STANDARD HIRE CONDITIONS SINGAPORE
Standard Hire Conditions
- 1. Definitions
1.1 “Cease Charge Date” means the date upon which the Owner may cease paying Hire Charges, provided that the conditions set out in the Cease Charge Notice are satisfied.
1.2 “Cease Charge Notice” means a notice issued by the Owner to the Customer in accordance with clause 7.4.
1.3 “Chattel Paper” has the same meaning as in the PPS Law.
1.4 “Credit Agreement” means the agreement between the Owner and the Customer for the hire or supply of Plant on credit, formed by written acceptance by the Owner of the Customer’s Account Application Form.
1.5 “Customer” means the person, firm, organisation, partnership, corporation or other entity hiring Plant from the Owner, as identified in the Hire Agreement and, where the context permits, includes its agents, employees, representatives and contractors.
1.6 “Damage Waiver” means the limitation of the Customer’s liability to the Owner for loss or damage to the Plant on the terms set out in clause 14.
1.7 “Damage Waiver Amount” means the damage waiver instalments set out in the Hire Agreement.
1.8 “Delivery Date” has the meaning set out in clause 5.1.
1.9 “Delivery Point” has the meaning set out in clause 5.1.
1.10 “Environmental Laws” means any statute, policy directions or regulations made or issued by a regulatory body or government body regulating or otherwise relating to the environment including, without limitation, the use or protection of the environment.
1.11 “Good Operating Practice” means the highest practical standards from time to time, including practices, methods and acts, together with the exercise of that degree of skill, diligence, prudence and foresight that reasonably would be expected from an experienced and competent person under conditions comparable to those applicable to the relevant activities in light of facts which reasonably should have been known at the time, and consistent with applicable laws and authorisations.
1.12 “Guarantor” means a person who guarantees to the Owner the performance of the Customer.
1.13 “Hire Agreement” means the agreement between the Owner and the Customer for the hire of Plant formed on acceptance of the Order for Hire by the Owner, such agreement to be on the terms set out in:
(a) any Credit Agreement;
(b) these Standard Conditions of Hire, and
(c) the Order for Hire.
1.14 “Hire Charges” means the rental or hire instalments or sums set out in the Hire Agreement.
1.15 “Hire Period” means the rental or hire period set out in the Hire Agreement, commencing on the date determined in accordance with clause 6.
1.16 “Intellectual Property” means all rights in any knowledge of secret processes, technical know-how, techniques, discoveries, inventions, ideas, research, engineering and manufacturing methods, practices, systems, formulae, drawings, designs, specifications, manuals, trade secrets and special purpose computer programmes, financial, marketing and other confidential information and data subsisting in or relating to the Plant, the supply, hire or sale of the Plant, the Owner or the Owner’s business.
1.17 “Last Date” has the meaning set out in clause 6.5(c).
1.18 “Off-Hire Date” has the meaning set out in clause 6.5(b).
1.19 “Off-Hire Notice” has the meaning set out in clause 6.5(b).
1.20 “Other Charges” has the meaning set out in clause 7.2.
1.21 “Other Services” has the meaning set out in clause 8.1.
1.22 “Order for Hire” means an offer by the Customer to hire the Plant from the Owner.
1.23 “Owner” is Jacks Winches Pte Ltd CRN 20091667G and/or its associated entities and subsidiaries.
1.24 “Payment Dates” means the dates on which the Hire Charges are payable as set out in the Hire Agreement.
1.25 “Plant” means all equipment (including but not limited to accessories, add-ons and parts) and services supplied by the Owner to or at the direction of the Customer from time to time and, in relation to any security interest in the Plant, includes any proceeds.
1.26 “PMP” means a preventative maintenance program operated by the Owner and/or its agents in relation to the Plant.
1.27 “Remote Area” is a location in excess of 50km from the Owner’s nearest branch or premises.
1.28 “Standard Conditions of Hire” means these conditions of hire, as amended from time to time.
1.29 “Travel Charge” means an amount, payable by the Customer for travel costs and expenses and time incurred by the Owner and/or its agents.
- 2. Quotation
2.1 Any quotation issued by the Owner is not an offer to hire or provide any Plant and may be withdrawn or varied at any time prior to a related Order for Hire being accepted by the Owner. A quotation will only be valid for 30 days from its date of issue unless extended in writing by the Owner. All prices quoted by the Owner are subject to variation and relate to the hire or supply of the Plant on these Standard Conditions of Hire.
- 3. Order for Hire
3.1 The Customer may request the Owner to hire or supply Plant to the Customer in accordance with the Standard Conditions of Hire by providing an Order for Hire to the Owner. Any Order for Hire received by the Owner is subject to acceptance by the Owner in writing. The Owner may accept or reject an Order for Hire in whole or in part in its absolute discretion. Acceptance of an Order for Hire by the Owner will not be or imply acceptance of any terms or conditions in the Order for Hire which are inconsistent with the Standard Conditions of Hire or, if the Customer has a credit account with the Owner, which are inconsistent with the terms of the relevant Credit Agreement.
3.2 The Customer cannot, after a Hire Agreement is formed, cancel or amend the Order for Hire on which the Hire Agreement is based in any way without the prior written approval of the Owner. The Owner may, on consenting to an amendment, revise its Hire Charges and other terms of supply and amend the Hire Agreement to reflect the change. In the event of an amendment or cancellation, the Customer must reimburse the Owner for all costs and expenses already incurred by the Owner and any additional costs and expenses resulting from the amendment or cancellation.
3.3 For the avoidance of doubt and notwithstanding any other provision in clauses 2 and 3, each and every hire or supply of Plant by the Owner and each and every agreement to supply or hire Plant by the Owner in any form will, unless otherwise expressly agreed in writing by the Owner, be on the terms set out in these Standard Conditions of Hire.
- 4. Title to Plant
4.1 The Customer acknowledges that in all circumstances (including if the Customer goes into liquidation or becomes bankrupt during the Hire Period) the Owner retains title to the Plant, including any accessory, part or add-on. The Customer acknowledges and agrees that any replacement part, accessory or add on and any additional part, accessory or add on attached or incorporated into the Plant forms part of the Plant and becomes the Owner’s property.
4.2 The Customer has the right to use the Plant during the Hire Period in accordance with the terms of the Hire Agreement. The rights of the Customer to use the Plant are as a Bailee only. The Customer must ensure that it has all necessary rights, licences, permits and expertise to use the Plant.
4.3 The Customer must not attach the Plant to any property without the Owner’s consent. If the Plant is attached to land:
(a) it does not become a fixture and the Owner can remove it; and
(b) if the Customer is not the owner of the land, the Customer must acquire from the land owner (including any mortgagee) an agreement that the Plant is not a fixture.
4.4 The Customer must protect the Owner’s interests in the Plant and must not do anything inconsistent with those interests. The Customer must not and will not be entitled to offer, sell, assign, sub-let, mortgage, pledge or otherwise deal with or grant a Security Interest in respect of the Plant.
4.5 If the Owner requests, the Customer must put plates, stickers or marks on the Plant which identifies the Owner’s interest in the Plant. The Customer must not alter, deface, remove or erase any notices, safety information, identifying mark, plate or number on the Plant.
4.6 The Owner may, without the Customer’s consent, transfer the Plant, its interest in any Credit Agreement or Hire Agreement or grant another person an interest (including a Security Interest) over the Plant or any Credit Agreement or Hire Agreement.
- 5. Delivery
5.1 The Plant will be delivered and made available to the Customer “ex-works” (as that term is defined in Incoterms 2012) at the Owner’s premises (or such other location nominated by the Owner acting reasonably) (Delivery Point) and all costs of removing the Plant from and returning the Plant to the Delivery Point will be paid by the Customer. Delivery will be deemed to occur when the Customer is informed by the Owner that the Plant is ready for collection from the Delivery Point (Delivery Date).
5.2 Any anticipated date which the Owner may advise the Customer that it will make delivery of the Plant will be regarded as a best estimate. The Owner will not be responsible for any delays in delivery or installation or failure to deliver the Plant due to causes beyond its control including but not limited to acts of God, war, terrorism, mobilisation, civil commotion, riots, embargoes, orders or regulations or governments of any relevant jurisdiction, fires, floods, strikes, lockouts or other labour difficulties or shortages of, or inability to obtain, shipping space or land transportation. The Customer acknowledges and agrees that the Owner will not be liable for and the Customer releases the Owner from any liability in respect of any loss, damage or expense that the Customer may suffer or incur arising out of, or contributed to by, any delays in obtaining the Plant.
5.3 If, as a result of cause beyond the Owner’s reasonable control, the Owner determines that it will not be able to deliver all or part of the Plant within a reasonable timeframe, the Owner may terminate the Hire Agreement. On such termination, both parties release each other from any claims in relation to the Hire Agreement and in respect of the termination.
5.4 The Customer must remove the Plant from the Delivery Point within 7 days of the Delivery Date unless otherwise agreed in writing by the Owner.
5.5 If the Owner agrees, and subject to any other conditions as the Owner may require in its absolute discretion, to arrange for the Plant to be freighted to or otherwise provided to the Customer at a location other than the Delivery Point:
(a) the Customer will be deemed to take delivery of the Plant and the Plant will be at the Customer’s risk from the earlier of the Delivery Date and the date that the Plant leaves the Delivery Point;
(b) all costs and expenses associated with packing, transporting and removing the Plant from the Delivery Point and providing it to the Customer at a location other than the Delivery Point must be paid for by the Customer;
(c) the Owner will not be liable for any delay or failure to supply the Plant to the Customer at a location other than the Delivery Point; and
(d) the Customer releases and discharges the Owner from all claims and demands on the Owner and any loss or damage whatsoever and whenever caused to the Customer or any other person of any nature or kind and indemnifies and holds the Owner harmless from and against all liabilities, losses, damages, costs or expenses incurred or suffered by the Owner and from and against all actions, proceedings, claims or demands made against the Owner arising from or associated with the Owner providing the Plant to the Customer at a location other than the Delivery Point.
5.6 The Customer must inspect all Plant immediately upon the Plant being delivered and notice of any claim by the Customer in relation to the Plant (including but not limited to any claim that the Plant was damaged prior to delivery or does not accord with the relevant Hire Agreement) must be made by the Customer in writing and received by the Owner within 14 days of the Delivery Date and, subject to clause 16, any claims not made within that period will be deemed to be waived.
- 6. Hire Period
6.1 The Hire Period commences when the Plant is delivered. The Hire Period includes weekends and public holidays and is irrespective of the time the Plant is being used.
6.2 The Customer must pay the Hire Charges for the whole of the Hire Period and the Customer is entitled to use the Plant for the Hire Period. Any variation to the Hire Period must be agreed by the Owner.
6.3 If the Customer returns the Plant to the Owner after the end of the Hire Period, the Customer will remain liable to pay the Hire Charges and Other Charges for the Plant until it is returned to the Owner, with the Hire Charges being charged at a daily rate for each day after the end of the Hire Period.
6.4 If the Customer wants to return the Plant before the end of the Hire Period, the Customer will remain liable for all Hire Charges and Other Charges payable to the Owner for the entire Hire Period.
6.5 If the Owner agrees, and subject to such conditions as the Owner may require in its absolute discretion, that the Owner may collect the Plant rather than requiring the Customer to deliver the Plant to the Owner:
(a) the Owner will provide written notice to the Customer confirming that the Owner agrees to collect the Plant and any conditions of such agreement;
(b) the Customer must give written notice to the Owner stating the date on which the Plant will be available for collection (Off-Hire Date) from the place where the Plant was used or ordinarily kept (as notified to the Owner pursuant to clause 10) or such other place as may be agreed by the Owner (Off-Hire Location) and confirming that any conditions set by the Owner for the purposes of this clause 6.5 have been satisfied or will be satisfied by the Off-Hire Date (Off-Hire Notice);
(c) subject to the Customer making the Plant available on the Off-Hire Date and any conditions set by the Owner for the purposes of this clause 6.5 being satisfied to the Owner’s satisfaction, the Customer will be deemed for the purposes of clauses 6.3 and 19.1(a) to have returned the Plant to the Owner on the earlier of the date the Plant is removed by the Owner or its agents from the Off-Hire Location and the date being 7 days after the Off-Hire Date (Last Date); and
(d) notwithstanding that the Customer will be deemed to have delivered the Plant to the Owner on the Last Date, in consideration for the Owner agreeing to collect the Plant, the Customer agrees and acknowledges that it is responsible for, will indemnify the Owner against and will take all steps necessary to prevent any loss or damage to the Plant at any time prior to the Plant being removed by the Owner or its agents from the Off-Hire Location
- 7. Hire Charges and Other Charges
7.1 The Customer will pay the Owner the Hire Charges, together with any Other Charges, commencing from the Delivery Date, on the Payment Dates set out in the Hire Agreement or, if no period is stated in the Hire Agreement, on the Delivery Date and then monthly thereafter. The Customer is not entitled to any discount or rebate if the Plant is not used by the Customer for the entire Hire Period. Additional Hire Charges may apply if the Plant is used for more than 8 hours per day.
7.2 In addition to the Hire Charges, the Customer must pay the following amounts, if determined by the Owner to be applicable to the Plant hired, (Other Charges) on the earlier of the next Payment Date or 30 days after receiving a demand from the Owner to do so:
(a) consumables and/or trade materials including but not limited to fuel, grease, oil, seals and lubricants supplied or provided by the Owner;
(b) rope and any costs, expenses or liabilities associated with fitting or spooling such rope to or on the Plant;
(c) any costs, expenses or liabilities associated with any pre-dispatch function testing and audit requirements;
(d) any costs associated with the loading or unloading of Plant including, without limitation, crane hire, demurrage and labour;
(e) any levies, permit costs, safety certifications or similar expenses relating to the Plant or its use;
(f) any costs, expenses or liabilities associated with the use, application or disposal of potentially dangerous goods or environmental contaminants including oil or grease;
(g) any environmental levy set out in the Hire Agreement;
(h) the Damage Waiver Amount (unless otherwise specified in the Hire Agreement or the Customer produces to the Owner a certificate of currency for a policy of insurance that, in the opinion of the Owner, adequately covers loss or damage to the Plant for an amount not less than the full new replacement cost of the Plant);
(i) if the Plant is located in a Remote Area, the Travel Charge for the Owner and/or its agents to travel to and attend the location where the Plant is located to conduct any PMP and to inspect, secure and to undertake any other maintenance, servicing or repair of the Plant;
(j) if the Owner agrees to provide or collect the Plant to or from a location other than the Delivery Point or to install the Plant, the cost of such delivery, transport, collection or installation; and
(k) stamp/hire duty, GST and all other applicable taxes, duties, levies, penalties and any other government charges imposed on the Hire Agreement or in respect of the hire of the Plant (unless the Customer claims exemption from such duty or tax and the Customer provides to the Owner appropriate exemption certificates to the Owner’s satisfaction).
7.3 Notwithstanding clauses 7.1 and 7.2, if the Customer possesses a current credit account with the Owner, then payment will be due within the period specified in the Credit Agreement.
7.4 Notwithstanding clauses 6.2 and 7.1, if the Owner agrees, subject to such conditions as the Owner may require in its absolute discretion, that the Customer may cease paying the Hire Charges prior to the conclusion of the Hire Period:
(l) the Owner will issue a Cease Charge Notice to the Customer which sets out the Cease Charge Date and any conditions or requirements which the Owner requires the Customer to comply with as a condition of the Owner’s consent;
(m) if the Customer complies with all of the conditions or requirements set out in the Cease Charge Notice, the Customer will cease to be liable to pay the Hire Charges on and from the Cease Charge Date until the end of the Hire Period; and
(n) for the avoidance of doubt, unless otherwise expressly set out in the Cease Charge Notice, the Customer will remain liable for and must comply with all obligations and responsibilities of the Customer (other than the payment of the Hire Charges on and from the Cease Charge Date) as set out in the Hire Agreement for the Hire Period, including but not limited to the obligations set out in clauses 9 and 13 and the payment of Hire Charges for the period prior to the Cease Charge Date.
7.5 The Customer acknowledges that the Owner may refuse to accept or impose an additional charge for accepting payments by credit card or in a currency other than Australian dollars.
7.6 If a Customer does not pay any amount payable by the Customer pursuant to the Hire Agreement or any Credit Agreement by the relevant Payment Date, a late payment fee of 2% per month, compounding monthly, may be imposed. In addition, without limiting clause 17, the Customer will be liable to indemnify the Owner for all expenses incurred by the Owner in recovering or seeking to recover any amounts which the Customer fails to pay by the Payment Date (including any commission payable to any commercial or mercantile agents and legal costs).
7.7 All amounts payable by the Customer to the Owner, whether or not such amounts are due for payment, will immediately become due and payable if:
(a) any payment by the Customer to the Owner is overdue, in whole or in part;
(b) the Customer is otherwise in default under any Hire Agreement or Credit Agreement or if any Hire Agreement or Credit Agreement is terminated; or
(c) the Customer or any Guarantor becomes bankrupt or commits any act of bankruptcy or enters into an arrangement with its creditors or has judgement entered against it in any court or, being a company, has a provisional liquidator, voluntary administrator, receiver or manager appointed or otherwise suffers some form of insolvency administration.
7.8 If the Customer makes a payment to the Owner at any time, whether in connection with a Hire Agreement or otherwise, the Owner may apply the payment to any part of the amounts owed to it by the Customer as the Owner sees fit. The Owner may set-off against any credit owed to the Customer any amount owing by the Customer to the Owner.
- 8. Other Services
8.1 If the Owner agrees to provide any other services to the Customer other than the hire of the Plant, including but not limited to the installation of the Plant, instructing the Customer, its personnel or any other person in the use or operation of the Plant or operating or supplying an operator for the Plant (Other Services):
(a) the Owner will provide the Other Services on the terms nominated by the Owner in its absolute discretion;
(b) all costs, expenses and liabilities incurred or to be incurred by the Owner or otherwise associated with providing the Other Services must be paid by the Customer to the Owner on demand; and
(c) the Owner will not be liable for any delay or failure to supply the Other Services within any time period nominated or requested by the Customer.
8.2 Without limiting clause 17, the Customer releases and discharges the Owner from all claims and demands on the Owner and any loss or damage whatsoever and whenever caused to the Customer or any other person of any nature or kind and indemnifies and holds the Owner harmless from and against all liabilities, losses, damages, costs or expenses incurred or suffered by the Owner and from and against all actions, proceedings, claims or demands made against the Owner arising from the provision of the Other Services.
8.3 Without limiting any other provision in this clause 8, any employee, agent or contractor of the Owner supplying or providing Other Services for or on behalf of the Owner to the Customer will be deemed to be an employee of the Customer for the period in which the person is providing the Other Services.
8.4 Without limiting any other provision in this clause 8 or clause 4, if the Other Services include the sale of goods or other items to the Customer, title and property in such goods or other items will only pass to the Customer on payment by the Customer in full of the amount due from the Customer to the Owner in relation to the goods or other items (as notified by the Owner to the Customer in writing) and until then the Customer only has a right to use the goods or other items, The Customer must not sell, transfer, hire, lease, dispose of, grant any Security Interest over, encumber or part with possession of such goods or other items until the Customer has paid the Owner for the goods or other items in full.
- 9. Customer’s Hire Obligations
9.1 The Hire Agreement is personal to the Customer and the Customer will not, subject to clause 11, allow, authorise or permit any other person or entity to use or have possession of the Plant at any time during the Hire Period.
9.2 The Customer warrants that at all times it will:
(a) locate and operate the Plant safely, strictly in accordance with all laws, regulations, approvals, licences or permits required for or relating to the use and possession of the Plant, only for its intended use and in accordance with the Owner’s and manufacturer’s instructions or specifications;
(b) ensure the persons operating or installing the Plant are suitably competent, instructed and trained in its safe and proper use and where necessary hold a current certificate of competency and are licensed to use it;
(c) maintain the Plant in the same good and clean condition it was in when the Owner delivered it;
(d) display and maintain all safety signs and instructions (as required by law), and ensure that all instructions and signs are observed by operators of the Plant and the controller(s) of the site;
(e) ensure all persons operating the Plant wear suitable clothing and protective equipment as required or recommended by the manufacturer or by the Owner;
(f) ensure that no persons operating the Plant are under the influence of drugs or alcohol and that no persons carry illegal, prohibited or dangerous substances in or on the Plant;
(g) conduct a job safety analysis prior to using the Plant and ensure that the use, operation and possession of the Plant is in accordance with Good Operating Practice; and
(h) comply with all Environmental Laws and immediately rectify any breach of an Environmental Law or any environmental contamination caused or contributed to by the use of the Plant.
9.3 The Customer must, at the Customer’s cost, take proper care of the Plant and keep it clean and in good working order (fair wear and tear excluded), including but not limited to:
(a) clean, fuel, lubricate, service and maintain the Plant in good condition and in accordance with the manufacturer’s and the Owner’s instructions and specifications at the Customer’s cost;
(b) doing all things necessary to maintain the supplier’s or manufacturer’s warranties;
(c) arranging the re-testing and re-tagging of the electrical equipment and rigging in accordance with the manufacturer’s and Owner’s instructions and specifications and any applicable Australian Standard(s) and other regulatory requirements;
(d) complete and accurately maintain any logbooks, maintenance records or other records relating to the use, operation, inspection, alteration, servicing or maintenance of the Plant and make such records available to the Owner upon request; and
(e) not in any way alter, modify, tamper with, damage or repair the Plant without the Owner’s written consent.
9.4 If required by law in order to use, operate or possess the Plant or as otherwise requested by the Owner in writing, the Customer must register the Plant and obtain such permits or licences required for the possession, operation or transport of the Plant and maintain such registration, licences and permits.
9.5 The Customer will ensure the safe loading, securing and transporting of all Plant in accordance with all laws, manufacturers guidelines and Good Operating Practice. The Customer and any transporting contractor will observe any safety directions advised by the Owner and/or manufacturer of the Plant for its loading and safe handling.
9.6 The Customer agrees to use, operate and possess the Plant at the Customer’s risk. The Customer releases and discharges the Owner from all claims and demands on the Owner and any loss or damage whatsoever and whenever caused to the Customer of any other person of any nature or kind, and indemnifies and holds the Owner harmless from and against all liabilities, losses, damages, costs or expenses incurred or suffered by the Owner and from and against all actions, proceedings, claims or demands made against the Owner arising in either case as a result of, or which has been contributed to by, the Customer’s possession, operation or use of the Plant.
- 10. Location
10.1 The Customer must ensure that during the Hire Period the Plant is stored safely and securely and is protected from theft, seizure and damage.
10.2 The Customer must notify the Owner in writing of the location of where the Plant is to be used or ordinarily kept, such location to not be outside Western Australia unless otherwise agreed by the Owner in writing. The Customer must not change the place where the Plant is used or ordinarily kept without the Owner’s consent.
10.3 The Customer must allow the Owner to enter any place where any Plant is located to inspect and test the Plant, to ensure that the terms of the Hire Agreement are being complied with or to exercise any of the Owner’s rights. If the Plant is kept at a premises or location which the Customer does not own, the Customer must get all necessary consents from the owner of the premises or location (including any mortgagee) to allow the Owner to inspect and, if necessary, remove the Plant.
- 11. Sub-leasing
11.1 The Customer must not lease, hire or otherwise part with possession of any Plant which is the property of the Owner except in accordance with clause 11.2.
11.2 If the Customer leases or hires the Plant to another person, the Customer must:
(a) have the terms on which the Customer leases or hires the Plant to another person approved by the Owner before the Customer enters into the lease or hire arrangement or gives possession of the Plant to that person;
(b) have and maintain a policy which is at least consistent with the Customer’s obligations in this clause 11;
(c) the Customer must comply with clause 11.4 at all times;
(d) require the other person to acknowledge the Owner’s Security Interest in the Plant and that the other person’s interest in the Plant is subject to or subordinate to the Owner’s Security Interest;
(e) give the Owner possession of any Chattel Paper relating to a lease or hire arrangement or ensure any such Chattel Paper is marked in such a way that no other person could take possession of the Chattel Paper without acquiring actual or constructive knowledge of the Owner’s Security Interest; and
(f) ensure the other person returns the Plant to the Customer at the end of the lease or hire.
11.3 In addition to any other Security Interest arising under or contemplated in the Hire Agreement or by law, if the Customer leases or hires the Plant to another person, the Customer grants a Security Interest in any Chattel Paper relating to the lease or hire arrangement to secure payment and performance of the Customer’s obligations under any Credit Agreement and any Hire Agreement.
11.4 The Customer must perfect and continuously maintain perfection of any Security Interest that the Customer has over the Plant.
- 12. Equipment Breakdown
12.1 In the event that the Plant breaks down or becomes unsafe to use during the Hire Period the Customer must:
(a) immediately stop using the Plant and notify the Owner;
(b) take all steps necessary to prevent injury, damage or loss occurring to persons or property as a result of the condition of the Plant;
(c) take all steps necessary to prevent any further damage to the Plant,
(d) not repair or attempt to repair the Plant without the Owner’s written consent; and
(e) immediately return the Plant to the Owner (at the Customer’s cost) if required to do so by the Owner.
12.2 In the event that the Plant breaks down or becomes unsafe to use through no fault, negligence, recklessness or misuse by the Customer or a breach of the Customer’s obligations under any Hire Agreement, the Owner:
(a) will take all steps necessary to either (in the Owner’s absolute discretion) repair the Plant or provide suitable substitute Plant to the original delivery point as soon as reasonably practicable after being notified by the Customer;
(b) may adjust the Hire Charges for that portion of the Hire Period for which the Plant is broken down or unsafe; and
(c) not be liable for any expenditure, damages, loss (including consequential loss) or inconvenience incurred by the Customer arising from a breakdown of Plant, however so caused.
12.3 Subject to clause 16 but notwithstanding any other clause of the Hire Agreement, if the Plant breaks down, becomes unsafe to use, cannot be operated, does not perform in accordance with its advertised or designated function, is not fit for purpose, is not of acceptable quality or is lost, stolen or damaged, the Owner’s liability shall be limited to, at the Owner’s absolute discretion, either:
(a) the replacement of the Plant or the supply of equivalent Plant;
(b) the repair of the Plant;
(c) the payment of the cost of the cost of replacing the Plant or acquiring equivalent Plant; or
(d) the payment of the cost of having the Plant repaired.
- 13. Lost, Stolen or Damaged Equipment
13.1 The Customer is responsible for the Plant from the Delivery Date until the Plant is returned to the Owner at the Delivery Point. Subject to clause 12.2, if the Plant is lost, stolen, damaged, destroyed or confiscated in whole or in part during the Hire Period the Customer must:
(a) immediately notify the Owner and provide such details and written evidence (including a copy of any police or insurance report) as the Owner may request;
(b) at the Owner’s election and in the Owner’s sole discretion, either repair the Plant to the satisfaction of the Owner or replace the affected Plant with like plant approved by the Owner which has at least the same relative value, at the Customer’s cost, or pay the Owner on demand any costs incurred by the Owner in repairing or replacing the Plant;
(c) pay the Owner on demand any other costs, liabilities and expenses whatsoever incurred by the Owner as a result or consequence of the loss, theft, damage, destruction or confiscation of the Plant; and
(d) without limiting the Owner’s rights, where the loss, theft, damage, destruction or confiscation of the Plant was caused by the negligence or act or omission of the Customer or was a consequence of a breach of the Customer’s obligations under the Hire Agreement, the Customer must continue to pay the Hire Charges until the later of:
(i) the last date of the Hire Period as set out in the Hire Agreement; and
(ii) the date on which, if the Plant is to be repaired, the Plant is repaired and is capable of being returned to service or, if the Plant is to be replaced, the date on which such replacement has been received by the Owner.
- 14. Damage Waiver
14.1 Subject to the Customer having paid all instalments of the Damage Waiver Amount payable as at the date on which the relevant loss or damage to the Plant occurs in full, the loss or damage not being caused by or contributed to by any of the events set out in clause 14.3 and the Customer complying with the requirements set out in clause 14.2, the Owner agrees that the Customer’s liability to the Owner for loss or damage to the Plant caused by fire, storm, collision, accident, theft or burglary will be limited to the amount, being the greater of 25% of the cost of repairs or the new replacement cost of the Plant and SGD$5,000.00 for each item of Plant (as the case may be).
14.2 The Customer must promptly:
(a) inform the Owner in writing of any loss or damage, the cause of such loss or damage and confirm whether any of the exclusions set out in clause 14.3 apply;
(b) provide to the Owner copies of such documentation or supporting evidence as the Owner may require to prove the loss or damage and the circumstances under which such loss or damage had occurred, including but not limited to a copy of any police or security report or photographic evidence; and
(c) provide all reasonable assistance requested by the Owner (at the Customer’s cost) to confirm or verify the cause and extent of the loss or damage to the Plant.
14.3 Expressly excluded from the above Damage Waiver is loss or damage:
(a) caused or contributed to by misuse, abuse or overloading of the Plant or any components thereof;
(b) constituting wrongful conversion of the Plant or any components thereof;
(c) caused or contributed to by a breach of the conditions of the Hire Agreement or these Standard Conditions of Hire;
(d) caused or contributed to by a breach or non-compliance with any statutory laws or regulations;
(e) caused or contributed to by a lack of care and maintenance of the Plant;
(f) caused to tyres, tubes and similar items by blowout, bruises, cuts or other causes inherent in the use of the Plant;
(g) constituting glass breakage or graffiti;
(h) caused or contributed to by lack of lubrication or other normal servicing of the Plant;
(i) which occurred whilst the Plant was located, used, loaded, unloaded or transported on or over water, wharves, bridges or vessels of any kind;
(j) to motors or other electrical appliances or devices caused by overloading or artificial electrical current, including use of under-rated or excessive length of extension leads;
(k) caused or contributed to by exposure to any corrosive or caustic substance, such as cyanide, salt water or acid;
(l) caused by theft or attempted theft of the Plant, unless the Plant was reasonably locked and secured;
(m) to the Plant during transport, except where transported by the Owner;
(n) to items for which the Customer has not paid Damage Waiver Amount in full;
(o) to Plant ordinarily used or which was used off-shore, over water and down in underground mines or areas; or
(p) caused by the negligence of the Customer.
14.4 The Customer acknowledges and agrees, for the avoidance of doubt, that the Damage Waiver only relates to the Customer’s liability to the Owner in relation to the loss or damage to the Plant and does not limit liability in relation to other matters, including but not limited to loss, damage or injury to third parties or any liability for breach or any laws, regulations, licences or permits or environmental damage or contamination.
- 15. Insurance
15.1 All Plant (and any part of the Plant) will be at the Customer’s risk from the Delivery Date. The Owner will not be responsible for any loss or damage to the Plant occurring after such time and no such loss or damage will affect the obligation of the Customer to pay any amount otherwise payable in accordance with the Hire Agreement or these Standard Conditions of Hire.
15.2 Prior to delivery of Plant, the Customer must take out and maintain suitable insurance cover, with an insurer approved by the Owner, for the Plant to cover any insurable loss howsoever caused with such insurance to be on terms and for an amount satisfactory to the Owner. Such insurance shall name the Owner as insured and include a waiver of subrogation against any of the persons comprising the insured.
15.3 Notwithstanding clause 15.2, the Customer shall not be required to insure the Plant if clause 14 applies and the Customer pays all instalments of the Damage Waiver Amount in full on the relevant Payment Dates.
15.4 The Customer must take out and maintain suitable public and products liability insurance with a limit of liability of at least AUD$20,000,000 with an insurer approved by the Owner. Such insurance shall name the Owner as principal covering the Owner’s liability to third parties in connection with the performance of the Hire Agreement and contain provisions whereby all rights of subrogation or action against the Owner are waived.
15.5 The Customer must take out and maintain workers compensation and occupational/industrial disease and any other insurance required by law relating to the Customer’s workers compensation liability to any person, including common law cover for not less than AUD$50,000,000. Such insurance shall extend to indemnify the Owner as principal in relation to both Act benefits and at common law
15.6 The Customer must provide written evidence of compliance with the insurance requirements set out in this clause 15 to the Owner within 7 days of receiving any request from the Owner to do so.
15.7 Unless the Owner otherwise agrees in writing, the Owner is not required to insure the Plant after the Delivery Date. If the Owner does agree to insure the Plant after the Delivery Date, such insurance will be at the Customer’s expense.
- 16. Warranties
16.1 The Owner’s Plant comes with guarantees that cannot be excluded under Consumer Law.
16.2 Subject to any warranties which are implied by law and cannot otherwise be excluded and except as expressly provided to the contrary in the Hire Agreement, all terms, conditions, warranties, undertakings, inducements or representations whether express or implied and all liabilities, statutory or otherwise, relating to the manufacture, hire, use or supply of the Plant or the Owner’s obligations under the Hire Agreement are expressly excluded and the Owner will not be liable for any claim for direct, indirect or consequential loss or damage arising out of or contributed to by the manufacture, hire, use or supply of the Plant.
16.3 Where any law or regulation implies a term, condition or warranty in this Hire Agreement and that law or regulation prohibits provisions in a contract excluding or modifying the application, exercise or liability under that term, condition or warranty, such term, condition or warranty will be deemed to be included in the Hire Agreement provided that the liability of the Owner for the breach of the term, condition or warranty is limited to (at the Owner’s election) the repair or replacement of the Plant or the supply of substitute Plant (or the cost of doing so) and in no event will any liability for damages be greater than the amount of the Hire Charges.
16.4 The Owner makes no representation or warranty in relation to the supply of spare parts or the availability of facilities for the repair of Plant (or any part of the Plant).
16.5 The Customer acknowledges and agrees that it has made its own enquires as to the suitability of the Plant (or any part of the Plant) for the Customer’s intended use and the Customer does not rely on any statement, representation or information provided by or on behalf of the Owner in relation to the Plant (including the use of the Plant) other than the statements, representations and information set out in writing in the Hire Agreement.
16.6 Subject to clause 16.3, the Owner will not, in any circumstances, be under any liability to the Customer for consequential loss or damage (including but not limited to loss of actual or anticipated profits or revenue, economic loss or any kind of loss suffered as a result of any claim or claims by third parties) in contract, tort (including negligence) under statute or otherwise from or in relation to the Plant or the Hire Agreement.
- 17. Release and Indemnity
17.1 The Customer releases and discharges the Owner from all claims and demands on the Owner and any loss or damage whatsoever and whenever caused to the Customer or any other person of any nature or kind and indemnifies and holds the Owner harmless from and against all liabilities, losses, damages, costs or expenses incurred or suffered by the Owner and from and against all actions, proceedings, claims or demands made against the Owner, arising in either case as a result of, or which has been contributed to by:
(a) the Customer’s hire and use of the Plant or breach of the Hire Agreement or any Credit Agreement;
(b) the Customer’s failure to comply with any laws, rules, standards, or regulations applicable to the Plant or use of the Plant;
(c) the Customer’s failure to keep the Plant safe and secure;
(d) any use of the Plant contrary to any instructions, specifications or warnings given by the Owner or the manufacturer of the Plant or otherwise contrary to Good Operating Practice;
(e) any other negligence or any breach of duty by the Customer;
(f) any compliance or adherence by the Owner with any instruction by the Customer; or
(g) any reliance by the Owner on any representation by the Customer.
17.2 Each indemnity is a continuing obligation, separate and independent from the other obligations of the Customer and survives termination, completion and expiration of the Hire Agreement and Credit Agreement. The Customer must pay on demand any amount it must pay under an indemnity and it is not necessary for a party to incur an expense or make any payment before enforcing a right of indemnity.
- 18. Intellectual Property and use of drawings and specifications
18.1 Title, right and interest in the Intellectual Property is and will remain the property of the Owner.
18.2 In dealing with the Intellectual Property, the Customer must not:
(a) disclose or furnish the Intellectual Property to any other person and all reasonable precautions must be taken to protect such confidentiality;
(b) copy, distribute, transmit, display, reproduce, publish, licence, modify, rewrite, allow or permit derivative works to be created from, transfer or sell the Intellectual Property; or
(c) allow copies of the Intellectual Property to be printed, published, made, reproduced or otherwise communicated without acknowledging the Owner’s right, title and interest in the Intellectual Property.
18.3 The Customer must ensure that the Intellectual Property is not subjected to any treatment which is prejudicial to the reputation of, or which would infringe the moral rights of, the author.
18.4 Any drawings, specifications, descriptions and other documents attached to any quotation are for tendering purposes only and (save for these Standard Conditions of Hire) may not be included in any Order for Hire and will not form the basis of, nor be part of, any Hire Agreement.
18.5 The details contained in any quotation, any attachment to a quotation or any drawings, specifications, descriptions and other documents otherwise provided by the Owner to the Customer will be submitted in good faith as being correct but any errors, omissions or defects therein will not be grounds for cancellation of the Hire Agreement nor entitle the Customer to make any claim against the Owner.
18.6 The Owner will provide, if it has agreed in writing to do so, copies of available drawings, specifications and manuals for the Plant to the Customer upon delivery of the Plant (or such other time the Owner may agree to in writing) and such drawings, specifications and manuals must be returned to the Owner together with the Plant. Any additional manuals, drawings or documentation requested by the Customer will be provided by the Owner at the Owner’s absolute discretion and at the Customer’s expense.
- 19. End of the Hire Period and return of the Plant
19.1 The Customer must, on or before the last day of the Hire Period (or such other time as agreed between the Customer and the Owner):
(a) return the Plant to the Owner, at the Customer’s expense, in good working order, a clean condition and in good repair (fair wear and tear excepted) at a place nominated by the Owner or, if no place is nominated, at the Delivery Point;
(b) give the Owner any certificates of registration, insurance certificates, warranties, log books, instructions, service manuals and other documents relating to the Plant; and
(c) pay any amount owing to the Owner.
19.2 Without limiting any other clause in these Standard Conditions of Hire, if the Owner terminates any Hire Agreement, the Hire Period shall immediately expire and the Customer must return the Plant in accordance with clause 19.1.
19.3 If the Plant is not returned to the Owner on the date required pursuant to this clause 19, the Owner may take all steps necessary (including legal action) to recover the Plant, including entering the Customer’s premises to do so.
19.4 If the Owner does not receive the Plant in the state required pursuant to clause 19.1, the Owner may, without limiting any of its other rights following a breach of the Hire Agreement, take such steps as the Owner considers necessary, at the Customer’s cost, to ensure that the Plant is in good working order, a clean condition and in good repair (fair wear and tear excepted).
19.5 Without limiting the Owner’s rights following a breach of clause 19.1, if the Customer retains the Plant with the consent of the Owner after the end of the Hire Period and the Customer has not entered into a new rental agreement with the Owner with respect to the Plant:
(a) the Customer must continue paying Hire Charges as if the last date of the Hire Period had not occurred and the Hire Agreement had not ended;
(b) the terms of the Hire Agreement, including these Standard Conditions of Hire, continue to apply; and
(c) the Owner can give notice to the Customer at any time after the end of the Hire Period to return the Plant. If the Owner gives the Customer notice under this clause, the Customer must return the Plant in accordance with clause 19.1 as if the date specified in the notice was the last date of the Hire Period.
- 20. Termination
20.1 The Owner may terminate the Hire Agreement or Credit Agreement immediately without notice to the Customer, if:
(a) the Customer breaches any term of the Hire Agreement or Credit Agreement;
(b) the Customer or any Guarantor becomes bankrupt or insolvent, executes a personal insolvency agreement, enters into liquidation, administration, receivership or ceases to carry on business; or
(c) the Customer’s conduct indicates that it no longer intends to be bound by the Hire Agreement.
20.2 The Owner may terminate the Hire Agreement for any other reason by 24 hours’ notice.
20.3 The rights of termination in this clause 20 are in addition to any other rights of the Owner under the Hire Agreement or Credit Agreement and does not exclude any right or remedy under law or equity or the survival of other terms under the Hire Agreement or Credit Agreement.
- 21. Grant of security interest
21.1 In addition to any other Security Interest arising under any Credit Agreement or Hire Agreement or any transaction contemplated by them in favour of the Owner as the secured party, the Customer grants the Owner a security interest over all of its PPS Property and a fixed charge over all of its Non-PPS Property as security for the Customer’s indebtedness to the Owner and the Customer’s obligations under any Credit Agreement, Hire Agreement and any transaction contemplated by them.
21.2 The Customer acknowledges and agrees that the charge created under clause 21.1 is a charge over any interest of the Customer in any real property and the Customer consents to a caveat or other security being lodged against the title to any real property or any interest in real property held by the Customer from time to time.
- 22. Confidentiality
22.1 The Owner and the Customer acknowledge and agree that, subject to clause 11.2, neither party may disclose any information or documents supplied by another party that is not publically available, including information of a kind referred to in section 275(1) of the PPS Act.
22.2 A party may disclose information or documents as follows:
(a) the Owner may disclose information in accordance with clause 24, in assigning or enforcing or seeking to assign or enforce any Hire Agreement or Credit Agreement, in a proceeding arising out of, or in connection with, any Hire Agreement or Credit Agreement, to any person with whom the Owner may enter into a transaction or to the extent that disclosure is regarded by the Owner as necessary to protect its interests;
(b) if required under any law;
(c) to legal advisers or other professional advisers; or
(d) with the prior consent of the other party, which must not be unreasonably withheld.
- 23. Privacy
23.1 The Owner may collect personal information about the Customer and any Guarantor. The Owner may use the personal information to provide services to the Customer or the Guarantor, to fulfil administrative functions associated with these services (for example assessment of credit worthiness), to enter into contracts with the Customer, Guarantor or third parties and for marketing and client relationship purposes. The Owner may also disclose the information to the Owner’s service providers and contractors from time to time to help provide and market the Owner’s services to the Customer and the Guarantor, to any manufacturer or supplier of the Plant, to debt collection agencies and credit reporting agencies and as otherwise authorised by law. The Customer and any Guarantor consents to the collection and use of its personal information in accordance with this clause.
23.2 Any personal information provided to the Owner may be transferred to, and stored at, a destination outside Australia. Personal information may also be processed by staff or by other third parties operating outside Australia who work for the Owner or for one of its suppliers, manufacturer’s agents, partners or related companies. By submitting personal information to the Owner, the Customer and any Guarantor expressly agree and consent to the disclosure, transfer, storing or processing of the Customer’s and any Guarantor’s personal information outside of Australia.
23.3 To access personal information the Owner holds about the Customer or any Guarantor, the relevant party must contact the Owner in writing, addressed and delivered to the Owner’s offices (located at 8 Tuas View Square, 637574 Singapore).
- 24. Variation
24.1 The Owner may at any time amend these Standard Conditions of Hire by giving the Customer notice in writing of the amendments at least fourteen (14) days prior to amendments taking effect.
24.2 If the Customer does not wish to hire the Plant on the terms and conditions set out in these Standard Conditions of Hire, as amended from time to time, the Customer must notify the Owner in writing and return the Plant to the Owner (to the address stipulated by the Owner) within 48 hours of the Plant being delivered or the date of the amendment of the Standard Conditions of Hire, otherwise the Customer will be deemed to have accepted to hire the Plant on the terms and conditions set out in these Standard Conditions of Hire.
- 25. Miscellaneous
25.1 If any part of any Hire Agreement or Credit 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.
25.2 The Hire Agreement is governed by the laws of Singapore and each party submits to the exclusive jurisdiction of the courts of Singapore.
25.3 Any document to be given by the Owner to the Customer may be served or rendered by leaving it at or posting it to the address of the Customer as stated in the Credit Agreement, Hire Agreement or as last notified by the Customer in writing to the Owner and will be deemed to have been served or rendered at the time of leaving or, if posted, on the business day following the day of postage. Any notice may be signed by an officer, manager or solicitor of the Owner.
25.4 No waiver of any term of any Hire Agreement or Credit Agreement will be valid unless such waiver is in writing and signed by the Owner. If the Owner does not enforce any right or delays in enforcing any right under any Hire Agreement or Credit Agreement, this must not be construed as a waiver of such right.
25.5 The Customer must not, without the Owner’s prior written consent, transfer, assign, encumber or otherwise dispose of any of the Customer’s rights or obligations under any Hire Agreement or Credit Agreement. The Owner may assign or novate any rights or obligations under any Hire Agreement or Credit Agreement without notice to the Customer. For the purposes of this clause, if the Customer is a corporation, the Customer will be deemed to have assigned its rights and obligations if there is a change of effective control of the corporation or its ultimate holding company.
25.6 Any credit account or accommodation granted by the Owner to the Customer may be reviewed at any time without notice. Credit may be withdrawn if the Customer fails to make payments or use the Plant in accordance with the terms of the Hire Agreement or any Credit Agreement and a statement may be issued at that time requiring payment within 7 days of any amount due and owing.
25.7 If the Customer is a trustee of any trust, the Customer enters into any Credit Agreement or Hire Agreement in its personal capacity and in its capacity as trustee, and is liable in both of those capacities. The Customer represents and warrants to the Owner that any Credit Agreement or Hire Agreement is for the benefit of the trust, that it is the sole trustee of the trust, it is not in breach of the trust, it has authority to enter into any Credit Agreement or Hire Agreement and it has the right to be fully indemnified out of the trust assets for obligations incurred under any Credit Agreement or Hire Agreement. The Customer agrees to ensure that nothing happens that would prevent it from repeating the representations and warranties set out in this clause.
25.8 The person signing the Hire Agreement or Credit Agreement for and on behalf of the Customer hereby covenants with the Owner that he or she has the authority of the Customer to enter into the Credit Agreement or Hire Agreement on the Customer’s behalf and is empowered by the Customer to bind the Customer to the Hire Agreement or Credit Agreement and hereby indemnifies the Owner against all losses, costs and claims incurred by the Owner arising out of the person so signing not in fact having such power and/or authority.
25.9 Time is to be of the essence of all obligations of the Customer in the Hire Agreement or Credit Agreement.