DRY HIRE EQUIPMENT RENTAL AGREEMENT

Please read the below Operative Provisions that are acknowledged by the hirer when signing a DRY HIRE EQUIPMENT RENTAL AGREEMENT with Coen Cranes Pty Ltd.

1.Definitions

“Agreement” means the terms and conditions contained herein, together with any Quotation, order, invoice or other document or amendments expressed to be supplemental to this Agreement.
“Commencement Date” is defined in Schedule 1, Item 6.
“Credit Application” means a credit facility/account provided by the Owner .
“Dry Hire” means the Equipment supplied without a driver/operator, without fuel, oil or greases. Any taxes or duties appropriate to this type of hire shall be borne by the Hirer. The Hirer is also responsible for providing an operator and insurance for the Equipment.
“Dry Hire Charges” means the amount payable by the Hirer to the Owner in respect of the time period based on those rates set out in this agreement.
“Equipment” means all items hired from the Owner to the Hirer at the Hirer’s request from time to time and include but not limited to all plant, machinery, vehicles, tools, accessories, attachments, parts, manuals, instructions, replacement and substitute items. The Equipment shall be considered owned by the Owner whether owned by the Owner or not for the purposes of this Agreement.
“Expiry Date” is defined in Schedule 1, Item 7.
“Fair wear and tear” means the expected and reasonable deterioration of the equipment caused by the use of the equipment under normal working conditions with qualified personnel providing proper operation, servicing and maintenance.
“GST” means the Goods and Services Tax as defined within the ‘A New Tax System (Goods and Services Tax) Act 1999” (Cth).
“Hirer” means the person/s or any person acting on behalf of and with the authority of the Hirer requesting the Owner to supply the Equipment and the business set out in the ‘Hirer details’ section of Schedule 1.
“Hire Period” means the period from the Commencement Date to the Expiry Date.
“Operator” means any person who is authorised to and operates the Equipment.
“Payment Claim” means an invoice issued to the Hirer by the Owner for Services under this Agreement and has the same meaning as under the relevant SOP legislation in Schedule 1.
“Payment Schedule” means the Hirer’s response to a Payment Claim and has the same meaning as under the relevant SOP legislation in Schedule 1.
“Price” means the Owner’s Quotation or Rate Sheet annexed to this agreement.
“Services” means the operation of the Equipment by an Operator.

2.Acceptance and Entire Agreement

The Hire Charges listed in Schedule 1 are valid for 30 days from the date of issuance and subject to cost escalation thereafter.
The Hirer is taken to have exclusively accepted and is immediately bound, jointly and severally, by these terms and conditions if the Hirer places an order for or accepts hire of the Equipment from the Owner.
The entire agreement between the Owner and the Hirer is set out in this document, any quotes or invoices and/or any Credit Application.
In the event of any inconsistency between the terms and conditions of this Agreement and any other prior document or schedule that the parties have entered into, the terms of this Agreement shall prevail.
The Hirer acknowledges that the supply of Works on credit shall not take effect until the Hirer has completed a credit application with the Owner and it has been approved with a credit limit established for the account.
In the event that the supply of Works request exceeds the Hirer’s credit limit and/or the account exceeds the payment terms, the Owner reserves the right to refuse delivery.
The Owner reserves the right to adjust the credit limit of the Hirer at its absolute discretion.
Electronic signatures shall be deemed to be accepted by either party providing that the parties have complied with Section 9 of the Electronic Transactions (NSW) Act 2000 or any other applicable provisions of that Act or any Regulations referred to in that Act.

3.Hire

The Owner will lease to the Hirer and the Hirer will take on the hire, the Equipment described in Schedule 1 (Equipment) for the period, and upon the terms specified in Schedule 1 subject to the conditions set out herein.

4.Period Rental

The Hire Period will commence in accordance with Item 6 of Schedule 1, until the date specified in Item 7 of Schedule 1.
The Hirer shall return the Equipment on or by the due date for return of the Equipment stated in the agreement.
The Hire Period includes weekends and public holidays.
The Hirer shall contact the Owner (and thereafter confirm in writing not more than 24 hours thereafter) if and as soon as it is apparent that the Hirer will be unable to return the Equipment on the due date.
If the Hirer is unable to return the Equipment on the due date, the Owner will charge the Hirer based on the rates set out in this agreement. This agreement will continue until the return of the Equipment.

5.Cancellation

Where the Hirer cancels any hiring either within seven (7) days before the hire period or during the hire period, the Hirer shall pay a sum by way of liquidated damages and not by way of penalty on the following basis:
1. any deposit paid by the Hirer or stipulated by the Owner as payable may be forfeited; and
2. the sum or balance of the sum to be paid by the Hirer shall not exceed the product of the hire rate and;

where the Hirer cancels before the hiring period, the agreed minimum hiring hours specified in Schedule 1; or
where the Hirer cancels during the hiring period, the agreed minimum hiring hours specified in Schedule 1, less any hours hired during the hiring; and
mobilisation costs (if incurred); and
Delivery costs (if incurred).

Where the Hirer cancels any hiring more than seven (7) days before the hire period, the Owner shall refund any deposit paid by the Hirer.
In respect of any hiring, the Owner reserves the right to cancel the Agreement at any time prior to the commencement of the hire period specified in Schedule 1. The Owner shall not be liable to the Hirer for any loss or damages whatsoever in the event of such cancellation.
Without prejudice to any other remedies the Owner may have, if at any time the Hirer is in breach of any obligation (including those relating to payment) under these terms and conditions the Owner may suspend or terminate the hire of Equipment to the Hirer in writing. Upon suspension or termination of the Agreement, the Owner has the right to remove the Equipment at any time and access to the Equipment must be granted.
The Owner will not be liable to the Hirer for any loss or damage the Hirer suffers because the Owner has exercised its rights under this clause.
At its absolute discretion and for its sole convenience, the Owner may cancel hire of the Equipment at any time by giving written notice to the Hirer. Following cancellation of the Agreement, the Owner is entitled to immediately take possession of the Equipment. The Hirer must give the Owner access to the Equipment when the Owner takes possession of the Equipment under this clause.
The Owner shall not be liable for any loss or damage whatsoever arising from such cancellation. Following termination of the Agreement, the Hirer remains liable to the Owner for any accrued hire charges and any further hire charges until the Owner is able to take possession of the Equipment.

6.Delivery

The Owner will deliver the Equipment to the Hirer at the time and place and on the date mentioned in Schedule 1.
The Hirer agrees that in taking delivery of the Equipment, the Hirer is satisfied as to the Equipment's general condition.
The Owner shall not be liable for delay in delivery of the Equipment or any reason.

7.Use, Operation and Maintenance of Equipment

The Hirer shall provide to the Hirer an Operator (or Operators) with the requisite qualifications, licenses, skills, training and experience required to operate the Equipment. The Hirer shall:
1. provide supervision of the performance of the Operator’s Services;
2. ensure that the Operator complies with all reasonable directions of the Owner relating to the use of the Equipment on the Hirer’s Site;
3. ensure that the Operator is given adequate access to the Hirer’s Site and Equipment as is required for the safe operation of the Equipment;
4. ensure that the Operator is not affected by drugs and/or alcohol while operating the Equipment.
The condition of the Equipment shall be recorded on an Equipment Checklist by the Owner at the Commencement of the Hire Period. The Owner is entitled to conduct quarterly inspections of the Equipment and the Hirer shall at all reasonable times give the Owner access to the Equipment. The Equipment must be returned to the Owner at the Expiry of the Hire period.
The Hirer warrants that it is liable to the Owner for any defects that arise during the Hire period, except for fair wear and tear.
The Hirer must maintain the Equipment as required by the Owner, notify the Owner immediately of any mechanical malfunction, damage, loss, destruction, or accident in connection with the Equipment, and ensure the Equipment is kept securely and in their own possession and control at all times.
The Hirer must, once the Hire Period has ended, return the Equipment in a clean condition and in good repair and working order to the Owner.
The Hirer shall be responsible for ensuring that the ground at the Location is adequate to support the Equipment under its wheels and outriggers.
The Hirer acknowledges that use of the Equipment may involve risk of injury or damage to property, and the Hirer accepts all such dangers and risks.
The Hirer must not allow any of its officers, employees, agents or contractors to tamper with, damage or alter the Equipment.
The Hirer must satisfy itself that the Equipment is suitable for the purpose for which it is used, use the Equipment only for its intended use, comply with all manufacturer's instructions and recommendations relating to the use and operation of the Equipment, ensure that all persons operating the Equipment is suitably qualified, and properly instructed in its safe and proper use, and comply with all laws relating to the use of the Equipment, including, but not limited to, holding any operating licence or permit required by law.
The Hirer must supply, at its own expense, all fuel necessary for the operation of the Equipment.
The Hirer must, without exception, comply with all applicable statutory laws and regulations.
The Hirer shall not use the Equipment or permit the Equipment to be used to lift any load which is beyond the rated hirer capacity of the Equipment or for any purpose other than that for which it is expressly hired.
The Hirer warrants that the weight of the object (or objects) to be lifted in any one lift and the radius of the proposed lift (measured from the radial point of the Equipment) will not exceed the limits for the relevant Equipment. Where the weight of the lift approximates the maximum lifting capacity of the Equipment, the Owner reserves the right to have the weight of the proposed lift confirmed on a certified weighbridge with the associated costs being met by the Hirer.
In the event of any equipment breakdown beyond the control of the Hirer (and not caused by the Hirer), rental charges will cease (after the expiration of 24 hours) until such time as the Equipment is operational. Hire charges will continue for all other operational Equipment.

8.Incidents and Safety

Any incident involving the Equipment that results in damage to any property, Equipment or injury must be immediately reported to the Owner in writing.
Any safety concerns with the Equipment must be immediately reported to the Owner.

9.Title and Risk

The Hirer assumes all risk and liability in relation to the Equipment from the time of supply by the Owner, until the Equipment is returned to the Owner in an acceptable state.
The Owner retains title to the Equipment, and the Hirer’s rights to the Equipment are as a bailee only.
The Hirer acknowledges and agrees that the Agreement creates an accepted and ongoing security agreement in relation to the supply of Equipment to the Hirer by the Owner.
The Owner reserves the right to inspect its Equipment at any site and the Hirer will facilitate this inspection/provide free access to the Equipment.

10.Insurance

The Hirer shall, at its own expense, indemnify the Owner against any loss or damage which may occur to the Equipment and any consequential loss.
The Hirer shall, at its own expense, indemnify the Owner against any loss of damage that occurs as a result of using the Equipment during the Hire Period.
It shall be the Hirer’s responsibility to insure any property to be lifted by the Equipment within the confines of the Hirer’s parameters of the Location, any of Hirer’s Equipment left at the Location overnight or other extended period and to ensure that Hirer's interest is noted on the relevant insurance policy.
The Hirer shall ensure that at all times during the Hire Period that it is insured as required by law and by this Agreement. The Hirer must provide the certificate of Public Liability insurance. The insurance cover must:
1. Provide cover for the indemnities of the Hirer under this Agreement, noting the Owner as an interested party; and
2. have a minimum limit of cover of $20,000,000.
Additionally, if equipment is hired on a Dry Hire basis, the Hirer must obtain Plant insurance to cover loss or damage to the Equipment. The insurance policy:
1. Must cover the market value of the Equipment hired on a Dry Hire basis, including any necessary installations and commissioning costs; and
2. Must note the Owner as an interested party.
A copy of the insurance certificate and product disclosure statement must be provided to the Owner at least five (5) Business days before the Hirer’s Operator commences operating the Equipment.

11.Invoices and Payment Terms

The price is as per Item 4 of Schedule 1;
The time for issuing Payment Claims is as per Item 9 of Schedule 1.
A Payment Claim may be issued within a period of 24 months after the Hire Charges to which the Payment Claim relates, was incurred.
The Hirer must issue a Payment Schedule to a Payment Claim issued by the Owner within five (5) Business Days of service of the Payment Claim.
The Owner reserves the right to change the Price if an extension of the Hire Period is requested.
Time for payment of the Equipment supplied under this quote being of the essence, the Price will be payable within the Payment Terms specified in Schedule 1.
If the Hirer has not completed a credit application to the Owner’s approval, the payment terms are Cash on Delivery (COD).
Payment may be made by credit card (a surcharge may apply per transaction) or by any other method as agreed to between the Hirer and the Owner. The Hirer authorises the Owner to charge its credit card for services supplied under this Agreement.
The Owner may apply and allocate payments received by, or on behalf of, the Hirer in a manner in the Hirer’s absolute and unfettered discretion, including so as to attribute the payments to satisfy obligations which are or are not secured by a purchase money security interest or otherwise. the Owner may allocate payments at the time of receipt of at any time afterwards. On any default by the Hirer, the Owner may re-allocate payments previously received and allocated.
The Hirer shall not be entitled to set off against, or deduct from the Price, any sums owed or claimed to be owed to the Hirer by the Owner nor to withhold payment of any invoice because part of that invoice is in dispute.

Unless otherwise stated the Price does not include GST. In addition to the Price, the Hirer must pay to the Owner an amount equal to any GST that the Owner must pay for the hire of the Equipment and/or services under this Agreement.

12.Compliance with Laws

The Hirer warrants that it shall comply with the provisions of all statutes, regulations and bylaws of government, local and other public authorities that may be applicable including obtaining all necessary approvals, permits and consents to operate the Equipment (at the expense of the Hirer).

13.Default and Consequences of Default

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 the Hirer’s sole discretion such interest shall compound monthly at such a rate) after as well as before any judgment.
If the Hirer owes the Owner any money, the Hirer shall indemnify the Owner from and against all costs and disbursements incurred by the Owner in recovering the debt (including but not limited to internal administration fees, legal costs of a solicitor on an indemnity basis).
Without prejudice to the Hirer’s other remedies at law, the Owner shall be entitled to cancel all or any part of any order of the Hirer which remains unfulfilled and all amounts owing to the Owner shall, whether or not due for payment, become immediately payable if:
1. any money payable to the Owner becomes overdue, or in the Hirer’s opinion the Hirer will be unable to make a payment when it falls due;
2. the Hirer has exceeded any applicable credit limit provided by the Owner;
3. the Hirer 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 Hirer or any asset of the Hirer.
If any money payable to the Owner becomes overdue, the Owner will issue a written demand for payment to the Hirer. If the Hirer fails to make payment within five (5) Business days, the Owner is entitled to cancel the Agreement and immediately take possession of the Equipment. The Hirer must give the Owner access to the Equipment when the Owner takes possession of the Equipment under this clause.

14.Limited Liability

To the extent permitted by law, the Owner is not liable to the Hirer for any loss or damage, whether direct, indirect, liquidated, special or consequential and including loss or damage arising as a result of death or personal injury, however caused (including negligence) which the Hirer or any other person may suffer or incur and which may, without limiting the generality of the foregoing, arise directly or indirectly in respect of the Equipment, any defects in the Equipment or in respect of any failure or omission by the Owner or any of its officers, agents or employees to comply with the Agreement or any obligation imposed by law.

15.Indemnity

The Hirer will indemnify and keep indemnified the Owner from and against all or any liability which the Owner may incur or become liable for, or in respect of loss, damage or injury to any person or property arising out of or in connection with the use of the Equipment, whether for negligence, breach of statutory duty, nuisance or otherwise.
The Hirer shall not allow any other party, organisation or body, under any circumstances, to use the Equipment without the written authority of the Owner. If it does so, the Hirer indemnifies the Owner against any loss or liability that results.
The Hirer shall ensure that its Operators are:
1. suitably qualified;
2. carry the necessary licenses/registrations to operate the Equipment; and
3. are not under the influence of alcohol or illicit drugs
4. If it fails to do so, the Hirer indemnifies OWNER against any loss or liability that results.

16.Personal Property Securities Act 2009 (Cth) (“PPSA”)

In this clause, the terms: financing statement, financing change statement, inventory, purchase money security interest, security agreement, and security interest all have the meaning given to it by the PPSA.
Upon assenting to these terms and conditions in writing the Hirer acknowledges and agrees that these terms and conditions constitute a security agreement for the purposes of the PPSA and creates and grants a security interest in all Goods and/or collateral (account) – being a monetary obligation of the Hirer to the Owner for Services – that have previously been supplied and that will be supplied in the future by the Owner to the Hirer.
The Hirer acknowledges the security is granted to secure the obligation to pay all amounts payable and to meet all obligations under this agreement (Indebtedness). The Hirer warrants that this Agreement does not relate to personal, domestic or household purposes.
Where the Goods and/or proceeds are not readily identifiable and/or traceable or their recoverable value is insufficient to pay the Indebtedness, the security interest shall also extend to all the Goods present and after acquired by the Customer, of which the Goods form part, to the extent required to secure the Indebtedness.
The Hirer 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 the Owner 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 (PPSR);
  2. register any other document required to be registered by the PPSA; or
  3. correct a defect in a statement referred to in clause 16(e)i(A)i(A) or 16(e)i(B);
2. indemnify, and upon demand reimburse, Owner 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 Goods charged thereby;
3. not register a financing change statement in respect of a security interest without the prior written consent of the Owner;
4. not register, or permit to be registered, a financing statement or a financing change statement in relation to the Goods and/or collateral (account) in favour of a third party without the prior written consent of the Owner;
5. immediately advise the Owner of any material change in its business practices of selling the Goods which would result in a change in the nature of proceeds derived from such sales.
The Hirer waives any right to receive notice in relation to any registration or amendment to a registration on the PPSR. At its own expense, the Hirer will provide all reasonable assistance and relevant information to enable us to register on the PPSR and generally to obtain, maintain, register and enforce the security interests created by this agreement.
Any payments received by the Owner from the Hirer shall be deemed to be made and applied by us in the following order (unless otherwise determined by the Owner): (1) to any obligation owed by the Hirer which is unsecured, in the order in which the obligations were incurred; (2) to any obligations that are secured, but not by a purchase money security interest (PMSI), in the order in which those obligations were incurred (3) to obligations that are secured by a PMSI, in the order in which those obligations were incurred.
Dealing with Collateral

The Hirer must not do, or agree to do, any of the following:

create or allow another interest (including, but not limited to, any security interest) in any Collateral; or
dispose, transfer, assign, or part with possession, of any Collateral.
deal in any way with any Security Agreement constituted by this Agreement, or allow any interest in such Security Agreement to arise or be varied;
lease or license the Equipment, or allow a surrender or variation of any lease or licence;
give control of the Equipment to another person other than the Owner;
part with possession of the Equipment other than by giving possession to the Owner (including but not limited to relocating the Equipment to property not owned by or in the sole control of the Hirer or the Owner);
change the nature of the Equipment;
allow a set-off or combination of accounts;
abandon, settle, compromise, or discontinue or become nonsuited in respect of any proceedings against any person (other than the Owner) in respect of any of the Hirer's rights in connection with the Equipment;
move any interest in the Equipment outside Australia; or
deal in any other way with the Equipment any interest in it, or allow any interest in it to arise or be varied.
The Owner may register under the PPSA any Security Interest created by this document in any manner considered appropriate by the Owner and the Hirer must provide the Owner in timely manner with all information, including Hirer details and serial numbers, required for such registration. The Hirer waives any right to receive notice in relation to any registration or amendment to a registration on the PPSR. At its own expense, the Hirer will provide all reasonable assistance and relevant information to enable us to register on the PPSR and generally to obtain, maintain, register and enforce the security interests created by this agreement.
The Hirer agrees to perfect and continuously maintain perfection of any Security Interest that itself forms part of the Equipment (including perfecting as a Purchase Money Security Interest) and do everything necessary to ensure that a third person cannot acquire an interest in any part of the Security Interest of the Owner.
The Hirer agrees to do anything the Owner reasonably asks the Hirer to do (such as obtaining consents, signing and producing documents, producing receipts and getting documents completed and signed) to provide more effective security over the Equipment for payment of the amount owing or performance of an obligation.
To the extent that Chapter 4 of the PPSA would otherwise apply to enforcement by the Owner of any Security Interest, the parties agree that the following provisions of the PPSA are excluded:
1. to the extent permitted by section 115 of the PPSA: sections 95, 96, 118, 121, 125, 130, 132, 135, 142 and 143 of the PPSA; and
2. to the extent permitted by section 115(7) of the PPSA: sections 127, 129(2)(3), 130(1), 132, 134(2), 135, 136 and 137.

17.Privacy Policy

The Hirer agrees for the Owner to obtain from a credit reporting body (CRB) a credit report containing personal credit information (e.g.name, address, D.O.B, e.t.c) or next of kin and other contact information (where applicable), previous credit applications, credit history) about the Hirer in relation to credit provided by the Owner.
The Hirer agrees that the Owner may exchange information about the Hirer with those credit providers and with related body corporates for the following purposes:
1. to assess an application by the Hirer; and/or
2. to notify other credit providers of a default by the Hirer; and/or
3. to exchange information with other credit providers as to the status of this credit account, where the Hirer is in default with other credit providers; and/or
4. to assess the creditworthiness of the Hirer including the Hirer’s repayment history in the preceding two (2) years.
The Hirer consents to the Owner being given a consumer credit report to collect overdue payment on commercial credit.
The Hirer agrees that personal credit information provided may be used and retained by the Owner for the following purposes (and for other agreed purposes or required by):
1. the hire of the Equipment; and/or
2. analysing, verifying and/or checking the Hirer’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 Hirer; and/or
4. enabling the collection of amounts outstanding in relation to the Equipment.
the Owner may give information about the Hirer to a CRB for the following purposes:

18.Miscellaneous

The Hirer agrees that the Hirer’s logos or notices shall not be obscured or removed from the Equipment.

19.General

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.
These terms and conditions and any Agreement to which they apply shall be governed by the laws of New South Wales, the state in which the Owner has its principal place of business, and are subject to the jurisdiction of the courts in that state.
The Owner shall be under no liability whatsoever to the Hirer for any indirect and/or consequential loss and/or expense (including loss of profit) suffered by the Hirer arising out of a breach by the Owner of these terms and conditions (alternatively Hirer’s liability shall be limited to damages which under no circumstances shall exceed the Price of the hire of Equipment).
The Owner may licence and/or assign all or any part of its rights and/or obligations under this Agreement without the Hirer’s consent.
The Hirer cannot licence or assign without the written approval of the Owner.
The Hirer agrees that the Owner may amend their operative provisions for subsequent future Agreements with the Hirer by disclosing such to the Hirer in writing. These changes shall be deemed to take effect from the date on which the Hirer accepts such changes, or otherwise at such time as the Hirer makes a further request for the Owner to provide hire of the Equipment to the Hirer.
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.
Both parties warrant that they have the power to enter into this Agreement and have obtained all necessary authorisations to allow them to do so, they are not insolvent and that this Agreement creates binding and valid legal obligations on them.

20.Notices

Any notices issued under this Agreement can be sent by email or post to the other party via the details in Schedule 1
A notice via email is deemed to be received two (2) hours after the time sent (as recorded on the device from which the sender sent the email), unless the sender receives an automated message that the email has not been delivered.
A notice via post is deemed to received 4 business days after the date sent, unless evidence of earlier service is provided.