Terms & Conditions
- Contract to Hire and Term
- This Hire Agreement is accepted by both Parties on the earlier of the Hirer agreeing to this Hire Agreement by signing the back of it, by the Hirer indicating its agreement on Empire’s website by ‘clicking’ or selecting the relevant link or confirmation of such acceptance, by Empire issuing a Hire Confirmation to the Hirer or the signed acceptance by the Hirer of the delivered Plant and Equipment.
- For the avoidance of doubt the Hirer also expressly agrees that, upon your receipt of this Hire Agreement, any instructions (oral or written or electronically transmitted) then received by Empire from Hirer for the provision of any of hire Plant and Equipment will constitute formation of an agreement between Empire and the hirer, and the Hirer’s acceptance of this Hire Agreement
- Unless otherwise stated in this Hire Agreement, the Hirer acknowledges and agrees that on each occasion that it issues a Purchase Order to Empire for the supply of Services, and Empire accepts that Purchase Order, a separate and binding contract is made in relation to the supply of those Services in accordance with the provisions of this Hire Agreement.
- Empire shall use reasonable efforts to make the Plant and Equipment available for the commencement of the Term but shall not be liable for any loss or damage due to delay.
- Where a minimum period of hire is specified in this Hire Agreement, the Hirer agrees to pay for such period irrespective of utilisation of the Plant and Equipment, Empire Personnel (in the case of a Wet Hire), completion of the Services or a Force Majeure Event.
- This Hire Agreement is accepted by both Parties on the earlier of the Hirer agreeing to this Hire Agreement by signing the back of it, by the Hirer indicating its agreement on Empire’s website by ‘clicking’ or selecting the relevant link or confirmation of such acceptance, by Empire issuing a Hire Confirmation to the Hirer or the signed acceptance by the Hirer of the delivered Plant and Equipment.
- Delivery and Risk
- If the Hirer has elected in this Hire Agreement for Empire to transport the Plant and Equipment from the Empire depot to the Hirer’s premises, risk will transfer to the Hirer at the time that the Plant and Equipment is delivered to the Hirer’s premises by Empire.
- If the Hirer has elected in this Hire Agreement to transport the Plant and Equipment to its premises itself, risk transfers to the Hirer from the time that possession of the Plant and Equipment is transferred to the Hirer, its employees, agents, contractors or subcontractors.
- Charges for Hire
- The Hirer will pay Empire for hire of the Plant and Equipment and Empire Personnel (in the case of a Wet Hire) at the rates agreed in the Schedule of Rates.
- In addition to the Schedule of Rates the following charges also apply:
- the Hirer shall pay for mobilisation and demobilisation when Empire is required to transport the Plant and Equipment to and from the Empire depot;
- rates in respect of Empire Personnel (in the case of a Wet Hire) are subject to additional charges for loadings, penalties and allowances as applicable to Empire Personnel pursuant to their terms of engagement including night shifts, weekends, standby, overtime, public holidays, meals, travel and accommodation;
- where the Plant and Equipment supplied by Empire is used by Hirer to Excess, Empire reserves the right to impose additional hire charges as reasonable compensation to Empire. “Excess” is more than 10 hours per calendar day; and
- where applicable, fuel levy, administration levy and Limited Damage Waiver fee as disclosed to Hirer.
- The charges in clauses 3.1 and 3.2 are referred to in this Hire Agreement as the “Hire Charges”.
- The Schedule of Rates quoted in this Hire Agreement are exclusive of GST, government duties, taxes and charges.
- The Schedule of Rates are subject to change at Empire’s discretion. The Hirer may terminate this Hire Agreement without penalty by written notice to Empire if the revised Schedule of Rates are unacceptable. Subject to this clause, the revised Schedule of Rates apply from the date of advice to the Hirer.
- If a supply under this Hire Agreement is subject to GST, the recipient of the supply (Hirer) must pay to the supplier (Empire) at the same time and in the same manner as the consideration is otherwise payable, an amount equal to the amount of consideration multiplied by the applicable GST rate, subject to the supply of a valid tax invoice by the supplier (Empire).
- Empire may invoice the Hirer by providing a tax invoice at the completion of the Term or at the end of each calendar month, whichever is the earlier. Empire reserves the right to not enter into any recipient created tax invoice arrangements with the Hirer.
- The Hirer agrees to pay each tax invoice in full within 14 days of the tax invoice date. No claims for credit will be recognised by Empire after 7 days following the date of the tax invoice.
- The Hirer shall not set-off any amounts due under the tax invoice in respect of a request for credit or other disputed amount.
- If either Party is required to indemnify or reimburse a part of a cost, expense or liability (“Expense”) incurred by the other, then the Expense shall be reduced by the credit or refund of GST to which the Party which first incurred the Expense is entitled to claim in respect of the Expense.
- Empire reserves the right to charge interest to the Hirer on amounts which remain unpaid after the due date for payment. Interest will be calculated at 2.0% per month or part thereof on the unpaid amount, compounded daily. Without limiting the above, the Hirer hereby indemnifies Empire for all costs and expenses (including commissions payable to commercial or mercantile agents, legal costs and filing fees) incurred by Empire in recovering amounts which remain unpaid after the due date.
- As security for the Hirer’s obligations and liabilities under this Hire Agreement:
- the Hirer hereby charges for the due and punctual payment and performance of those obligations and liabilities, all of its legal and equitable interest (both present and future) of whatsoever nature held in any and all real and personal property;
- without limiting the generality of the charge in this clause, the Hirer agrees, on Empire’s request, to execute any documents and do all things necessary required by Empire to register a mortgage, security interest or other instrument of charge over any real property or personal property or both and against the event the Hirer fails to do so within a reasonable time of being so requested, the Hirer irrevocably and by way of security, appoint any credit manager or solicitor engaged by Empire to be the Hirer’s true and lawful attorney to execute and register such instruments; and
- the Hirer will indemnify Empire on an indemnity basis against all costs and expenses incurred by Empire in connection with the preparation and registration of any such security interest, charge or mortgage document.
- Breakdown of Plant and Equipment
- In the event of a Breakdown to Plant and Equipment, the Hirer shall immediately notify Empire. If Empire Personnel are present, advising such Empire Personnel shall be considered sufficient notice.
- Upon notifying Empire of a Breakdown, the Hirer must secure and safeguard the Plant and Equipment, comply with all Relevant Laws, cease using the Plant and/or Equipment in any way and take all reasonable steps to prevent injury to any persons or damage to any property as a result of the condition of the Plant and Equipment. Empire does not accept liability for expenses incurred in such prevention or safeguarding activities. The Hirer remains responsible for the security of the Plant and Equipment until such time as the Plant and Equipment is returned to Empire’s physical possession or depot.
- From the date on which Hirer gives the notice in clause 4.1 and subject to clause 4.4, the Hire Charges shall be suspended in full until the Plant and Equipment is replaced (at Empire’s election) or returned to operating condition.
- If the Hirer, its employees, agents, contractors or subcontractors materially contributed to or caused the Breakdown (including by directions given to Empire Personnel) through the misuse of the Plant and Equipment accident, negligence, fraud, misconduct, breach of this Hire Agreement, failure to comply with Relevant Laws, failure to observe warning signs or directions, failure to observe safety systems or OEM operational procedures, then the Hirer will continue to pay the Hire Charges until the Plant and Equipment is fit for return to service and in addition shall pay the reasonable costs of repair incurred by Empire or its appointed agent.
- Under no circumstances shall the Hirer commence any works to repair the Plant and Equipment without the written consent of Empire.
- Empire shall without delay take all reasonable steps to replace the Plant and Equipment the subject of the Breakdown with Plant and Equipment of a similar type or capacity but is under no obligation to do so.
- Empire shall not be liable for any direct, indirect or consequential costs, losses or damages suffered by Hirer or third parties in relation to a Breakdown.
- Safety and Operations
Laws and Safety Standards
- The Hirer must ensure that all Relevant Laws and safety standards relating to the safe use and handling of the Plant and Equipment, are complied with during the Term and that the Plant and Equipment during the Term does not place the public, the community or the environment at risk of death, injury, illness or damage.
- The Hirer agrees to the following:
- Empire Personnel (in the case of a Wet Hire) shall work under the direction of the Hirer who must consult with and fully brief the Empire Personnel on the proposed task, the site, site conditions, matters affecting the health and safety of the personnel in respect of the task to be performed and other relevant matters including information requested by the Empire Personnel. The Hirer accepts that Empire Personnel may require further information or clarification to complete tasks to be performed, or a lift study prior to commencing the task and may refuse to operate the Plant and Equipment if they believe any directions or control requested by the Hirer may affect the safety of people, property, Plant or Equipment.
- If the hire is a Wet Hire, the Hirer will not allow any person other than Empire Personnel to operate the Plant and Equipment without the prior written consent of Empire.
- If the hire is a Dry Hire, the Hirer will ensure that its personnel who operate the Plant and Equipment are qualified and trained personnel who possess current licenses to operate the Plant and Equipment, vehicle orientation and familiarity.
- The Hirer shall do all things reasonably practicable to ensure its employees, Empire Personnel (in the case of a Wet Hire) and other persons working under its direction or control shall:
- take active steps including review of operating manuals to ensure they are familiar with the safe operation and operating parameters of the Plant and Equipment;
- be fit for duty and not under the influence of drugs or alcohol;
- be appropriately briefed by Hirer as to the site, safe work systems, control / restricted zones and any applicable lift plans or studies;
- wear suitable protective and high visibility clothing when working with, on or around the Plant and Equipment, and
- operate the Plant and Equipment to a standard of skill, knowledge and competence of an experienced and professional operator of the assigned tasks in compliance with all Relevant Laws.
- The Hirer must obtain and furnish any necessary permits, consents, approvals or notices required for the use or transport of the Plant and Equipment during the Term and comply with any Relevant Laws and industry standards or protocols whilst in possession of the Plant and Equipment.
- The Hirer shall pay all fines and penalties incurred while the Plant and Equipment is in the possession of the Hirer.
- The Hirer will consult and co-operate with Empire in respect of matters relating to the safe use and handling of the Plant and Equipment.
- The Hirer must immediately notify Empire of any incident, near miss, safety breach, fine, penalty or investigation by a regulator during the Term which involves the Hirer, its agents, Empire Personnel or the Plant and Equipment.
- Empire agrees to the following:
- Empire will ensure that the Empire Personnel who operate the Plant and Equipment are qualified and trained personnel who possess current licenses to operate the Plant and Equipment, vehicle orientation and familiarity.
- Empire shall do all things reasonably practicable to ensure its employees, contractors and persons working under its direction or controls shall:
- take active steps including review of operating manuals to ensure they are familiar with the safe operation and operating parameters of the Plant and Equipment;
- be fit for duty and not under the influence of drugs or alcohol;
- be appropriately briefed by the Hirer as to the site, safe work systems, control/restricted zones and any applicable lift plans or studies;
- wear suitable protective and high visibility clothing when working with, on or around the Plant and Equipment; and
- operate the Plant and Equipment to a standard of skill, knowledge and competence of an experienced and professional operator of the assigned tasks in compliance with all Relevant Laws.
- Maintenance, Safekeeping and Return
- Empire is responsible for and must complete regular maintenance and servicing of the Plant and Equipment in accordance with OEM maintenance manuals including to clean, maintain, lubricate and fuel the Plant and Equipment to the standard and level specified in the manual or as otherwise specified by Empire and record such checks in the log book provided.
- The Hirer agrees to the following:
- The Hirer shall secure and protect the Plant and Equipment throughout the Term. The Hirer will not part with possession, remove or allow the Plant and Equipment to be removed from the location stated in Hire Agreement without Empire’s written approval.
- The Hirer shall indemnify and hold harmless Empire against all costs, losses or liabilities due to damage, loss or incident relating to the Plant and Equipment during the Term including the Hirer’s breach of Hire Agreement, loss of possession, theft, vandalism, negligence, legal process or otherwise except to the extent that the Limited Damage Waiver limits such liability.
- The Hirer will permit and grant access to Empire to any location or premises where the Plant and Equipment is located for the purposes of periodic inspection of the Plant and Equipment by Empire or for audit purposes and the Hirer will indemnify Empire in respect of any claims, damages or expenses arising out of any action taken pursuant to this condition.
- Hazardous Materials
- If during the Term the Hirer wishes to use the Plant and Equipment to lift or transport materials that are noxious, inflammable, hazardous, dangerous or explosive in nature (Hazardous Materials) the Hirer acknowledges and agrees that it must comply with all Relevant Laws applicable to the Hazardous Materials and their lifting or transportation at all times during the Term.
- Empire’s obligations
- Empire will use its best endeavours to ensure that the Plant and Equipment is in good working order at the commencement of the Term and is promptly delivered or supplied to the Hirer in accordance with this Hire Agreement.
- Empire will perform the Services where specified in this Hire Agreement to the standard of skill and care of an experienced and professional operator of the assigned tasks in compliance with Relevant Laws and industry standards.
- Termination
- Empire may terminate this Hire Agreement without reason or for its convenience upon 24 hours’ advance notice to the Hirer.
- Empire may terminate this Hire Agreement without notice if the Hirer:
- commits a breach of this Hire Agreement;
- permits any act or thing to be done which may prejudice, diminish or alienate Empire’s rights to or in the Plant and Equipment;
- commits an act of bankruptcy;
- becomes insolvent or is unable to pay its debts when they fall due;
- enters into voluntary liquidation, provisional liquidation, administration or receivership;
- has a winding up petition presented against it;
- has any of its property seized by a secured creditor or any secured creditor takes steps to enforce its rights;
- ceases to be carrying on business or substantially changes its business activities, or
- suffers a change of management or voting control without prior Empire approval.
- On termination of this Hire Agreement, Empire is entitled to immediate possession of the Plant and Equipment and where such possession is not obtained, the Hirer irrevocably appoints Empire as its agent and authorised attorney to enter upon any land or premises on behalf of the Hirer to recover the Plant and Equipment and agrees to indemnify Empire in respect of any claims, damages or expenses arising out of any action taken under this condition.
- Liability, Indemnity, Insurance and Limited Damage Waiver
- The Parties must effect and maintain at all times insurance covering their statutory workers compensation, product and public liability, professional indemnity and motor vehicles in each instance for the greater of the amount required by any Relevant Law or not less than $20,000,000 per occurrence or event. Except where the Limited Damage Waiver applies, the Hirer must also effect and maintain at all times insurance covering the Plant and Equipment to fair market value.
- Product and Public Liability and Plant and Equipment Insurances so held by the Hirer must note Empire as an insured party with the full right of entitlement to claim under the insurance and the insurer shall waive all rights of subrogation against Empire and Empire insurers. The deductible or excess payable in respect of a claim shall be at the Hirer’s cost. On request, the Hirer shall provide Empire with certificates of currency in respect of all required insurance under this Hire Agreement.
- Empire is not a “common carrier” and is not responsible for any loss or damage to the Hirer’s property or goods in transit. Responsibility and risk for insurance of goods in transit rests with the Hirer.
- The Hirer assumes liability for and indemnifies and holds harmless Empire, its agents and employees from and against all claims, costs, damages, losses or expenses of any kind howsoever arising under tort (including but not limited to negligence), contract, strict liability, statute or otherwise from the arrangements between the Hirer and Empire and including (without limitation) in relation to death of or injury to any person, loss, damage or destruction of any property including the Plant and Equipment and goods in transit. This indemnity shall not include the Plant and Equipment to the extent that the Limited Damage Waiver applies.
- To the full extent permitted by law the Hirer releases, holds harmless and discharges Empire, its agents and employees in respect of all claims and demands on Empire and any loss or damage caused to the Hirer or its hirers, agents, employees or other third parties, whether by death of or injury to any person, accident, loss or damage to property, delay, financial loss or otherwise.
- To the full extent permitted by law, Empire makes no express warranty or condition and excludes all implied warranties and conditions of any type including as to the fitness of the Plant and Equipment for any use to which it is employed by the Hirer.
- In the event of the Hirer suffering any damage or loss arising from this Hire Agreement including without limitation in respect of delay or inconvenience following a Breakdown, failure or defect in the Plant and Equipment, the liability of Empire is limited to taking all reasonable steps to facilitate the repair or replacement of the Plant and Equipment and does not include any economic, indirect or consequential losses, damages or liabilities of any nature whatsoever.
- Notwithstanding any other provision of this Hire Agreement, neither Empire nor the Hirer shall be liable for any indirect, economic or consequential losses.
- EXCLUSIONS: The Limited Damage Waiver shall not apply to the following Plant and Equipment or circumstances:
- loaders of any size, type or specification;
- while being loaded/unloaded or in transit on a transport vehicle engaged by the Hirer;
- a Breakdown event where clause 4.4 applies;
- damage or breakage to tyres, glass and accessories (including accidental damage or breakage);
- if it exceeds the rated load or carrying capacity;
- if the Plant and Equipment is operated or traverses over water, bridge or wharf;
- damage caused by exposure to corrosive substances including caustic, hazardous or toxic materials, cyanide, water or acid and damage caused by paint or other overspray; or
- to the extent that the Hirer or its personnel, agents or contractors have contributed to the loss, damage or destruction by their negligence, wilful misconduct, theft or fraud.
- The liabilities, indemnities, insurances and limitations of liability rights and obligations contained in this clause 10 remain in full force and effect notwithstanding termination of this Hire Agreement.
- Force Majeure
- A Force Majeure Event is an event which is beyond the reasonable control of the Hirer or Empire and includes but is not limited to the following types of events:
- an act of God;
- war or other state of armed hostilities, insurrection, riot, civil commotion, act of public enemies, acts of terrorism, national emergency (whether in fact or in law) or martial law;
- weather sufficiently inclement to prevent the Hirer or Empire from performing an obligation under this Hire Agreement;
- fire, earthquake, lightning or explosions;
- strikes, lock outs, slowdowns, stoppages and restraints of labour;
- lawful restraints;
- prolonged energy shortages or embargoes;
- changes in law; and
- action or inaction by, or orders, judgments, rulings, decisions or enforcement actions of, any government, governmental authority or court of competent jurisdiction whether local, State or Federal (including denial, refusal or failure to grant any permit, authorisation, licence, approval or acknowledgment despite timely endeavours to obtain same).
- Where either the Hirer or Empire can no longer perform their obligations under this Hire Agreement by virtue of a Force Majeure Event, they shall immediately notify the other Party of the Force Majeure Event and shall be temporarily relieved of their respective obligations under this Hire Agreement whilst the Force Majeure Event continues. Regardless of such relief, the Party making the notification of the Force Majeure Event shall do everything within its power to minimise the duration of the Force Majeure Event and shall notify the other Party immediately upon cessation of the circumstances relating to the Force Majeure Event.
- Without limiting Empire’s rights under clause 9, if the Force Majeure Event continues for a period in excess of fourteen (14) calendar days, the Hirer or Empire may terminate this Hire Agreement at their discretion without penalty.
- Notwithstanding any Force Majeure Event, no Party is relieved or excused from performance of its obligation to pay amounts due to the other under this Hire Agreement.
- A Force Majeure Event is an event which is beyond the reasonable control of the Hirer or Empire and includes but is not limited to the following types of events:
- Right to Assign and to Subcontract
- Empire may assign or subcontract the performance of all or any of Empire’s rights and obligations under this Hire Agreement with any other person or company and such person or company and its servants and agents shall be the beneficiary of these General Conditions to the same extent as Empire.
- The Hirer shall not assign, subcontract, sub-lease or sub-hire the performance of all or any of the Hirer’s rights and obligations under this Hire Agreement unless it has obtained the prior written consent of Empire to do so.
- Title to Plant and Equipment
- The rights of the Hirer to use and take possession of the Plant and Equipment are as bailee only.
- The Hirer shall not offer, sell, assign, sub-let, pledge, mortgage or otherwise deal with or part with possession of the Plant and Equipment in any way which is inconsistent with the rights of Empire as owner of the Plant and Equipment, whether or not Empire is owner, lessee, hirer or otherwise of the Plant and Equipment. The Hirer shall not deface or cover any name or registration plate on the Plant and Equipment.
- The Hire Agreement may create a registerable security interest under the PPSA in the Plant and Equipment and any proceeds. Neither Party has agreed to postpone the time for attachment of the security interest. The Hirer agrees that value has been given for the creation of the security interest.
- Where Empire has other enforcement rights in addition to the enforcement rights provided for in the PPSA, those other enforcement rights will continue to apply.
- The Hirer must ensure that any security interest created is enforceable, that Empire’s priority is preserved and any defect in the security interest, including registration on the PPSR, is overcome, including by promptly executing any documents and do anything reasonably required by Empire.
- The Hirer must not, without Empire’s written consent, sell, lease, dispose of, create a security interest in, mortgage or part with possession of the Plant and Equipment or any interest in it (or purport or attempt to purport to do such thing) or permit any lien over it. The Hirer may only disclose information or documents, including information of a kind referred to in section 275(1) of the PPSA, if Empire has given its prior written consent.
- To the extent that the PPSA permits, the Hirer waives its rights to receive a copy of any verification statement or financing change statement, any notice required under the PPSA, and its rights under sections 95, 96, 117, 118, 120, 121(4), 123, 125, 126, 128, 129, 130, 135, 142 and 143 of the PPSA.
- Miscellaneous
- The person signing this Hire Agreement for and on behalf of the Hirer warrants to Empire that such person has the authority of the Hirer to enter this Hire Agreement.
- The Parties to this Hire Agreement are independent contractors and nothing shall imply that they are in partnership, agency or legal representatives of the other except where expressly stated to the contrary.
- Empire reserves the right to revise this Hire Agreement and any such revision shall then be communicated and distributed to the Hirer in writing. The Hirer agrees that it shall from the date of receipt of such communication be legally bound by such revised terms and its sole remedy in the event it does not accept the terms shall be to give Empire immediate notice to terminate this Hire Agreement without penalty, or any claim for loss or damages.
- All notices which are required to be given under this Agreement shall be in writing and shall be delivered personally, sent by prepaid express post (or the highest priority post if sent from outside Australia) or by email to the party concerned at its last known physical, postal or email address, or facsimile number, as the case may be.
- Notices:
- delivered personally shall be deemed to have been served when delivered, or on the next Business Day if the notice was delivered:
- after 5pm on a Business Day; or
- on a day that is not a Business Day;
- sent by express post shall be deemed to have been served 48 hours after dispatch (7 days if sent from outside Australia); and
- sent by email or facsimile shall be deemed to have been served on the date the email or facsimile was sent, or on the next Business Day if the email or facsimile was sent:
- after 5pm on a Business Day; or
- on a day that is not a Business Day..
- The terms and existence of this Hire Agreement and information obtained by one Party from the other Party during the performance of this Hire Agreement are confidential and shall not be disclosed to any third party except where required by law, stock exchange or regulator to do so. The Hirer shall not make public announcements or respond to media requests in relation to the subject matter of this Hire Agreement without the written consent of Empire.
- delivered personally shall be deemed to have been served when delivered, or on the next Business Day if the notice was delivered:
- Waiver and Severability
- If Empire fails to or delays in exercising any right, power or remedy which it is entitled to under this Hire Agreement, such failure does not amount to a waiver of that right, power or remedy nor does it preclude any further exercise of such rights, powers or remedies as may be provided under this Hire Agreement.
- Any waiver by Empire must be in writing signed by Empire and is only effective in relation to the particular obligation or breach in which it is given.
- If any provision of this Hire Agreement is invalid or unenforceable in accordance with its terms in any jurisdiction, it is to be read down for the purposes of that jurisdiction, if possible, so as to be valid and enforceable and will otherwise be capable of being severed to the extent of the invalidity or unenforceability without effecting the remaining provisions of this Hire Agreement or effecting the validity or enforceability of that provision in any other jurisdiction.
- Governing Law and Disputes
- The Hire Agreement is governed and construed by the laws of the State of Western Australia, Australia. All disputes shall be subject to the non-exclusive jurisdiction of the courts of that State.
- Privacy Act 1988
- The Hirer agrees for Empire to obtain from trade references and credit reporting agencies a relevant credit report containing personal credit information about the Hirer in relation to credit provided by Empire.
- The Hirer agrees that Empire may exchange information about the Hirer with those credit providers either named as trade referees by the Hirer or named in a consumer credit report issued by a credit reporting agency for the following purposes:
- to assess an application by the Hirer; and/or
- to notify other credit providers of a default by the Hirer; and/or
- 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
- to assess the creditworthiness of the Hirer.
- The Hirer understands that the information exchanged can include anything about the Hirer’s creditworthiness, credit standing, credit history or credit capacity that credit providers are allowed to exchange under the Privacy Act 1988.
- The Hirer consents to Empire being given a consumer credit report to collect overdue payment on commercial credit (Section 18K(1)(h) Privacy Act 1988).
- The Hirer agrees that personal credit information provided may be used and retained by Empire for the following purposes (and for other purposes as shall be agreed between the Hirer and Empire or required by law from time to time):
- the provision of Services/Equipment; and/or
- the marketing of Services/Equipment by Empire or its distributors; and/or
- analysing, verifying and/or checking the Hirer’s credit, payment and/or status in relation to the provision of Services/Equipment; and/or
- processing of any payment instructions, direct debit facilities and/or credit facilities requested by the Hirer; and/or
- enabling the daily operation of Hirer’s account and/or the collection of amounts outstanding in the Hirer’s account in relation to the Services.
- Empire may give information about the Hirer to a credit reporting agency for the following purposes:
- to obtain a consumer credit report about the Hirer; and
- to allow the credit reporting agency to create or maintain a credit information file containing information about the Hirer.
- The information given to the credit reporting agency may include:
- personal particulars (the Hirer’s name, sex, address, previous addresses, date of birth, name of employer and driver’s licence number);
- details concerning the Hirer’s application for credit or commercial credit and the amount requested;
- advice that Empire is a current credit provider to the Hirer;
- advice of any overdue accounts, loan repayments, and/or any outstanding monies owing which are overdue by more than sixty (60) days, and for which debt
- collection action has been started;
- that the Hirer’s overdue accounts, loan repayments and/or any outstanding monies are no longer overdue in respect of any default that has been listed;
- information that, in the opinion of Empire, the Hirer has committed a serious credit infringement (that is, fraudulently or shown an intention not to comply with the Hirer’s credit obligations);
- advice that cheques drawn by the Hirer for one hundred dollars ($100) or more, have been dishonoured more than once; and
- that credit provided to the Hirer by Empire has been paid or otherwise discharged.
- Definitions
“Breakdown” includes breakdown, damage, full or partial loss, loss of use, seizure or impoundment by operation of law or otherwise.
“Dry Hire” means the hire of fully maintained Plant and Equipment but excludes any Empire Personnel to operate such Plant and Equipment.
“Empire” is IRLAM Holdings Pty Ltd (ACN 627 794 870) as trustee for the IRLAM Unit Trust (ABN 50 609 286 224) trading as “Empire Equipment Hire”, and any subsidiaries and permitted assigns.
“Empire Personnel” means the person or persons employed or engaged by Empire to drive, operate, use or transport the Plant and Equipment provided to the Hirer as specified under this Hire Agreement and may include operators, riggers, dogmen, supervisors, drivers and any such other employee or agent of Empire.
“Force Majeure Event” has the meaning given to it under clause 11 of these General Conditions.
“General Conditions” means the terms and conditions set out in this document, as amended from time to time.
“GST” has the meaning given to it in A New Tax System (Goods and Services Tax) Act 1999 (Cth).
“Hire Agreement” means the conditions set out in these terms and conditions in conjunction with any Special Conditions, quotation, Purchase Order, appendix, schedule annexure or other document agreed in writing between both Parties.
“Hire Confirmation” means the form issued by Empire at the time a Purchase Order is submitted to Empire and includes job details, Plant and Equipment and other details.
“Hirer” is the person, firm, company, government instrumentality, entity or corporation (including any personal representatives or permitted assigns of such) that engages Empire for the purpose of hiring Plant and Equipment, with or without Empire Personnel.
“Limited Damage Waiver” has the meaning given in clause 10.9 of this Hire Agreement.
“OEM” means the original equipment manufacturer or its representative or equivalent.
“OHS laws” means the occupational health and safety legislation (howsoever named) and regulations, codes or practice and standards of safety that apply in the State or Territory in which the Hirer and Empire operate.
“Parties” includes both the Hirer and Empire.
“Plant and Equipment” is all plant and equipment described in this Hire Agreement together with such accessories, machinery, tools and associated items, manuals, log books and Empire vehicles as accompanies such plant and equipment when it is dispatched from the Empire depot.
“PPSA” means the Personal Property Securities Act 2009 (Cth) as amended from time to time.
“PPSR” means the Personal Property Securities Register established under the PPSA.
“Purchase Order” means any order in writing by or on behalf of the Hirer for the supply of Services by Empire and each schedule or document accompanying such Purchase Order.
“Relevant Laws” means the applicable laws, codes, authorisations or rules in the relevant jurisdiction including any law or legal requirement under equity, statute, regulation, ordinance or by-law whether commonwealth, territorial, state or local and includes the OHS laws.
“Schedule of Rates” has the meaning given to it in clause 3 and as specified in the schedule annexed to this Hire Agreement.
“Services” means the functions or task specific outcomes which Empire has agreed to provide under this Hire Agreement using the Plant and Equipment and / or Empire Personnel as detailed in each Purchase Order.
“Special Conditions” are specific amendments, additions or deletions to this Hire Agreement, as agreed in writing by both Parties.
“Term” means the period of supplying the Services as detailed in the Purchase Order and which may include weekends and / or public Holidays within the Jurisdiction, and continues until the supply of the Services is completed or this Hire Agreement is terminated as specified in herein.
“Wet Hire” means the hire of fully maintained Plant and Equipment combined with stated Empire Personnel to operate such Plant and Equipment.
- Interpretation
- In this Hire Agreement, unless the context otherwise states or requires:
- any words importing the singular include the plural and vice versa;
- capitalised words are defined terms and shall have their defined meaning;
- a reference to a “Party” or “Parties” shall mean a party or parties to this Hire Agreement;
- any reference to gender includes the other gender;
- an obligation of two (2) or more Parties binds them jointly and severally;
- a reference to a person includes the legal representatives, employees, successors, and assignees of that person;
- a reference to a statute, ordinance, code or other law includes regulations and other statutory instruments under it, consolidations, amendments, re-enactments or replacements of any of them made by any legislative authority;
- a reference to $ or dollars means Australian Dollars;
- this Hire Agreement shall constitute the entire agreement between the Parties and supersedes all previous agreements, understanding, representations and negotiations; and
- to the extent of any inconsistency between documents forming this Hire Agreement, precedence of contract shall be determined in the following order of priority:
- Special Conditions,
- these terms and conditions
- Purchase Order,
- Quotation,
- Any other document signed by both Parties,
- In this Hire Agreement, unless the context otherwise states or requires: