TERMS & CONDITIONS

1) HIRE AGREEMENT  

These Terms and Conditions for Hire, together with: 

(a)  each Hire Schedule; and 

(b)  any Special Conditions specific to the type of Equipment hired, set out the terms of the hire agreement (the Hire Agreement) between the Hirer and ESS. 

Each Hire Schedule forms a separate Hire Agreement between the Hirer and ESS. Any terms contained in any document supplied by Hirer, including any terms on any supply order or hire agreement will not form part of the Hire Agreement. 

2) DEFINITIONS 

The following meanings apply to the Hire Agreement: ESS means ESS Engineering Services & Supplies Pty Ltd ABN 34 001 931 746 and its successors and assigns. 

Equipment means any equipment provided by ESS to the Hirer under the Hire Agreement, including any associated or attached tools, accessories and parts available for hire. 

Expected Off Hire Date means the date that the Hirer expects the Hire Period to end. This date is set out in the Hire Schedule. 

Hirer refers to the party listed in the Hire Schedule and includes any of the Hirer’s employees, agents and contractors. 

Hire Charge or Hire Charges means the rates and charges payable by the Hirer for the hire of the Equipment. 

Hire Period means the period described in clause 4. 

Hire Schedule means the document substantially in the form attached to this Agreement agreed by the Hirer and ESS which includes details of the Equipment hired, the Hire Charge, any other applicable charges, the Expected Off Hire Date and the address for delivery of the Equipment. 

Off Hire Date has the meaning set out in clause 11.2. 

PPSA means the Personal Property Securities Act 2009 (Cth) (as amended) and any other legislation and regulations in respect of it and the following words have the respective meanings given to them in the PPSA: collateral, financing change statement, financing statement, interested person, purchase money security interest, register, registration, security agreement, security interest and verification statement. 

Regulatory Authority means any public authority or government agency responsible for regulating the performance of electrical works. 

3) OUR HIRE COMMITMENT TO YOU 

ESS agrees to hire the Equipment to the Hirer and will: 

(a) provide the Equipment to the Hirer in good working order; and

(b) allow the Hirer to exclusively use the Equipment during the Hire Period. 

4) THE HIRE PERIOD 

4.1 The Hire Period commences on the earlier of the following: 

1. when the Hirer takes possession of the Equipment; or 
2. the time ESS delivers the Equipment to the address in the Hire Schedule or such other address as agreed in writing between the Hirer and ESS. 

4.2 The Hire Period will end on the later of the: 

1. Hire End Date set out in the Hire Schedule; and 
2. The date the Equipment is returned to the control or possession of ESS. 

4.3 The Hire Period includes weekends and public holidays. 

5) HOW HIRE CHARGES ARE CALCULATED 

5.1 The Hirer will pay ESS for the hire of the Equipment at the Hire Charge rate set out in the Hire Schedule. 

5.2 The Hire Schedule will specify the type of rate which will apply and the method of calculation including the calculation of any additional Hire Charges based on hours of use of the Equipment. 

5.3 Hire Charges will commence from the beginning of the Hire Period and continue until the date the Hirer notifies ESS that the Equipment will be available for collection (the Off Hire Date). The Equipment must be available for collection by no later than the time of day at which the hire commenced (e.g. if hire commenced at 10am, then the Equipment must be ready for collection by no later than 10am on the Off Hire Date). 



6) OTHER CHARGES 

In addition to the Hire Charges, the Hirer agrees to pay: 

1. for any consumables, fuel or trade materials supplied by ESS to the Hirer; 
2. if the Hirer requires delivery, collection or installation the Equipment, the cost of delivery, collection or installation, as detailed in the Hire Schedule; 
3. if the Hirer does not return the Equipment in clean and good working condition, charges for the cleaning and repair of the Equipment; 
4. a charge for pumping out waste tanks or refilling water or fuel tanks; 
5. any stamp duty or GST arising out of this Hire Agreement; and 
6. all charges as detailed in the Hire Schedule. 

7) PAYMENT 

7.1 The Hirer will pay all Hire Charges and other fees, charges and costs that become due and payable under this Hire Agreement within 30 days of the date of invoice. 

8) HIRER OBLIGATIONS  

8.1 The Hirer agrees that before taking delivery of the Equipment, it has satisfied itself as to the suitability and condition of the Equipment. 

8.2 The Hirer agrees to: 

1. operate the Equipment in accordance with all laws and in accordance with the manufacturer’s instructions; 
2. ensure persons operating or erecting the Equipment are suitably trained on its safe and proper use, qualified to use the Equipment and where necessary hold a current licence to operate and use the Equipment; 
3. ensure that no persons carry illegal, prohibited or dangerous substances in or on the Equipment; and 
4. display all safety signs and instructions (as required by law), and ensure that all instructions and signs are observed by operators of the Equipment. 

8.3 The Hirer must: 

1. clean, fuel, lubricate and keep the Equipment in good condition and in accordance with the manufacturer’s instructions advised by ESS at the Hirer’s own cost; 
2. not in any way alter, modify, tamper with, damage or repair the Equipment without ESS’s prior written consent; 
3. not deface, remove, vary or erase any identifying marks, plate, number, notices or safety information, on the Equipment; and 
4. not remove fuel or oil tank caps, bund plugs or seals from the Equipment and ensure that they are in place when the Hirer returns the Equipment; 
5. arrange for the emptying of any waste tanks and water carts. 

8.4 At all times during the Hire Period, the Hirer agrees to store the Equipment safely and securely. 

8.5 Whenever moving the Equipment, the Hirer must ensure the safe loading, securing and transporting of all Equipment in accordance with all laws and manufacturer’s guidelines. 

9) OWNERSHIP OF THE EQUIPMENT 

9.1 The Hirer acknowledges that ESS owns the Equipment and in all circumstances retains title to the Equipment. The Hirer’s rights to use the Equipment are as a bailee only. 

9.2 In no circumstances will the Equipment be deemed to be a fixture. 

10) PPSA 

10.1 ESS may register any actual or impending security interest (in any manner it consider appropriate) in relation to any security interest contemplated or constituted by this Hire Agreement in the Equipment and the proceeds arising in respect of any dealing in the Equipment. 

10.2 The Hirer undertakes to: 

1. do anything that is required by ESS (i) so that the ESS acquires and maintains one or more perfected security interests under the PPSA in respect of the Equipment and its proceeds, and (ii) to register a financing statement or financing change statement; 
2. not register a financing change statement in respect of a security interest contemplated or constituted by this Hire Agreement without tESS’s prior written consent; and 
3. not create or purport to create any security interest in the Equipment, nor register, or permit to be registered, a financing statement or a financing change statement in relation to the Equipment in favour of a third party without ESS’s prior written consent. 

10.3 The Hirer: 

1. Waives any right under section 157 of the PPSA to receive a copy of the verification statement relating to a security interest created under the Hire Agreement; 
2. agrees that to the extent permitted by the PPSA, the following provisions of the PPSA will not apply and are contracted out of : section 95 (to the extent that it requires the secured party to give notices to the grantor); section 96; section 118 (to the extent that it allows a secured party to give notices to the grantor); section 121(4); section 125; section 130; section 132(3)(d); section 132(4); section 135; section 142 and section 143; and 
3. agrees that the following provisions of the PPSA will not apply and the Hirer will have no rights under them: section 127; section 129(2) and (3); section 130(1); section 132; section 134(2); section 135; section 136(3), (4) and (5) and section 137. 

10.4 Unless otherwise agreed and to the extent permitted by the PPSA, the parties agree not to disclose information of the kind referred to in section 275(1) of the PPS Act to an interested person, or any other person requested by an interested person. 

10.5 For the purposes of section 20(2) of the PPSA, the collateral is Equipment including any Equipment which is described in any Hire Schedule provided by ESS to the Hirer from time to time. This Hire Agreement is a security agreement for the purposes of the PPSA. 

11) RESPONSIBILITY FOR THE EQUIPMENT 

The Hirer is responsible for any loss, theft or damage to the Equipment during the Hire Period except where any such loss, theft or damage was caused by ESS’s negligent act or omission. 

12) RETURN OF EQUIPMENT 

12.1 The Hirer must return the Equipment in the same clean condition and good working order it was in when the Hirer received it, ordinary fair wear and tear excluded. If the Hirer does not properly clean the Equipment, ESS may charge a cleaning cost in accordance with clause 6(c). 

12.2 Except in the circumstances set out in clause 12 below or agreed otherwise, it is the Hirer’s responsibility to return the Equipment to the location the Hirer hired it from during normal business hours. 

13) WHAT TO DO IF EQUIPMENT BREAKS DOWN 

13.1 In the event that the Equipment breaks down or becomes unsafe to use during the Hire Period the Hirer will: 

1. immediately stop using the Equipment and notify ESS; 
2. take all reasonable steps necessary to prevent injury occurring to persons or property as a result of the condition of the Equipment; 
3. take all reasonable steps necessary to prevent any further damage to the Equipment itself; and 
4. not repair or attempt to repair the Equipment without ESS’s written consent. 

13.2 Upon receiving notice under clause 12.1, ESS will: 

1. take all reasonable steps to repair the Equipment or provide suitable substitute Equipment as soon as reasonably possible after being notified by the Hirer; and 
2. not impose a Hire Charge for that portion of the Hire Period for which the Equipment was broken down or unsafe, nor the costs associated with any repair or replacement of the Equipment. 
3. 
   

14) WHAT TO DO IF EQUIPMENT IS LOST, STOLEN OR DAMAGED 

14.1 If the Equipment has broken down or become unsafe to use as a result of the negligent acts or omissions of the Hirer or its employees or other contractors or if the Equipment is lost, stolen or damaged beyond fair wear and tear during the Hire Period, the Hirer will be liable for any costs incurred to recover and repair or replace the Equipment. 

15) INDEMNITIES AND EXCLUSION OF LIABILITIES 

15.1 ESS will not be liable to the Hirer for any consequential, indirect or special loss or damage, loss of actual or anticipated profits or revenue, loss of business, business interruption, or wasted costs amounts that the Hirer suffers under or relating to this Hire Agreement or its subject matter, whether in contract, tort (including without limitation negligence), in equity, under statute, under an indemnity, whether or not such loss or damage was foreseeable and even if advised of the possibility of the loss or damage. 

15.2 The Hirer is liable for and indemnifies ESS against all liability, claims, damage, loss, costs and expenses (including, without limitation, legal fees, costs and disbursements on a full indemnity basis, whether incurred or awarded against ESS and any environmental loss, cost, damage or expense) in respect of: 

1. personal injury; 
2. damage to property; or 
3. a claim by a third party, 

in respect of the hire or use of the Equipment or the Hirer’s breach of the Hire Agreement. Liability under this indemnity is reduced to the extent that the ESS’s negligence causes the liability, claims, damage, loss, costs or expenses. 

15.3 Each indemnity in this Hire Agreement is a continuing obligation, separate and independent from the other obligations of the parties and survives termination, completion and expiration of this Hire Agreement. It is not necessary for a party to incur expense or make any payment before enforcing a right of indemnity conferred by this Hire Agreement. 

16) TERMINATION OF HIRE AGREEMENT  

16.1 Either party may terminate this Hire Agreement and any Hire Period immediately by giving notice to the other party, if: 

1. that other party breaches any term of the Hire Agreement and fails to remedy the breach within 7 days of written notification of the breach; or 
2. the other party becomes bankrupt or insolvent, executes a personal insolvency agreement, enters into liquidation, administration, receivership or ceases to carry on business. 

16.2 The Hirer may terminate the Hire Agreement and any Hire Period for any other reason on 24 hours’ notice. 

16.3 These rights of termination are in addition to any other rights either party has under the Hire Agreement and does not exclude any right or remedy under law or equity. 

17) EQUIPMENT THAT IS COLLECTED OR DELIVERED IN A DAMAGED AND / OR DEFECTIVE CONDITION 

If the Hirer collects or receives the Equipment and finds that it is broken, damaged and/or defective, the Hirer must notify ESS as soon as reasonably practicable.   

18) FORCE MAJEURE  

18.1 Neither party will be responsible for any delays in delivery or installation due to causes beyond their control including but not limited to acts of God, war, terrorism, mobilisation, civil commotion, riots, embargoes, orders or regulations of governments of any relevant jurisdiction, fires, floods, strikes, lockouts or other labour difficulties, shortages of or inability to obtain shipping space or land transportation. 

19) SEVERABILITY 

If any part of this Hire Agreement becomes void or unenforceable for any reason then that part will be severed with the intent that all remaining parts will continue to be in full force and effect and be unaffected by the severance of any other parts.

 

20) GOVERNING LAW 

The Hire Agreement is governed by the laws of Queensland and each party submits to the non-exclusive jurisdiction of the courts of that State in respect of any proceedings arising in connection with the Hire Agreement.  Each party waives any objection to the venue of any legal process in these courts on the basis that the process has been brought in an inconvenient forum. 

21) ENTIRE AGREEMENT 

The Hire Agreement comprises the entire agreement between the parties. No additional terms and conditions (including any terms contained in any purchase order supplied by the Hirer) apply to the hire of the Equipment unless agreed to in writing and signed by a director of ESS.. 

22) VARIATION 

The Parties may from time to time agree to vary this agreement in writing only. 

23) NO WAIVER OF RIGHTS 

Subject to clause 18, no delay or omission by a party to exercise any right, power or remedy available to that party as a result of a continuing breach or default under the Hire Agreement will impair any such right, power or remedy, nor will it be construed to be a waiver of that party’s rights to take action or make a claim in respect of a continuing breach or default. 

24) SIGNING THIS HIRE AGREEMENT 

The person signing any document which forms part of the Hire Agreement for and on behalf of a party hereby warrants that he or she has the authority to enter into the Hire Agreement on behalf of the party and is empowered to bind the party to the Hire Agreement. 

25) ASSIGNMENT 

Neither Party may assign this Hire Agreement to any third party without the consent of the other Party.