Hire Agreement – Road Plates

1. Definitions

  1. In this Agreement, unless the context otherwise indicates, each of the following expressions shall have the meaning assigned to it below:

ACL means the Australian Consumer Law Schedule of the Competition and Consumer Act 2010 (Cth) and its associated Regulations as amended;

Agreement means this Equipment Hire Master Agreement, including all Annexures and Schedules;

Consumer means “consumer” as defined in the ACL and in determining if the Hirer is a consumer the determination is made if the Hirer is a consumer under the Agreement and/or the Purchase Order;

Equipment means the equipment set out in a Purchaser Order.

Force Majeure Event means an event beyond the reasonable control of a Party including, without limitation, accident, act of God, act or threat of terrorism or war, breakdown, epidemic, natural disaster, pandemic, sustained inclement weather, import or export or travel restriction, industrial dispute, lock out or strike;

GST means any goods or services tax as defined in the A New Tax System (Goods and Services Tax) Act 1999 (Cth) and its associated Regulations as amended;

Hire Period means the time from when the Equipment leaves Elite’s premises or other nominated storage location until received back at Elite’s premises or other nominated storage location;

Liabilities means any actions, claims, costs, damages, demands, expenses, fees, liabilities, penalties or suits; Party means a party to this Agreement, and Parties means both of them;

Policies means any and all directions, instructions, manuals and policies given or made available by Elite to the Hirer in relation to use of the Equipment;

PPSA means the Personal Property Securities Act 2009 (Cth) and its associated Regulations as amended; and

Purchase Order means a written order agreed between the Parties that sets out the specific details pertaining to the Equipment ordered, including quantities, prices, due dates and any associated functional specifications. A Purchase Order may take the form of an accepted Elite quotation, or Hirer purchase order expressly accepted by Elite.

Site means the location set out in the Purchase Order.

2. Basis of Agreement

  • This Agreement and the Purchase Order governs the Hirer’s hire of the Equipment from Elite, and these terms apply exclusively and cannot be replaced by any other terms without Elite’s express, prior, written agreement.
    • Upon the parties agreement to a Purchase Order, a separate and distinct contract incorporating that document(s) and this Agreement (is formed between the Hirer and Elite for the supply of the relevant Equipment. If there is inconsistency between this Agreement and any Purchase Order, the terms of the Purchase Order prevail.
    • The Agreement operates for the Hire Period.

3. Hire

  • Subject to the terms of this Agreement and the Purchase Order:
    • Elite hires the Equipment to the Hirer; and
    • the Hirer hires the Equipment from Elite.

4. Title

  • The Hirer acknowledges and agrees that Elite owns and retains title to the Equipment at all times, and the Hirer takes the Equipment as bailee only.
    • The Hirer must not cover, deface or remove, or allow or cause to be covered, defaced or removed, any identifying marks of ownership on the Equipment.
    • In no circumstances and at no time will the Equipment or any part of the Equipment be deemed to be a fixture.
    • The Hirer must not assign, encumber, mortgage, offer to sell, pledge, sell, sub-hire or otherwise deal with the Equipment in any manner that is inconsistent with the Elite’s rights as owner of the Equipment.

5. Payment

  • Unless otherwise agreed by Elite in writing, the Hirer must pay fees in accordance with the Purchase Order
    • Unless specified otherwise, the Hirer must pay to Elite any GST required to be paid or accounted for by Elite.
    • The time for payment is of the essence.

6. Collection, delivery and transport

  • Unless otherwise agreed by the Parties in writing:
    • Elite will arrange the delivery of the Equipment to the Site at the start of the Hire Period; and
    • Elite will arrange collection of the Equipment at the end of the Hire Period.
    • Any period or date for delivery of the Equipment stated by Elite is an estimate only and not a contractual commitment, and to the maximum extent permitted at law Elite excludes liability for any Liabilities claimed or suffered by the Hirer or any third party arising from or relating to any delay in delivery.
    • If Elite cannot deliver the Equipment by an estimated delivery date, it will do so within a reasonable time.
    • If the Equipment requires transportation for replacement or repair the cost of transport is born by Elite unless the replacement or repair is due to damage of the Equipment caused by the Hirer, in which case the Hirer is liable for such transportation costs.

7. Equipment

  • The Hirer acknowledges and agrees that the Hirer’s is on risk in relation to the Equipment immediately upon, as applicable:
    • the Hirer’s collection and taking of possession of the Equipment from Elite’s premises; or
    • delivery of the Equipment to the Hirer’s Site or otherwise into the Hirer’s custody.
    • The Hirer acknowledges and agrees that it is liable for any and all damage to the Equipment that occurs during the Hire Period, other than fair wear and tear.
    • Unless otherwise agreed by the Parties in writing, the Hirer must:
      • unload and load the Equipment at the Site as appropriate and necessary;
      • comply strictly with any and all Policies to which it has been directed and provided with access;
      • ensure the safekeeping of the Equipment during the Hire Period;
      • ensure the Equipment is not moved from the Site except:
        • as envisaged under, or for the purposes of giving effect, to this Agreement; or
        • in case of emergency, in which case the Hirer must notify Elite immediately;
      • protect the Equipment against damage, distress, fire, theft or seizure;
      • ensure the Equipment is not used for any purpose beyond its rated capacity or in a manner likely to result in undue wear;
      • ensure the Equipment is not used for any purpose other than a purpose for which it is intended;
      • where Elite is responsible for collecting the Equipment at the end of the Hire Period, notify Elite immediately when the Equipment is available for collection and assist Elite’s to load the Equipment (if requested).

8. Limitation and exclusion

  • Except as specifically set out in this Agreement or as contained in any express warranty provided with the Equipment, this Agreement does not include by implication any other condition, term or warranty in respect of the acceptability, assembly, condition, description, design, fitness for purpose, manufacture, merchantability, performance or quality of the Equipment, or any contractual remedy for its failure.
    • If the Hirer is a Consumer, nothing in this Agreement excludes, modifies or restricts any of the Hirer’s rights or remedies against Elite for failure of a consumer guarantee under the ACL.
    • Elite is not liable for any consequential or indirect Liabilities, expenses or losses claimed or suffered by the Hirer or any third party, howsoever caused, including but not limited to loss of business, goodwill, profit, turnover or any liability to any other party, except to the extent of any liability imposed by the ACL.
    • To the maximum extent permitted at law, Elite will not be liable for any Liabilities claimed or suffered by the Hirer where Elite has failed to meet any delivery date or cancels or suspends supply of the Equipment.

9. Insurance

  • The Hirer is responsible at its own cost for insuring itself, its personnel, its property, the Site, third parties and their property against all risks arising from the use of the Equipment.
    • The Hirer must maintain its own insurance for accident, damage, fire, loss and theft of the Equipment to its full replacement value.
    • The Hirer is liable to Elite in the amount of the full replacement value of any Equipment damaged, lost or stolen during the Hire Period, and such liability is not limited to the amount of any insurance coverage held.
    • If the Equipment is involved in any accident resulting in injury to persons or damage to the Equipment or other property, the Hirer must:
      • immediately notify Elite by telephone and confirm such notice in writing; and
      • not make any admission, offer, payment or promise of any kind without Elite’s written consent.

10. Responsibility and indemnity

  1. The Hirer is solely responsible for all risks arising from or relating to the selection, storage, use and location of the Equipment.
    1. The Hirer:
      1. is liable to Elite for; and
      1. indemnifies Elite from and against;

any and all loss of or damage to the Equipment during the Hire Period, except to the extent such loss or damage was caused by Elite.

  1. The Hirer indemnifies and keeps Elite harmless from and against all Liabilities (including all legal costs on a full indemnity basis) arising from or in connection with the Equipment as a result of its selection, storage, use or location.

11. Default and termination

  1. The Parties may terminate a Purchase Order at any time by mutual agreement.
    1. A Party (Non-Defaulting Party) may terminate a Purchase Order with immediate effect if the other Party (Defaulting Party) commits a breach of this Agreement and fails to remedy such breach within 14 days of written notice from the Non-Defaulting Party requiring such breach to be remedied.
    1. In addition to Elite’s rights in clause 11.2, if the Hirer:
      1. allows the Equipment to be damaged or lost, or the Equipment is otherwise damaged or lost while under the Hirer’s responsibility;
      1. defaults in payment by the due date of any amount payable to Elite;
      1. is a natural person and dies or becomes bankrupt or enters into any scheme of arrangement, or any assignment or composition with or for the benefit of his or her creditors or any class of his or her creditors generally; or
      1. is a corporation and it enters into any scheme of arrangement, or the like, for the benefit of its creditors, has as a liquidator, administrator, receiver or manager appointed in respect of its assets, or any action is taken for the liquidation, winding up or dissolution without winding up of the Hirer;

then Elite may, without prejudice to any of its other accrued or contingent rights

  • charge the Hirer for, and the Hirer must indemnify Elite from and against, all Liabilities (including, without limitation, all legal costs and expenses) incurred by it resulting from the default or in taking action to enforce compliance with the Agreement or to recover the Equipment;
    • charge the Hirer for the cost of repairing or replacing (at its then current replacement value) any lost, damaged or destroyed Equipment;
    • charge the Hirer for subsequent lost hire charges as a result of the Equipment being lost, damaged or destroyed, until the Equipment is repaired or replaced;
    • subject to any applicable statutory stay of proceedings, cease or suspend supply of any further Equipment to the Hirer; or
    • subject to any applicable statutory stay of proceedings, by written notice to the Hirer, terminate this Agreement.

12. Consequences of termination or expiry

  1. Upon termination of this Agreement or Purchase Order or expiry of the Hire Period, the Hirer must immediately:
    1. provide Elite with such access as is or may be necessary to repossess the Equipment
    1. Elite will arrange collection of the Equipment after such access is provided.
    1. If the Hirer does not comply with clause 12.1, then:
      1. Elite is entitled to enter the Site, or any other premises of the Hirer at which the Equipment is or is suspected to be, to repossess the Equipment;
      1. Elite will not be liable for, and the Hirer indemnifies and keeps Elite harmless from and against, any Liabilities of any kind whatsoever claimed or suffered by the Hirer or any third party caused by or arising from or in relation to such entry and repossession.
    1. If the Equipment is not returned in accordance with clause 12.1, then the Agreement, Purchase Order and Hire Period will continue until the Equipment is returned or repossessed.

13. PPSA

  1. For the purposes of this clause, the terms used have the same meaning as contained in the PPSA.
    1. If Elite determines that this Agreement is or contains a security interest for the purposes of the PPSA, the Hirer must, at its cost and immediately upon Elite’s request:
      1. do all things reasonably required (including execution of documents) to ensure Elite has a continuously perfected security interest (as defined in the PPSA) created in the Equipment pursuant to this Agreement, including but not limited to:
  2. providing details of any item of collateral sufficient to complete registration of the security interest in accordance with the requirements of the PPSA;
  3. enabling Elite to apply for registration of or give any notification in relation to the security interest; and
  4. enabling Elite to exercise its rights in relation to the security interest;
    1. procure from any person considered by Elite to be relevant to its security position, such agreements and waivers as Elite may at any time require to ensure Elite attains the highest ranking security possible in respect of the security interest.
    1. In circumstances where this Agreement or the Purchase Order constitutes a PPS Lease, the Hirer acknowledges that it is the grantor and Elite is the secured party holder of a Purchase Money Security Interest (PMSI) by virtue of this Agreement, the Purchase Order and the PPSA.
    1. The Hirer must not, except with Elite’s express, written consent, allow to be, or be liable to become, perfected or attached in favour of any person, a security interest in any of the Equipment, whether to a provider of new value or otherwise.
    1. Where permitted by the PPSA, the Hirer waives any right to receive the disclosures, notifications, verifications or other documentation specified under sections 95, 118, 121(4), 130, 132(3)(d), 132(4), 135 and 157 of the PPSA.
    1. Elite and the Hirer agree to contract out of and nothing in the provisions of sections 96,125, 129, 142 and 143 of the PPSA shall apply to this Agreement.
    1. To the extent permitted by the PPSA:
      1. the provisions of Chapter 4 of the PPSA which are for the benefit of the Hirer or which place obligations on Elite will apply only to the extent that they are mandatory or Elite agrees to their application in writing; and
      1. where Elite has rights in addition to those in Chapter 4 of the PPSA, those rights will continue to apply.
    1. For the purposes of section 276(6) of the PPSA, Elite and the Hirer agree and undertake that this Agreement and any information pertaining to the Equipment shall be kept confidential at all times, and neither Party may disclose any information pertaining to the Agreement or the hire of the Equipment except as required by law or as is already in the public domain.
    1. The Hirer hereby consents and appoints Elite to be an interested person and the Hirer’s authorised representative for the purposes of section 275(9) of the PPSA.

14. Force Majeure

  1. Subject to the terms of this clause 14, neither Elite nor the Hirer will be liable in any way howsoever arising to the extent it is prevented from acting by a Force Majeure Event.
    1. Nothing in this clause 14 operates to excuse the Hirer from any obligation to pay money to Elite.
    1. If a Party is prevented from acting by a Force Majeure Event, that Party must:
      1. act honestly and in good faith;
      1. promptly notify the other Party of the existence and expected duration of the Force Majeure Event;
      1. take all reasonable steps to alleviate or remedy the effect of the Force Majeure Event; and
      1. subject to clause 14.4, resume performance of the obligation prevented by the Force Majeure Event as soon as practicable after the Force Majeure Event ceases.
    1. If a Force Majeure Event prevents performance of an obligation beyond 30 days, either Party may suspend or terminate the Agreement by written notice without liability of any kind other than as set out in this Agreement.

15. Miscellaneous

  1. The laws of Quensland, Australia, from time to time govern this Agreement.
    1. The parties agree to the non-exclusive jurisdiction of the courts of Quensland, the Federal Court of Australia, and courts entitled to hear appeals from those courts.
    1. A Party’s failure to enforce its rights under this Agreement shall not be construed as a waiver of any of that Party’s rights.
    1. If any clause of this Agreement is unenforceable it must be read down to be enforceable or, if it cannot be read down, the term must be severed from this Agreement without affecting the enforceability of the remaining terms.
    1. A notice must be in writing and handed personally or sent by email, or prepared mail to the last known address of the addressee.