Equipment other than an interest as a Bailee.
9.2 Except with prior written consent from JW, the Customer will not be entitled to offer, transfer, assign, sub-let, encumber, charge, mortgage, pledge or otherwise deal with the Hire Equipment in any way whatsoever.
9.3 PPSA: If JW determines, in its absolute discretion that the PPSA applies to any transaction under this Hire Agreement the Customer agrees that:
(a) it grants a first ranking security interest and purchase money security interest in the Hire Equipment for the purposes of the PPSA, as security for all Amounts Owing now or in the future, which is a continuing security despite any settlement of account or other matter or thing until a final discharge is given to JW (where applicable) and that it waives the right to receive any verification statement;
(b) it will do all things necessary to enable JW to register and perfect its security interest in the Hire Equipment and, if requested by JW, will not take possession of the Hire Equipment unless JW has registered a financial statement designating a purchase money security interest to them;
(c) JW may appropriate (or re-appropriate despite any prior appropriation) moneys received in respect of the Customer in absolute discretion toward any part of Amount Owing, including to maximise the extent to which it can have recourse to its security interest in the Hire Equipment held by the Customer;
(d) To notify JW in writing of any change of the Customer’s details set out in the credit application; and
(e) the terms of this clause 9.3 prevail over any other term in the Hire Agreement to the extent of any inconsistency.
10. RESPONSIBILITY FOR THE HIRE EQUIPMENT
10.1 Risk in and responsibility for the Hire Equipment passes to the Customer when loading of the Hire Equipment on to any vehicle for transport commences at JW Premises (regardless of whether the Customer collects the Hire Equipment from JW premises or JW delivers the Hire Equipment to the Customer’s Premises).
10.2 Risk in and responsibility for the Hire Equipment passes back to JW when the Hire Equipment is back in the possession of JW at JW Premises.
11. EQUIPMENT BREAKDOWN
11.1 Obligations of Customer: In the event that the Hire Equipment breaks down or becomes unsafe to use during the Hire Period the Customer must:
(a) immediately stop using the Hire Equipment and notify JW;
(b) take all steps necessary to prevent injury occurring to persons or property as a result of the condition of the Hire Equipment;
(c) take all steps necessary to prevent further damage to the Hire Equipment; and
(d) not repair the or attempt to repair the Hire Equipment without JW prior written consent.
(e) Where the Hire Equipment is situated in a Long Distance Location, undertake to arrange for delivery and return of replacements and failed Hire Equipment to and from JW Premises at no cost or penalty to JW; and
(f) Arrange flights, accommodation and subsistence at no cost or penalty to JW, for JW personnel required to attend the site as part of resolving the breakdown of the Hire Equipment.
11.2 Obligations of JW: In the event that the Hire Equipment breaks down or becomes unsafe to use (through no act or omission of the Customer including misuses, recklessness and negligence), JW will:
(a) repair the Hire Equipment or provide suitable substitute Hire Equipment ex-JW Premises when reasonably possible after being notified by the Customer;
(b) provide suitable qualified personnel ex-JW Premises at no cost to the Customer, to repair or otherwise resolve the breakdown.
(c) not impose a hire charge for that portion of the Hire Period the Equipment could not be used, nor charge the costs associated with any repair or replacement of the Hire Equipment; and
(d) not be liable for any expenditure, damages, losses, costs or inconvenience incurred by the Customer arising from a breakdown of Hire Equipment, however caused, including as a result of JW requiring time to assess, repair and or replace the Hire Equipment.
12. LOST, STOLEN OR DAMAGED HIRE EQUIPMENT
12.1 The Customer is responsible for the Hire Equipment and any accessory and tools during the Hire Period. If the Hire Equipment is lost, stolen or damaged during the Hire Period or becomes unsafe to use due to any act or omission of the Customer, the Customer is liable to JW for and must indemnify JW for:
(a) The full cost of either:
(i) repairing the Hire Equipment
(ii) replacing the Hire Equipment with new equipment, as determined by JW in its sole and absolute discretion; and
(b) any costs whatsoever arising from or in connection with the loss, theft or damage to the Hire Equipment; and
(c) any lost revenue to JW arising from or in connection with the loss, theft or damage to the Hire Equipment
12.2 If the Customer has paid the Damage Waiver, the Customer’s liability is limited as provided in clause 13 below.
13. DAMAGE WAIVER FEE
13.1 The Customer may elect to either pay a fee for loss, theft or damage of the Hire Equipment (“Damage Waiver Fee”) or obtain insurance covering the full replacement value of the Hire Equipment. Subject to clause 13.13, where the Customer elects to pay the Damage Waiver Fee, JW agrees to limit the Customer’s liability for loss, theft or damage to the Hire Equipment during the Hire Period if:
(a) the Customer submits to JW within 5 business days:
(i) a written Police report of the loss or damage to the Hire Equipment (unless JW provides written confirmation that such report is not required); and
(ii) any other written, photographic or other evidence reasonably requested by JW (which may include sworn statements and statutory declarations); and
(b) the Customer pays to JW the Damage Waiver excess which is the greater of:
(i) AUD $500 per item of Hire Equipment (or the actual cost of replacement or repair if less than $500); or
(ii) the amount equal to 15% of the cost of the repair (if the Hire Equipment can be repaired); or
(iii) The amount equal to 15% of the new replacement cost of the Hire equipment (if the hire Equipment is lost, stolen or damaged beyond repair).
13.2 The Damage Waiver fee will automatically be added to the Hire Charges and will appear on the invoice issued to the Customer.
13.3 Even if the Customer pays the Damage Waiver Fee, the Customer is liable for and indemnifies JW for all loss and damage to the Hire Equipment if:
(a) the Customer has paid the Damage Waiver Fee after the loss or damage has occurred;
(b) JW reasonably believes that the Customer failed to take reasonable precautions to protect and secure the Hire Equipment;
(c) the Hire Equipment is, or is ordinarily used offshore, over water or in underground mines or is located, used, loaded or unloaded, transported on r over water, wharves, bridges or vessels of any kind;
(d) the loss or damage is to:
(i) tyres and tubes;
(ii) glass including breakage;
(iii) caused by vandalism including graffiti on the Hire Equipment;
(iv) to the Hire Equipment paintwork;
(v) due to the wrongful conversion of the Hire Equipment or any components of the Hire Equipment;
(vi) the loss or damage was caused or contributed by:
(vii) a breach of the Hire Agreement
(viii) an act or omission of the Customer
(ix) the use of the Hire Equipment in violation of any relevant laws or regulations or contrary to JW or manufacturers instructions;
(x) a lack of, or faulty lubrication or general servicing of the Hire Equipment;
(xi) the misuse, abuse, overloading of or incorrect loading of the Hire Equipment or any of its components;
(xii) the overloading or artificial electrical current to motors or other electrical appliances or devices, including use of under-rated or excessive length of extension leads on electrical powered tools and machines;
(xiii) an exposure to any corrosive or caustic substance, such as cyanide, salt water, acid, etc.; and
(xiv) the transport of the Hire Equipment, except where transported by JW.
14.1 If the Customer elects not to pay the Damage Waiver fee, it must take out and maintain a policy of insurance that covers loss or damage to the Hire Equipment during the Hire Period for not less than the full new replacement cost of the Hire Equipment (“Hire Equipment Insurance”).
14.2 Evidence in the form of a certificate of currency for the policy and any renewal must be given to JW whether specifically requested or not and in any event no later than 7 days after the expiry of the previous certificate of currency (where applicable).
14.3 Over Water, Offshore and Underground: If required by JW the Customer must also take out and maintain, for the duration of the Hire Period, insurance for the Hire Equipment which will be used offshore, over water or underground. Such insurance cover must:
(a) include JW as an insured so that JW is deemed a separate insured under the policy. Any non-disclosure or misrepresentation by one insured must not prejudice the right of the other insured to claim under any insurance policy.
(b) cover JW liability as a principal in connection with the performance of the Hire Agreement ; and
(c) contain provision where all right of subrogation or action against any of the persons comprising the insured are waived.
15. STATUTORY GUARANTEES
15.1 Clauses 15.2 and 15.3 only apply if the Customer is deemed a “Consumer” for the purposes of section 3 of the Australian Consumer Law (“ACL”).
15.2 JW Equipment comes with a guarantee that cannot be excluded under the ACL. The Customer is entitled to a replacement or refund for a major failure and compensation for any other reasonably foreseeable loss or damage. The Customer is also entitled to have the goods repaired or replaced if the goods fail to be of acceptable quality and the failure does not amount to a major failure.
15.3 To the extent JW Equipment is not of a kind ordinarily acquired for personal, domestic, household use or consumption, JW may limit its liability to repair or replacement of the Equipment or the payment of the cost of repairing or replacing the Equipment, or supplying services again or payment for the cost of supplying services again, in accordance with section 64A of the Australian Consumer Law.
16. INDEMNITIES AND EXCLUSIONS OF LIABILITY
16.1 Nothing in this Hire Agreement is intended to exclude, restrict or modify any guarantee, term, condition or warranty implied or imposed by law (including the ACL) which cannot be lawfully excluded or limited.
16.2 To the extent permitted by law (unless otherwise expressly set out in this Agreement), all terms, conditions, warranties, undertakings, inducements or representations whether express or implied, statutory or otherwise relating to JW obligations under the Hire Agreement are excluded.
16.3 The total liability of JW (subject to clause 15.1) for any claim is the total Hire Charges payable by the Customer at the site at which the claim arose.
16.4 JW is not liable for:
(a) Consequential loss or damage (including but not limited to loss of actual or anticipated revenue, business interruption, loss of production or economic loss of any kind) in contract, tort, under statute or otherwise and
(b) any Claims for personal injury, illness or death to any person or damage to any property or any other loss or damage if any kind whatsoever,
caused by or arising from or in relation to the Hire Equipment or this Hire Agreement.
16.5 The Customer is liable for and indemnifies JW against all Claims arising out of it in connection with Customer’s hire and use of the Hire Equipment or breach of the Hire Agreement.
16.6 Each indemnity is a continuing obligation and survives termination or expiration of tis Hire Agreement. It is not necessary for JW to incur expense or make any payment before enforcing a right of indemnity under this Hire Agreement. The Customer must pay on demand under this Hire Agreement.
16.7 For the purpose of clause 16, use of Hire Equipment operated by a person supplied by JW will be deemed to be use of the Hire Equipment by the Customer.
16.8 Except where clause 4.1 applies, the Customer may not make a Claim under or in connection with an invoices issued by JW unless the Claim has been notified to JW in writing * by post, email or fax) within 2 weeks of the earlier of:
(a) the relevant facts, matters or circumstances on which the Claim is based occurring ; or
(b) if the claim relates to an invoice, the date of the invoice.
17.1 JW may terminate the Hire Agreement with immediate effect by serving a written notice on the Customer if the Customer:
(a) becomes unable to lawfully perform the Hire Agreement;
(b) suffers an Insolvency Event; or
(c) commits a breach of the Hire Agreement which it does not remedy (if capable of remedy) within 5 Business Days of receiving written notice of breach.
17.2 JW may also terminate the Hire Agreement at any time for convenience by giving the Customer at least 24 hours’ notice.
17.3 The right of termination is in addition to any other rights under the Hire Agreement.
18. RECOVERY OF HIRE EQUIPMENT
18.1 If JW has terminated the Hire Agreement with the Customer pursuant to clause 17, JW may take all steps necessary (including legal action) to recover the Hire Equipment, including entering any site occupied by the Customer without prior notice to the Customer
19.1 Severability: If any part if this Hire Agreement becomes void or unenforceable for any reason the that part will be severed in respect only with the intent that all remaining parts will continue to be in full force and effect and unaffected by the severance of the other parts.
19.2 Governing Law and Jurisdiction: The Hire Agreement is governed by the laws of Western Australia and each party submits to the non-exclusive jurisdiction of that jurisdiction.
19.3 Disputes: In the event that there is a dispute between the parties to this Hire Agreement or the Customer wishes to make a Claim, the Customer must notify JW in writing (to the JW Premises from which the Equipment was hired) of the reasons for the dispute or details of the claim (including reference to any invoice) within 7 Business Days from the date of the claim or dispute arose (or date of invoice).
19.4 The Customer acknowledges and agrees that failure to comply with the time frame for notification of any claim or dispute will mean the Customer is barred from raising any Claims or dispute with JW after that time period has passed.
19.5 Within 14 Business Days of notification of any dispute or Claim, representatives of both parties shall meet to endeavour to resolve the Claim or dispute.
19.6 If the Claim or dispute cannot be resolved, the chief executive officers of each party shall confer within 14 days of any meeting referred in clause 19.5 to endeavour to resolve the Claim or dispute.
19.7 If the parties fail to resolve the Claim or dispute pursuant to this clause, and prior to commencing proceedings, the Claim or dispute must first be referred to arbitration and subject to the Institute of Arbitrators and Mediators Australia for the Conduct of Commercial Arbitration.
19.8 Security of Obligations: As security for the obligations and liabilities of the Customer under the Hire Agreement, the Customer (and any guarantors) charge for its performance of its obligations and liabilities, all of its legal and equitable interest (both present and future) of whatever nature held in any and all real property and any other assets. The Customer (any of its guarantors) agree, on request by JW, to execute any documents and do all things necessary required by JW to register a mortgage security or other security interest over any real property or other asset. The Customer (and its guarantors) must indemnify JW against all costs and expenses incurred by JW in connection with the preparation and registration of any such mortgage or security documents. The Customer (and its guarantors) also consents unconditionally to JW lodging a caveat or caveats noting its interest in any caveat able property.
19.9 Entire Agreement: The Hire Agreement comprises the entire agreement between the parties. No additional terms and conditions proposed by the Customer (including the Purchase Order) apply to the hire of the Hire Equipment unless agreed in writing by JW.
19.10 No Reliance; The Customer acknowledges that JW or any person on JW behalf has not made any representation or inducement to the Customer to enter into this Hire Agreement and the Customer has not relied on any representation or inducement except those representations or inducements contained in this Hire Agreement.
19.11 Variation: JW may at any time vary these Terms and Conditions of Hire which will come into effect 14 days after notice is given to the Customer where possible by email or otherwise by notice through JW website. Any other variation of the Hire Agreement must be agreed in writing by the Customer and by JW.
19.12 Privacy: JW may collect personal information about a Customer and JW will treat this information in accordance with National Privacy Principles.
19.13 The information may be used to provide services to the Customer, to fulfil administrative functions associated with these services (for example assessment of credit worthiness), to enter into contracts with the Customer or third parties and for marketing and client relationship purposes. If the Customer does not provide to JW all personal information required by JW, JW may not be able to hire the Equipment or provide associated services to the Customer. JW may disclose the Customers information to JW service providers and contractors from time to time to help provide and market JW services to the Customer. Generally the Customer has a right to access personal information JW holds about the Customer.
19.14 The Customer consents to and authorises JW to use and disclose the Customer’s personal information to any credit provider or credit reporting agency and to JW service providers, contractors and affiliated companies from time to time to help JW services to the Customer.
19.15 Notice to Customer: Any document or notice under this Hire Agreement may be given by:
(a) In the case of a notice to JW – by posting it to JW registered office and branch address
(b) In the case of a notice to the Customer – by posting it to the Customer’s address (as stated in the credit application or last notified by the Customer in writing to JW) or by email to the Customer’s address.
19.16 Any notice given by post will be deemed to have been delivered on the third business day after posting and if by email on the day of transmission if before 5.00pm or the following business day if sent after 5.00pm.
19.17 No Waiver: No delay or omission to exercise any right, power or remedy accruing to JW upon any 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 any right of JW to take action or to make a Claim in respect of a continuing breach or to be acquiescence to it.
19.18 Withdrawal of Credit Accommodation: Any credit accommodation granted by JW to the Customer may be reviewed at any time without notice and refit withdrawn. The Hire Agreement may be terminated and the Customer will owe to JW any outstanding amounts until the Hire Equipment is back in the possession of JW.
19.19 Authority of the Customer: The Customer warrants and agrees that the person signing the Hire Agreement for and on behalf of the Customer has the authority of the Customer to enter into and bind the Customer to the Hire Agreement. The Customer indemnifies JW against all Claims arising out of a breach of the warranty contained in this clause.
19.20 Previous Editions: This edition of the Standard Terms and Conditions of hire replaces and supersedes all terms and conditions previously issued by JW.
19.21 Time of the Essence: Time is to be of the essence of all obligations of the Customer in the Hire Agreement.
19.22 Survival: Any provision of the Hire Agreement which is capable of having effect after the expiry or termination of these Standard Terms and Conditions of Hire survive and remain in full force and effect.