Tomcat Wood Chippers Australia - Arborist & Arboricultural Supplier

HIRING A TOMCAT

Tomcat Chippers Hiring Terms & Conditions

Definitions
1. “Contract” means the terms and conditions contained herein, together with any Special Conditions, quotation, Purchase Order, appendix, annexure, invoice or other document or amendments expressed to be supplemental to this Contract.
2. “TC” means Tomcat Chippers, its successors and assigns or any person acting on behalf of and with the authority of TC.
3. “Customer” means the person/s, entities or any person acting on behalf of and with the authority of the Customer requesting TC to provide the Services as specified in any proposal, quotation, order, invoice or other documentation, and:
  1. if there is more than one Customer, is a reference to each Customer jointly and severally; and
  2. if the Customer is a partnership, it shall bind each partner jointly and severally; and
  3. if the Customer is a part of a trust, shall be bound in their capacity as a trustee; and
  4. includes the Customer’s executors, administrators, successors and permitted assigns.
4. “Equipment” means all Equipment (including any accessories, machinery, tools and associated items, manuals, log books and vehicles as accompanies such Equipment) supplied on hire by TC to the Customer (and where the context so permits shall include any incidental supply of Services). The Equipment shall be as described on the invoices, quotation, authority to hire, or any other work authorisation forms as provided by TC to the Customer.
5. “Minimum Hire Period” means the minimum Hire Period, as specified in this Contract, and calculated at the appropriate hourly rate plus travel unless otherwise specified by TC prior to commencement of the Hire Period.
6. “Hire Period” means the term of the hire of the Equipment as specified in the Purchase Order and which may include weekends and/or public holidays, and continues until the supply of the Services is completed or the Hire Contract is terminated in accordance with these terms and conditions or such further period as agreed by the parties in writing.
7. “Hire Docket” means the form issued by TC at the time an order is submitted to TC and includes job details, Equipment and other relevant details.
8. “Dry Hire” means that the Equipment is supplied by TC without an operator.
9. “Wet Hire” means that the Equipment is supplied by TC with an operator who shall at all times remain an employee or representative of TC.
10. “Site” means the location/s at which the Equipment is to be operated.
11. “Damage Waiver Amount” means that amount set out in the Hire Contract.
12. “Damage Waiver Excess” means an amount equal to fifteen percent (15%) of the cost to repair or replace the Equipment, capped at five hundred dollars ($500.00). whichever, is greater on all claims.
13. “PPSA” means the Personal Property Securities Act 2009 (Cth) as amended from time to time.
14. “PPSR” means the Personal Property Securities Register established under the PPSA.
15. “Trade Customers” are only those Customers who TC determines (in their discretion) are, at any point in time, entitled to trade credit terms. TC can, at any time, give to, or withdraw from, a Customer the status of Trade Customer.
16. “Confidential Information” means information of a confidential nature whether oral, written or in electronic form including, but not limited to, this Contract, either party’s intellectual property, operational information, know-how, trade secrets, financial and commercial affairs, contracts, Customer information (including but not limited to, “Personal Information” such as: name, address, D.O.B, occupation, driver’s license details, electronic contact (email, Facebook or Twitter details), medical insurance details or next of kin and other contact information (where applicable), previous credit applications, credit history) and pricing details.
17. “Charges” means the cost of the hire (plus any GST where applicable) of the Equipment as agreed between TC and the Customer subject to clause 5 of this contract.
18. “GST” means Goods and Services Tax as defined within the “A New Tax System (Goods and Services Tax) Act 1999” (Cth).

Acceptance

1. The Customer is taken to have exclusively accepted and is immediately bound, jointly and severally, by this Contract if the Customer places an order for Equipment, or accepts Delivery.
2. This Contract constitutes the entire Contract between the parties and contains all the representations, warranties, covenants and agreements of the parties in relation to the subject matter of this Contract.
3. The special conditions (if any) set out by TC in any quotation, order or other document shall form part of this Contract, unless otherwise stated. In the event of any inconsistency between the special conditions and any other term of this Contract, the special conditions shall prevail to the extent of the inconsistency.
4. None of the Equipment shall be sublet or cross-hired by the Customer. The Customer shall not assign or transfer their interest in this Contract or part with possession of all or any portion of the Equipment without the prior written consent of TC, which consent may be arbitrarily withheld.
5. The Customer acknowledges and accepts that where TC is instructed to supply Equipment and it is later found, once on site, that the Equipment hired is not capable of completing the Services, due to height restrictions being outside the operational requirements of the Equipment and/or inaccurate information being provided at the time of quoting, which are beyond TC’s control, then TC reserves the right to provide the Customer with a variation to the Contract Price in accordance with clause 5.2. Failure to accept the variation, SHL shall be entitled to cancel the Contract under clause 24 and the Customer shall be liable for all costs incurred by TC up until the time of cancellation.

Electronic signatures and any acceptance of these terms via text message (SMS) or email shall be deemed valid and binding on both parties, provided such signature or acceptance is sent from and received at the officially recognised contact details of each party (being their designated mobile phone number or email address)..

1. These terms and conditions may be meant to be read in conjunction with TC’s Equipment Hire Form/s, and:
  1. where the context so permits, the term ‘Services’ shall include any supply of Equipment, as defined therein; and
  2. if there are any inconsistencies between the two documents then the terms and conditions contained therein shall prevail.

Errors and Omissions

1. The Customer acknowledges and accepts that TC shall, without prejudice, accept no liability in respect of any alleged or actual error(s) and/or omission(s):
  1. resulting from an inadvertent mistake made by TC in the formation and/or administration of this Contract; and/or
  2. contained in/omitted from any literature (hard copy and/or electronic) supplied by TC in respect of the Services.
2. In the event such an error and/or omission occurs in accordance with clause 3.1, and is not attributable to the negligence and/or wilful misconduct of TC; the Customer shall not be entitled to treat this Contract as repudiated nor render it invalid.

Change in Control

1. The Customer shall give TC not less than fourteen (14) days prior written notice of any proposed change of ownership of the Customer and/or any other change in the Customer’s details (including but not limited to, changes in the Customer’s name, address and contact phone or fax number/s, change of trustees or business practice). The Customer shall be liable for any loss incurred by TC as a result of the Customer’s failure to comply with this clause.

Charges and Payment

1. The Customer shall pay the Charges to TC for the duration of the Hire Period, which (at TC’s sole discretion) shall be either:
  1. as indicated on invoices provided by TC to the Customer in respect of Equipment supplied on hire;
  2. TC’s current Charges as at the date of Delivery, according to TC’s current pricelist rates (rates are subject to change upon written notice to the Customer and shall take effect from the date of notice. In the event that the Customer does not accept the revised rates, the Customer has the right to terminate without prejudice upon the required notice of termination); or
  3. calculated on a working day of eight (8) hours per day (from 7.00am to 3.30pm, allowing a thirty (30) minute lunch break); or
  4. TC’s quoted Charges (subject to clauses 5.2), which will be valid for the period stated in the quotation or otherwise for a period of thirty (30) days.
2. TC reserves the right to vary the Charges, in the event that:
  1. a variation to TC’s quotation (including but not limited, any change of Equipment due to height restrictions) is requested; or
  2. where TC is required to mobilisation and demobilisation Equipment when TC is required to transport the Equipment to and from TC’s depot, unless otherwise agreed; or
  3. where Equipment is used outside TC’s standard working hours (as specified in clause 5.1(c) above) or on a weekend or public holiday. “Excess” is more than ten (10) hours per calendar day; or
  4. rates in respect of TC’s personnel are subject to additional Charges for loading, penalties and allowances as applicable to TC personnel pursuant to their terms of engagement (including but not limited to, night shifts, weekends, standby, overtime, public holidays, meals, travel and accommodation rates); or
  5. a fuel levy shall be payable where the price of diesel fuel exceeds the fuel price specified in TC’s pricelist rates.
3. Variations will be charged for on the basis of TC’s quotation, and will be detailed in writing, and shown as variations on TC’s invoice. The Customer shall be required to respond to any variation submitted by TC within ten (10) working days. Failure to do so will entitle TC to add the cost of the variation to the Price. Payment for all variations must be made in full at the time of their completion.
4. TC may, in its sole discretion, require the Customer to pay a non-refundable deposit.
5. Time for payment for the Equipment being of the essence, the Charges will be payable by the Customer on the date/s determined by TC:
  1. Hire Charges which may be:
    1. Half Day – means four (4) hours or overnight providing the Equipment is picked up after 4.00pm and returned by 8.30am the following day (maximum usage time four (4) hours;
    2. Daily – means twenty-four (24) hours (maximum usage time eight (8) hours): if the weekly rate is less than the accumulated daily rate, then the weekly hire rate will apply;
    3. Weekly – means five (5) days of eight (8) hours each (maximum usage time forty (40) hours);
    4. Monthly – means a calendar month (maximum usage time one hundred and eight dollars (180) hours);
    5. Trade Customers – long term applies to and is chargeable for hire with a minimum of twenty-eight (28) days, unless otherwise stated in the Contract Details, extra days of hire will be charged in addition on a daily basis, pro-rata the monthly rate.
  2. for certain approved Customer, due forty-five (45) days following the end of the month in which a statement is posted to the Customer’s address or address for notices; or
  3. the date specified on any invoice or other form as being the date for payment; or
  4. failing any notice to the contrary, the date which is thirty (30) days following the date of any invoice given to the Customer by TC.
6. No allowance has been made in the Charges for the deduction of retentions. In the event that retentions are made, TC reserves the right to treat all retentions as placing the Customer’s account into default.
7. The Customer will make payment to TC on/by each due date by cash, bank cheque, electronic/on-line banking, credit card (plus a surcharge per transaction may apply), or by any other method as agreed to between the Customer and TC.
8. GST and other taxes and duties that may be applicable shall be added to the Price except when they are expressly included in the Charges.
9. In addition the Customer must pay any other taxes and duties (including stamp duty, import duties, bonds or any other charges which may be levied upon this Contract and/or the use of the Equipment or Delivery) that may be applicable in addition to the Charges except where they are expressly included in the Charges.
10. Receipt by TC of any form of payment other than cash shall not be deemed to be payment until that form of payment has been honoured, cleared or recognised, and until then TC’s rights and ownership in relation to the Equipment, and this Contract, shall continue.
11. The Customer shall not be entitled to set off against, or deduct from the Charges, any sums owed or claimed to be owed to the Customer by TC nor to withhold payment of any invoice because part of that invoice is in dispute, such dispute must detailed in writing and given to TC within seven (7) days of the date of the invoice.

Hire Period

1. The Hire Period shall commence, and Charges shall be paid by the Customer to TC, from the time the Equipment departs from TC’s premises and will continue until (whichever last occurs):
  1. the termination of the Hire Period; or
  2. the return of the Equipment to TC’s premises in good operating condition, reasonable wear and tear excepted; or
  3. the date which the Equipment is available for Recovery by TC, as notified by the Customer (if such Recovery is agreed to by TC), provided the Equipment is recovered in good operating condition, reasonable wear and tear excepted; or
  4. the expiry of the Minimum Hire Period.
2. Notwithstanding clause 6.1, the Customer shall provide a minimum of one (1) weeks’ notice to TC of their intention to return the Equipment, and the date of expiry or cessation of this Contract shall in all cases be treated as a full day’s hire.
3. Notwithstanding anything contained in this Contract to the contrary, TC reserves the right to take possession of the Equipment at any time and without notice to the Customer when, in TC’s opinion, the Equipment is endangered or imperilled by any reason or cause whatsoever. The Customer indemnifies TC in respect of any loss arising from any act done under or by virtue of this clause 6.3. Any action taken by either TC or the Customer as set forth herein shall be without prejudice to any other rights or remedies that TC or Customer may have respectively.

Extension of the Hire Period

1. If, and only if not later than one (1) month before the expiry of the Hire Period, the Customer gives notice to TC requesting an extension of the Hire Period, such extension is, if any, subject to TC’s agreement, the availability of the Equipment and the following conditions:
  1. the Charges and all other payments due under this Contract having been received by TC in full as at the expiry of the Hire Period;
  2. there is no breach of the Customer’s covenants, the Hire Period shall be extended for the period specified between the parties, commencing on the day following the date of expiration of the Hire Period and at the Charges, as varied, on the same terms and conditions of this Contract, except for the insertion of the extended term.

Delivery and Recovery

1. As agreed by TC and at TC’s sole discretion:
  1. delivery of the Equipment (“Delivery”) shall take place when the Customer takes possession of the Equipment at either TC’s premises or the Site;
  2. recovery of the Equipment (“Recovery”) will be completed when the Equipment has been either collected from the Site and/or returned to TC’s premises.
2. Unless otherwise specified:
  1. the costs of Delivery and Recovery, including the supply of additional labour, equipment, materials and transportation expenses and other requirements are in addition to the Charges.
  2. Customer is responsible for the supply of all necessary craneage, labour and other handling equipment to offload, assemble, erect, dismantle and load the Equipment at the Site.
3. In the event the Customer is unable to accept Delivery and/or Recovery as arranged, or there are any delays due to free and clear access to the Site not being available, TC shall be entitled to charge all additional costs involved with the redelivery and/or storage, or subsequent attempts at Recovery, as applicable, and all Charges lost as a direct result of the Equipment being unavailable.
4. Any time or date given by TC to the Customer is an estimate only. The Customer must still accept Delivery even if late and TC will not be liable for any loss or damage incurred by the Customer as a result of any delay in Delivery and/or Recovery of the Equipment, commencement of work or interruption to the continuity of work due to reasons beyond the practical control of TC (including, but not limited to, any event outlined in clause 27.8, breakdown of plant, transport delays, accidents, or other labour difficulties, etc.).

Insurance

1. The Customer hires the Equipment at the Customer’s own risk and indemnifies TC against any and all loss in respect of or damage to the Equipment, including any consequential loss, unless the Customer elects to pay a Damage Waiver.
2. Damage Waiver is not insurance, but is an agreement (where applicable under a separate agreement) by TC that the Customer’s liability for damage to the Equipment can be limited in some circumstances only, to an amount called the Damage Waiver Excess. The Customer is not entering into a contract of insurance with TC by paying for the Damage Waiver.
3. Where the Damage Waiver Amount has been charged to the Customers, an excess will apply to all claims, Damage Waiver Excess will be fifteen percent (15%) of cost or five hundred dollars ($500.00) whichever, is greater and the Customer shall promptly submitted to TC a written police report (where necessary) and details that adequate precautions had been taken to protect the Equipment, including that the Equipment was reasonable locked and secured.
4. Where clause 9.3 is not affected the Customer accepts full responsibility for the safekeeping of the Equipment and must effect insurance (and maintain any such insurance) with an insurer acceptable to TC in the name of TC and the Customer for their respective rights and interests whilst the Equipment is at the Site, or in transit between the Site and TC’s premises in respect of the following:
  1. the full replacement value of the Equipment against such risk as TC may nominate, or in the absence of such nomination, against loss or damage by theft, fire, accident and such other risks as are insured against by prudent persons engaged in a similar business to that of the Customer, excluding liability for claims being the subject of compulsory third party injury insurance on vehicles registered by TC;
  2. a policy of employer’s indemnity insurance and works compensation insurance in respect of all employees of the Customer in respect of damage or loss caused by the use, maintenance, repair and storage of the Equipment;
  3. public risk liability (at least 20 million) and product defect liability, and any other such insurance in support of the indemnities contained in this Contract, and must in respect of any policy of insurance, deliver to TC a copy of the policy and promptly pay all premiums and stamp duty payable in respect of the policy.
5. TC will maintain current insurance policies in respect of the Equipment to its full insurable value.
6. In the event that the Equipment provided by TC is the subject of an insurance claim made by TC, as a result of any action or inaction of the Customer, then the Customer accepts full liability for the value of Equipment (or part thereof) that is lost, stolen or damaged in any way any during the entire rental term, irrespective of whether the insurance claim is successful.

Risk
1. The Customer assumes all risks and liabilities in respect of the Equipment, including any injury to or death of any person and any damage to property arising from the possession, use, maintenance, repair or storage of the Equipment.
2. The Customer is solely responsible for any loss of or damage to the Equipment from any cause whatsoever, including (without limitation) corrosion, rust, oxidation, and any chemical reaction.
3. The Customer acknowledges and agrees that:

(a) the Customer has satisfied itself as to the condition and suitability of the Equipment and its fitness for the Customer’s intended purposes;

(b) prior to entering into this Contract, the Customer has examined the Equipment and satisfied itself as to its compliance with the manufacturer’s (or TC’s) specifications and the validity of any applicable warranties; and

(c) at the time of delivery or pickup, the Customer received full operational and safety instructions from TC or its authorised agent, understands how to use the Equipment safely, and confirms that all required safety devices (including emergency stops, deadman switches, bump bars and similar devices) were fully operational.

Unless otherwise agreed in writing, TC is not the principal contractor and has no obligation to maintain contract works insurance or to comply with any workers’ compensation or workplace health and safety requirements under applicable legislation or policy.

Title

1. The Equipment is and will at all times remain the absolute property of TC, and the Customer must return the Equipment to TC upon request to do so.
2. The Customer must not, and must not attempt to, assign, mortgage, pledge, sell, charge, encumber, sublet, part with possession of, grant any lien, license or other encumbrance over, or otherwise dispose of or deal with, or permit or suffer to exist any lien or other encumbrance over, the Equipment or any part thereof, or any of the rights of the Customer to the Equipment, or any of the rights of the Customer under this Contract, and must keep the Equipment free from any distress, execution or other legal process.
3. Nothing contained in this Contract renders on the Customer any right or property or interest in the Equipment other than as a hirer.
4. The Customer must notify all persons who come in contact with the Equipment, including those who have an interest in the Services being undertaken, of the existence on the restriction on the creation of liens, or similar interests, whether by way of pledge or otherwise, in or over the Equipment, and will notify any persons seizing the Equipment or any part thereof of the restrictions contained in this clause 11.

Condition of Equipment and Inspections

1. The Equipment will be inspected by a representative of each party to establish the general condition thereof and a statement of condition of the Equipment will be prepared:
  1. immediately prior to the commencement of this Contract; and
  2. as soon as practicable following termination of this Contract.
2. The Customer acknowledges and agrees that they will, at their own cost, reinstate the Equipment to its condition as specified in the pre-hire inspection, normal wear and tear excepted.

Wet Hire

1. Unless otherwise agreed to in writing between the parties, TC shall not be deemed the principal contractor and shall not be obligated to maintain any contract works insurance cover or be responsible with regard to any work cover requirements (including, but not limited to, compliancy under any relevant legislation or policy, etc.).
2. The Customer shall:
  1. be responsible for ensuring that TC is notified of the location of any underground services on the Site; and
  2. provide amenities and first aid services to TC’s employees in compliance with all applicable health and safety legislation in operation in the state where the services are undertaken; and
  3. should it be necessary for the Equipment to be towed in, or out of the Site, then the Customer shall be responsible for all damage and/or salvage costs involving the Equipment, and said costs shall be in addition to the Charges; and
3. Notwithstanding that the operator of the Equipment is an employee or representative of TC, the operator shall operate the Equipment in accordance with the instructions of the Customer, and accordingly, the Customer shall be liable for all responsibility and costs incurred as a result of the actions of the operator whilst following the Customer’s instructions.
4. In the event the Customer requires an employee of TC to undertake a Site induction during working hours, the Customer will be liable to pay the hourly Charges for that period, notwithstanding that the Equipment is not being operated during such time. If any induction is undertaken outside of the Hire Period then the Customer shall be liable to pay TC standard (and/or overtime, if applicable) hourly labour rate.

Dry Hire

1. The Customer shall ensure that the Equipment is operated by a properly experienced and qualified person in accordance with TC’s and manufacturer’s requirements and/or recommendations.

TC’s Employees

1. The Customer agrees not to employ, contract, subcontract or utilise in any way an employee or past employee of TC (other than through TC) for a period of no less than twelve (12) months after that employee’s last employment with TC.
2. The Customer agrees that if clause 15.1 is contravened TC will be able to invoice the Customer at its current hourly rate the hours that the employee has been employed, contracted, subcontracted or utilised in any way by the Customer and agrees to pay said invoice in accordance with the standard payment terms contained in this Contract.

Hidden Services

1. Unless otherwise agreed in writing between the Customer and TC it shall be the Customer’s responsibility to advise the precise location of all underground services on the site and clearly mark the same. The mains/services the Customer must identify include, but are not limited to, electrical services, gas services, sewer services, pumping services, sewer connections, sewer sludge mains, water mains, irrigation pipes, communication cables, fibre optic cables, oil pumping mains, and any other services that may be on site.
2. If the Customer requests TC to engage a service locator then this shall be in addition to the Price and “Dial Before You Dig” must be consulted and any potential underground services marked on site.
3. Whilst TC will take all care to avoid damage to any underground services the Customer agrees to indemnify TC in respect of all and any liability claims, loss, damage, costs and fines as a result of damage to services not precisely located and notified and notified as per clause16.1.

Compliance with Laws

1. The Customer and TC shall comply with the provisions of all statutes, regulations and bylaws of government, local and other public authorities that may be applicable to the Services, including any SafeWork (VIC) laws relating to building/construction sites and any other relevant safety standards or legislation, particularly those in relation to asbestos and/or other hazardous materials (and the safe removal and disposal of the same). The Customer agrees to indemnify TC against all claims arising from health issues related to exposure to asbestos on site.
2. The Customer shall obtain (at the expense of the Customer) all licenses and approvals or notices (including local Government approvals) that may be required in relation to use or transport of the hire Equipment.

Personal Property Securities Act 2009 (“PPSA”)

1. In this clause financing statement, financing change statement, security agreement, and security interest has the meaning given to it by the PPSA.
2. Upon assenting to these terms and conditions in writing the Customer acknowledges and agrees that these terms and conditions constitute a security agreement for the purposes of the PPSA and creates a security interest in all Equipment and/or collateral (account) – being a monetary obligation of the Customer to TC for services – that has previously been supplied and that will be supplied in the future by TC to the Customer.
3. The Customer undertakes to:
  1. promptly sign any further documents and/or provide any further information (such information to be complete, accurate and up-to-date in all respects) which TC may reasonably require to:
    1. register a financing statement or financing change statement in relation to a security interest on the Personal Property Securities Register;
    2. register any other document required to be registered by the PPSA; or
    3. correct a defect in a statement referred to in clause 18.3(a)(i) or 18.3(a)(ii);
  2. indemnify, and upon demand reimburse, TC for all expenses incurred in registering a financing statement or financing change statement on the Personal Property Securities Register established by the PPSA or releasing any registration made thereby;
  3. not register a financing change statement in respect of a security interest without the prior written consent of TC;
  4. not register, or permit to be registered, a financing statement or a financing change statement in relation to the Equipment and/or collateral (account) in favour of a third party without the prior written consent of TC.
4. TC and the Customer agree that sections 96, 115 and 125 of the PPSA do not apply to the security agreement created by these terms and conditions.
5. The Customer waives their rights to receive notices under sections 95, 118, 121(4), 130, 132(3)(d) and 132(4) of the PPSA.
6. The Customer waives their rights as a grantor and/or a debtor under sections 142 and 143 of the PPSA.
7. Unless otherwise agreed to in writing by TC, the Customer waives their right to receive a verification statement in accordance with section 157 of the PPSA.
8. The Customer must unconditionally ratify any actions taken by TC under clauses 18.3 to 18.5.
9. Subject to any express provisions to the contrary nothing in these terms and conditions is intended to have the effect of contracting out of any of the provisions the PPSA.
10. Only to the extent that the hire of the Equipment exceeds a two (2) year hire period, shall this clause 18 apply as a security agreement in the form of a PPS Lease in respect of Section 20 of the PPSA, in all other matters this clause 18 will apply generally for the purposes of the PPSA.

Security and Charge

1. In consideration of TC agreeing to supply Equipment, the Customer charges all of its rights, title and interest (whether joint or several) in any land, realty or other assets capable of being charged, owned by the Customer either now or in the future, to secure the performance by the Customer of its obligations under these terms and conditions (including, but not limited to, the payment of any money).
2. The Customer indemnifies TC from and against all TC’s costs and disbursements including legal costs on a solicitor and own Customer basis incurred in exercising TC’s rights under this clause.
3. The Customer irrevocably appoints TC and each director of TC as the Customer’s true and lawful attorney/s to perform all necessary acts to give effect to the provisions of this clause 19 including, but not limited to, signing any document on the Customer’s behalf.

Defects, Warranties and Returns, Competition and Consumer Act 2010 (CCA)

1. All conditions and warranties, express or implied, whether arising by statute or otherwise, as to the condition, suitability, quality, fitness for any purpose or safety of or title to the Equipment are hereby negative and excluded to the full extent permitted by the law, and TC gives no such warranty or condition, and the Customer acknowledges that TC has not given any such warranty or condition.
2. The terms of this Contract that exclude or limit TC’s liability shall apply only to the extent permitted by law, and subject to the provisions of the Competition and Consumer Act 2010 and other statutes from time to time in force which cannot be excluded, restricted or modified, or which can only be excluded, restricted or modified to a limited extent, and if any such statutes apply to this Contract, then to the extent to which TC is entitled to do so, TC’s liability under such statutes shall be limited at TC’s absolute option to:
  1. the replacement of the Equipment or the supply of plant similar to the Equipment; or
  2. the payment of the cost of having the Equipment repaired; or
  3. the repair of the Equipment; and
  4. Hire Charges will be suspended in full until the Equipment is replaced (at TC’s discretion) or returned to operating condition.
3. Notwithstanding clauses 21.1 and 21.2, but subject to the CCA, TC shall not be liable for any defect or damage which may be caused or partly caused by, or arise as a result of:
  1. the Customer failing to properly maintain or store the Equipment;
  2. the Customer interfering with the Equipment in any way without TC’s written approval to do so;
  3. the Customer using the Equipment for any purpose other than that for which it was designed;
  4. the Customer continuing the use of the Equipment after any defect became apparent or should have become apparent to a reasonably prudent operator or user;
  5. the Customer failing to follow any instructions or guidelines provided by TC;
  6. fair wear and tear, any accident, or act of God.

Limitation of Liability

1. Subject to clause 21:
  1. TC shall be under no liability whatsoever to the Customer for any indirect and/or consequential loss and/or expense (including loss of profit or any rectification costs), or any third party claims, suffered by the Customer in connection with the use of the Equipment and/or the provision of Services by TC, or arising out of a breach by TC of these terms and conditions. Alternatively, TC’s liability shall be limited to damages which under no circumstances shall exceed the Charges;
  2. the Customer acknowledges and agrees that TC is not liable:
    1. to the Customer for any loss, cost (whether indirect or consequential) or damage or delay through breakdown, mechanical defect or accident to or of the Equipment;
    2. to any person for any loss or damage to any property stolen from the Equipment or damaged or otherwise lost during the Hire Period or left in the Equipment after return of the Equipment to TC’s depot;
    3. to the Customer for any form of breakdown, whether mechanical electrical or structural to the Equipment whilst on hire to the Customer.
2. The Customer assumes liability for an indemnifies and holds harmless TC, its agents and employees from and against all claims, costs, damages, losses or expenses of any kind howsoever, arising under tot (including but not limited, negligence), contract, strict liability, statue or otherwise from the arrangements between the Customer and TC and including (without limitation) in relation to death of or injury to any person, loss, damage or destruction of any property including the Equipment and any goods in transit. This indemnity shall not include the Equipment.
3. To the full extent permitted by law, the Customer releases, holds harmless and discharges TC, its agents and employees in respect of all claims and demands on TC and any loss or damage caused to the Customer or its agents.

Default and Consequences of Default

1. Interest on overdue invoices shall accrue daily from the date when payment becomes due, until the date of payment, at a rate of two and a half percent (2.5%) per calendar month (and at TC’s sole discretion such interest shall compound monthly at such a rate) after as well as before any judgment.
2. If the Customer owes TC any money the Customer shall indemnify TC from and against all costs and disbursements incurred by TC in recovering the debt (including but not limited to internal administration fees, legal costs on a solicitor and own Customer basis, TC’s contract default fee, and bank dishonour fees).
3. Further to any other rights or remedies TC may have under this Contract, if a Customer has made payment to TC, and the transaction is subsequently reversed, the Customer shall be liable for the amount of the reversed transaction, in addition to any further costs incurred by TC under this clause 23 where it can be proven that such reversal is found to be illegal, fraudulent or in contravention to the Customer’s obligations under this Contract.
4. Without prejudice to TC’s other remedies at law TC shall be entitled to cancel all or any part of any order of the Customer which remains unfulfilled and all amounts owing to TC shall, whether or not due for payment, become immediately payable if:
  1. any money payable to TC becomes overdue, or in TC’s opinion the Customer will be unable to make a payment when it falls due;
  2. the Customer has exceeded any applicable credit limit provided by TC;
  3. the Customer becomes insolvent, convenes a meeting with its creditors or proposes or enters into an arrangement with creditors, or makes an assignment for the benefit of its creditors; or
  4. a receiver, manager, liquidator (provisional or otherwise) or similar person is appointed in respect of the Customer or any asset of the Customer.

Cancellation/Termination

1. Without prejudice to any other remedies TC may have, if at any time the Customer is in breach of any obligation (including those relating to payment) under these terms and conditions TC may suspend or terminate the supply of Services to the Customer. TC will not be liable to the Customer for any loss or damage the Customer suffers because TC has exercised its rights under this clause.
2. TC may terminate this Contract, or cancel Delivery, at any time before the Equipment is delivered by giving written notice to the Customer. On giving such notice TC shall repay to the Customer any sums paid in respect of the Charges. TC shall not be liable for any loss or damage whatsoever arising from such cancellation.
3. In the event that the Customer terminates this Contract, or otherwise cancels Delivery, the Customer:
  1. must provide notice of such to TC at least twenty-four (24) hours prior to the specified date of Delivery; and
  2. the Customer shall be liable for any and all loss incurred (whether direct or indirect) by TC as a direct result of the cancellation (including, but not limited to, any loss of profits).
4. Except so far as clause 24.1 applies, on termination TC shall be entitled to:
  1. retain all monies paid to it under this Contract; and
  2. recover from the Customer any other monies due and owing under this Contract as at the date of termination.
5. On termination, the Customer must deliver up to TC the Equipment (together with all parts and accessories) in clean and good order as delivered (with allowance for fair wear and tear).
6. Upon termination of this Contract following the occurrence of an Default Event, the Customer must pay to TC by way of liquidated damages, in addition to and without prejudice to any other right or remedy of TC, an amount equal to the total of:
  1. the unpaid balance of the Charges for the Hire Period which would have been payable until the expiration of the Hire Period had the Contract not been terminated;
  2. TC’s costs and expenses incurred in repossessing and storing, insuring and registering the Equipment and in entering on and removing the Equipment from land or premises on which the Equipment was situated, and make good any injury or damage caused to the land or premises;
  3. TC’s costs and expenses of repairs reasonably necessary to bring the Equipment to an operational/useable condition;
  4. interest calculated in accordance with clause 23.1 of this Contract.
7. On, or before, termination of this Contract, the Customer shall return the Equipment to TC’s premises and the Customer acknowledges and agrees that the Charges are payable:
  1. until such time as the Equipment is returned to TC’s premises and returned to its condition as specified in the on-hire inspection, normal wear and tear excepted; and
  2. for the entirety of the Hire Period, notwithstanding that the Equipment may be returned to TC prior to termination.

Privacy Policy

1. All emails, documents, images or other recorded information held or used by TC is Personal Information, as defined and referred to in clause 25.3, and therefore considered Confidential Information. TC acknowledges its obligation in relation to the handling, use, disclosure and processing of Personal Information pursuant to the Privacy Act 1988 (“the Act”) including the Part IIIC of the Act being Privacy Amendment (Notifiable Data Breaches) Act 2017 (NDB) and any statutory requirements, where relevant in a European Economic Area (“EEA”), under the EU Data Privacy Laws (including the General Data Protection Regulation “GDPR”) (collectively, “EU Data Privacy Laws”). TC acknowledges that in the event it becomes aware of any data breaches and/or disclosure of the Customers Personal Information, held by TC that may result in serious harm to the Customer, TC will notify the Customer in accordance with the Act and/or the GDPR. Any release of such Personal Information must be in accordance with the Act and the GDPR (where relevant) and must be approved by the Customer by written consent, unless subject to an operation of law.
2. Notwithstanding clause 25.1, privacy limitations will extend to TC in respect of Cookies where transactions for purchases/orders transpire directly from TC’s website. TC agrees to display reference to such Cookies and/or similar tracking technologies, such as pixels and web beacons (if applicable), such technology allows the collection of Personal Information such as the Customer’s:
  1. IP address, browser, email Customer type and other similar details;
  2. tracking website usage and traffic; and
  3. reports are available to TC when TC sends an email to the Customer, so TC may collect and review that information (“collectively Personal Information”)

In order to enable / disable the collection of Personal Information by way of Cookies, the Customer shall have the right to enable / disable the Cookies first by selecting the option to enable / disable, provided on the website prior to proceeding with a purchase/order via TC’s website.

1. The Customer agrees for TC to obtain from a credit reporting body (CRB) a credit report containing personal credit information (e.g. name, address, D.O.B, occupation, driver’s license details, electronic contact (email, Facebook or Twitter details), medical insurance details or next of kin and other contact information (where applicable), previous credit applications, credit history) about the Customer in relation to credit provided by TC.
2. The Customer agrees that TC may exchange information about the Customer with those credit providers and with related body corporates for the following purposes:
  1. to assess an application by the Customer; and/or
  2. to notify other credit providers of a default by the Customer; and/or
  3. to exchange information with other credit providers as to the status of this credit account, where the Customer is in default with other credit providers; and/or
  4. to assess the creditworthiness of the Customer including the Customer’s repayment history in the preceding two (2) years.
3. The Customer consents to TC being given a consumer credit report to collect overdue payment on commercial credit.
4. The Customer agrees that personal credit information provided may be used and retained by TC for the following purposes (and for other agreed purposes or required by):
  1. the provision of Services/Equipment; and/or
  2. analysing, verifying and/or checking the Customer’s credit, payment and/or status in relation to the provision of Equipment; and/or
  3. processing of any payment instructions, direct debit facilities and/or credit facilities requested by the Customer; and/or
  4. enabling the collection of amounts outstanding in relation to the Equipment.
5. TC may give information about the Customer to a CRB for the following purposes:
  1. to obtain a consumer credit report;
  2. allow the CRB to create or maintain a credit information file about the Customer including credit history.
6. The information given to the CRB may include:
  1. Personal Information as outlined in 25.3 above;
  2. name of the credit provider and that TC is a current credit provider to the Customer;
  3. whether the credit provider is a licensee;
  4. type of consumer credit;
  5. details concerning the Customer’s application for credit or commercial credit (e.g. date of commencement/termination of the credit account and the amount requested);
  6. advice of consumer credit defaults, overdue accounts, loan repayments or outstanding monies which are overdue by more than sixty (60) days and for which written notice for request of payment has been made and debt recovery action commenced or alternatively that the Customer no longer has any overdue accounts and TC has been paid or otherwise discharged and all details surrounding that discharge(e.g. dates of payments);
  7. information that, in the opinion of TC, the Customer has committed a serious credit infringement;
  8. advice that the amount of the Customer’s overdue payment is equal to or more than one hundred and fifty dollars ($150).
7. The Customer shall have the right to request (by e-mail) from TC:
  1. a copy of the Personal Information about the Customer retained by TC and the right to request that TC correct any incorrect Personal Information; and
  2. that TC does not disclose any Personal Information about the Customer for the purpose of direct marketing.
8. TC will destroy Personal Information upon the Customer’s request (by e-mail) or if it is no longer required unless it is required in order to fulfil the obligations of this Contract or is required to be maintained and/or stored in accordance with the law.
9. The Customer can make a privacy complaint by contacting TC via e-mail. TC will respond to that complaint within seven (7) days of receipt and will take all reasonable steps to make a decision as to the complaint within thirty (30) days of receipt of the complaint. In the event that the Customer is not satisfied with the resolution provided, the Customer can make a complaint to the Information Commissioner at www.oaic.gov.au.

General

1. Any dispute or difference arising as to the interpretation of these terms and conditions or as to any matter arising hereunder, shall be submitted to, and settled by, the relevant governing agency for the state in which the Services are performed which shall be the Domestic Building Dispute Resolution Victoria (DBDRV) in the first instance, failure to resolve then the matter will be directed to Victorian Civil & Administrative Tribunal (VCAT). Where a dispute exists, each of the parties must continue to perform its obligations under this Contract unless the other party evinces an intention not to comply with this clause.
2. The failure by either party to enforce any provision of these terms and conditions shall not be treated as a waiver of that provision, nor shall it affect that party’s right to subsequently enforce that provision. If any provision of these terms and conditions shall be invalid, void, illegal or unenforceable the validity, existence, legality and enforceability of the remaining provisions shall not be affected, prejudiced or impaired.
3. These terms and conditions and any contract to which they apply shall be governed by the laws of Victoria, the state in which TC has its principal place of business, and are subject to the jurisdiction of the Court in that state.
4. The Customer agrees to assist and cooperate with TC in relation to TC exercising any and all of their rights in respect to the Equipment, including without limitation to, TC instituting, carrying on or enforcing, compromising or completing any legal proceedings which TC thinks desirable to protect their rights in respect of the Equipment.
5. TC may licence and/or assign all or any part of its rights and/or obligations under this Contract without the Customer’s consent.
6. The Customer cannot licence or assign without the written approval of TC.
7. TC may elect to subcontract out any part of the Services but shall not be relieved from any liability or obligation under this Contract by so doing. Furthermore, the Customer agrees and understands that they have no authority to give any instruction to any of TC’s sub-contractors without the authority of TC.
8. The Customer agrees that TC may amend their general terms and conditions for subsequent future Contracts with the Customer by disclosing such to the Customer in writing. These changes shall be deemed to take effect from the date on which the Customer accepts such changes, or otherwise at such time as the Customer makes a further request for TC to provide Services/Equipment to the Customer.
9. Neither party shall be liable for any default due to any act of God, war, terrorism, strike, lock-out, industrial action, fire, flood, storm or other event beyond the reasonable control of either party.
10. Both parties warrant that they have the power to enter into this Contract and have obtained all necessary authorisations to allow them to do so, they are not insolvent and that this Contract creates binding and valid legal obligations on them.