Delivery of Goods
- The Hirer must at its own cost obtain delivery of the Goods from the Owner. Collection of the Goods from the Owner by the Hirer shall constitute acceptance by the Hirer of the Goods under this Agreement.
- The hiring of the Goods under this Agreement shall be for the Hire Term which shall commence on the date the Goods are collected by the Hirer
Purchase of Goods
- On the day that the Hire Term expires the Hirer must purchase the Goods from the Owner by paying to the Owner the Purchase Price plus all outstanding Rental, interest and costs.
- The Rental shall be payable by the Hirer to the Owner during the Hire Term at the time specified in the definition of the Rental.
Title & Risk
- Title in the Goods remains with the Owner during the Hire Term and does not pass to the Hirer until the Hirer pays the Purchase Price and all outstanding Rental, interest and costs under clause 3.
- At the commencement of the Hire Term the Hirer shall assume all risks and liabilities for and in respect of the Goods and for injuries to or death of persons and damage to property (including the Goods) howsoever arising from the possession, use, maintenance, repair or storage of the Goods.
Operation, Maintenance & Storage of Goods
- The Hirer at its own expense shall operate and maintain the Goods with due care and diligence and shall keep the Goods in proper working order and condition and in good and substantial repair in accordance with the manufacturer's instructions and recommendations and shall employ only properly trained and competent persons to operate, maintain and repair the Goods.
- The Hirer must not make any addition, replacement or alteration to the Goods which may lead to a reduction of the value of the Goods. If any part needs replacing it must be replaced with a part which is of a quality not less than the quality of the part being replaced. Any replacement parts or additions to the Goods shall be deemed to be part of the Goods and become the property of the Owner and be subject to all terms and conditions of this Agreement.
- The Hirer undertakes that the Goods will be and remain at all times under the Hirer’s control and that the Goods will be installed or housed at the address specified in this Agreement as the Hirer's address, and the Hirer undertakes that the Goods will not (unless the goods are mobile) be removed from that address.
- The Hirer must insure the Goods and keep them insured in the names of both the Owner and the Hirer for their full insurable value against such risks as the Owner may nominate or, in the absence of such nomination, against loss or damage by fire, theft, accident and such other risks as are insured against by prudent persons engaged in a similar business to that of the Hirer and such policy must stipulate that any successful insurance claims are to be paid by the insurer directly to the Owner.
- If the Goods are lost, stolen, destroyed or damaged to an extent which in the opinion of the insurer with whom the Goods are insured renders repair impractical or uneconomic, and the Owner and Hirer fail to agree on a replacement for the Goods, this Agreement shall be deemed terminated and the Hirer must pay to the Owner within 7 days an amount equal to the rent payable up to the end of the Hire Term.
- The Hirer must maintain public risk and product defect liability insurance in relation to the Goods in the joint names of the Owner and Hirer for any single event for an amount of $20 million or such other amount specified by the Owner from time to time.
- The Hirer must produce a certificate of currency of the insurance required to be taken out by the Hirer under this Agreement upon demand by the Owner.
- If the Hirer fails to pay any amount it owes to the Owner by the due date then, in addition to any other rights the Owner may have, it may charge interest calculated daily on the outstanding amount at the rate 2% higher than the rate from time to time fixed by the Penalty Interest Rates Act 1983 (Vic).
Hirer Must not Encumber Goods
- The Hirer must not, assign, mortgage, pledge, sell, charge, encumber, sublet, part with possession of, grant any lien, licence or other encumbrance over, or otherwise dispose of or deal with, or permit or suffer to exist any lien or other encumbrance over, the Goods or any part of them or any of the rights of the Hirer to the Goods or any part thereof, or any of the rights of the Hirer under the Agreement, and shall keep the Goods free from any distress, execution or other legal process
- The Hirer consents to the Owner registering its security interest on the Personal Property Securities Register in the Goods and in all present and after acquired personal property of the Hirer to secure payment of the amount the Hirer owes to the Owner from time to time and the Hirer must do all things (including signing any document) and provide all information necessary to enable the Owner to perfect and maintain the perfection of any and each security interest granted to the Owner by the Hirer.
- If the Hirer re-sells or deals with the Goods, the Hirer assigns absolutely and unconditionally in favour of the Owner, the Hirer’s entitlement to all the proceeds of the re-sale or dealing and will hold such part of the proceeds of the re-sale or dealing on trust for and as the fiduciary agent of the Owner immediately when they are received or receivable.
- The Hirer waives its rights to receive notices of:
- the removal of an accession under section 95 of the Personal Property Securities Act 2009 (“Act”);
- a proposal to dispose of collateral under section 130 of the Act;
- a statement of account under sections 132(3)(d) and 132(4) of the Act;
- any other occurrence in respect of which the parties agree to waive notice under the Act at any time.
- The Hirer also waive its right:
- to redeem collateral under section 142 of the Act;
- to reinstate this agreement under section 143 of the Act
- The Hirer waives its rights to receive notice from the Owner of a registration event under section 157(1) of the Act.
- The Hirer indemnifies the Owner against the loss of or damage to the Goods howsoever arising and indemnifies the Owner with respect to all losses, damages, claims, penalties, liabilities and expenses (including legal costs) howsoever arising incurred as a result of or in connection with the use of the Goods.
Limitation of Liability
- To the extent permitted by law, the Owner:
- excludes all statutory or implied conditions and warranties and any other liability it may have to the
Hirer (including liability for indirect or consequential loss) that may arise under statute or at law
including without limitation for breach of contract, in tort (including negligence) or under any other
cause of action; and
- limits its liability under any condition or warranty which cannot be legally excluded in relation to the
supply of Goods to (at its election) replacing the Goods or supplying equivalent Goods again, the
repair of the Goods, the payment of the cost of replacing the Goods or of acquiring equivalent Goods
again, or the payment of the costs of having Goods repaired.
- The Hirer acknowledges that prior to taking delivery of the Goods the Hirer has satisfied itself as to the condition
and suitability of the Goods and their fitness for the Hirer’s purposes.
Default & Termination
- Each of the following is an event of default:
- any rent instalment or any other money payable under this Agreement is not paid on the due date;
- the Hirer breaches any of its other obligations under this Agreement and fails to remedy that breach
within 7 days of being given a notice by the Owner requiring that breach to be remedied;
- the Owner ascertains that any warranty, representation or statement made by the Hirer under or in
connection with this Agreement has been false or misleading in any material respect;
- any insurance policy in respect of the Goods is cancelled or is not renewed;
- the Hirer commits any act of bankruptcy or, being a body corporate, a resolution is passed for its
winding up or a meeting is convened for such purpose or an order is made by any court for its winding
up or dissolution or an official manager or provisional liquidator is appointed in respect of it or a
receiver or manager or receiver and manager is appointed in respect of the whole or any part of its
assets or any inspector is appointed to investigate the affairs of the Hirer;
- the Hirer enters or proposes to enter into any arrangement, reconstruction or composition with any
of its creditors;
- the Hirer being a body corporate ceases or threatens to cease to carry on its business or is unable
to pay its debts as they fall due or suspends payment generally;
- the Hirer, being an individual, is declared mentally ill or is convicted of a criminal offence or dies;
- there is a material adverse change in the business or financial condition of the Hirer which could
adversely affect the ability of the Hirer to meet its obligations under this Agreement.
- The occurrence of an event of default is a repudiation by the Hirer of this Agreement
- At any time upon or after the occurrence of an event of default the Owner may terminate this agreement by:
and in either case the Hirer shall forthwith on demand deliver the Goods together with any tools and accessories supplied with the Goods or forming part of the Goods in good order and repair with due allowance for normal wear and tear, at the Hirer’s expense, to the Owner and in accordance with the directions given by the Owner, and in default the Owner may enter any premises occupied or controlled or believed by the Owner to be occupied or controlled by the Hirer and repossess the Goods, and for such purpose break open any gate or lock and dismantle the Goods from any part of the premises to which they may be affixed.
- taking possession of the Goods with or without any notice to the Hirer; or
- notice in writing to the Hirer;
- Upon termination of this Agreement for any reason whatsoever, the Hirer shall immediately pay to the Owner, by way of liquidated damages an amount equal to the aggregate of:
- the unpaid balance of the rental instalments comprising the total rent that would have been payable during the Hire Term; and
- the costs and expenses of the Owner in repossessing and storing, insuring and registering the Goods and in entering upon and removing the Goods from land or premises whereon the Goods are situated and make good any injury or damage caused to the said land or premises;
- the costs and expenses of repairs reasonably necessary to bring the Goods to a saleable condition; and
- interest (if any) pursuant to clause 8 (to the extent, if any, not hereinbefore claimed from the Hirer).
- Where any terms used in this clause are not defined elsewhere in this Agreement, they shall have the meaning as set out in A New Tax System (Goods and Services Tax) Act 1999.
- Any amount required to be paid or consideration required to be provided under any provision of this Agreement is deemed not to include GST unless it expressly includes GST.
- If the whole or any part of any amount is the consideration for a taxable supply made under this Agreement for which the supplying party is liable to pay GST, the supplying party may charge the party liable to pay for the taxable supply under this Agreement, and that party must pay the supplying party, concurrently with the payment of that amount, an additional amount equal to the GST payable in respect of the taxable supply calculated on the basis that the value of the taxable supply is the amount payable for the taxable supply excluding any GST.
- A party may not recover the GST from the other party unless and until a valid tax invoice for the supply to which that GST relates is issued and delivered to that other party.
- The Owner may at its discretion assign this Agreement to any third party.
- A statement in writing signed on behalf of the Owner stating the amount or any amount due from the Hirer under this Agreement shall be conclusive evidence of the amount so due.
- Any notice served by either party in respect of this Agreement shall be deemed to have been served if left at or posted by prepaid mail to the recipient's address as specified in this Agreement. Any notice served by post shall be deemed to have been served on the day three days after the date of posting.
- This Agreement shall be governed by and construed in accordance with the laws of Victoria and in the case of any dispute under this Agreement the parties submit to the jurisdiction of the Courts in Victoria.
- If the Hirer comprises two or more parties, they shall be bound by this Agreement jointly and individually and every reference to the Hirer shall be taken to apply to all such parties and each of them.
- No time or indulgence or waiver of its rights under this Agreement granted or purporting to be granted by the Owner shall affect the Owner’s position or rights under this Agreement or in the Goods, or shall constitute a waiver or release of any breach committed by the Hirer.
- This Agreement shall not be amended except expressly and in writing signed by the parties.