Definitions and Interpretation
In the Agreement:
Agreement means the agreement made between VB and the Hirer comprising the Hire Specifics, the Hire Quote and these Terms and Conditions.
VB means Vertical Build Pty Ltd ABN 62 154 769 249.
Business Hours are 8.00am to 5.00pm on a day that is not a Saturday, Sunday, public holiday or bank holiday in Perth, Western Australia.
Commencement Date means the date of the initial dispatch of Equipment to the Hirer.
Consumables means the consumables detailed in the Hire Quote.
Equipment means the Titan Hoarding System equipment hired by the Hirer from VB pursuant to the Agreement but excludes the Consumables.
GST means the A New Tax System (Goods and Services Tax) Act 1999 (Cth).
Hirer means the person, company or other legal entity hiring the Equipment from VB. Where the context permits, it includes Hirer’s employees and contractors.
Hire Period comprises the interval between the Commencement Date and the date agreed in the Hire Quote as the final day of the hire or such extended date as agreed in writing by the parties.
Hire Quote means the hire quote provided to the Hirer by VB and accepted by the Hirer’s signed acceptance.
Hire Specifics means the hire specifics attached to the Hire Quote.
Payment means payment by the Hirer to VB of the amount specified in the Hire Quote.
PPSA means the Personal Property Securities Act 2009 (Cth) as amended and any replacement or successor legislation.
Trade Marks means any trade mark in respect of the Equipment from time to time.
- VB shall let and the Hirer shall take on hire the Equipment. If the Hirer wishes to hire Equipment, the Hirer must sign the Hire Quote, or any other form reasonably required by VB and notified to the Hirer from time to time.
- The Hire Quote shall not constitute a separate hire agreement but shall be read together with and form part of this Agreement incorporating all of the provisions of this Agreement.
- The Agreement embodies the entire agreement between VB and the Hirer. VB will not be bound by, or liable for, any statement, representation, promise, or understanding that is not set forth in the Agreement. The Agreement supersedes all other writings and oral communications, and nothing contained in proposals, correspondence, discussions, order acknowledgements, or other of the Hirer’s forms has any effect on the Agreement unless specifically incorporated in writing in the Agreement The Agreement further supersedes any correspondence, statements, promises, understandings, representations or courses of conduct inconsistent with the provisions of the Agreement. Any modification to the Agreement must be in writing signed by both the Hirer and VB.
- By signing the Hire Quote, the Hirer acknowledges that the Hirer has had sufficient opportunity to read the Agreement and agrees to be bound by it.
- VB has the right to insist upon the Hirer’s strict adherence with the Agreement at any time despite any previous failure or delay by VB to insist upon strict adherence with the Agreement. Any failure or delay by VB at any time to insist upon strict performance of the Agreement by the Hirer and VB’s enforcement of VB’s rights and remedies thereunder shall not release the Hirer from its obligations under the Agreement or constitute a waiver of any right of VB.
- The Hirer must pay VB the hire charges and the damage waiver fee specified in the Hire Quote for the Equipment for the Hire Period including any applicable GST, stamp duty or other duties, tolls, fines, penalties, levies or freight and other charges relevant to this Agreement and the hire.
- The Payment must be paid by the Hirer to VB prior to or on the Commencement Date of the Hire Period. If the Hirer does not pay the Hirer’s account on the account terms agreed the Hirer will be required to pay a 1.5% per month service charge on the past due balance until the Payment is made.
- The Payment must be paid in the manner, to the account and in the amount specified in the Hire Quote. The Hirer acknowledges that not receiving an invoice from VB will not relieve its liability to make Payment.
- The Hirer acknowledges that it cannot claim a reduction in the Payment for returning the Equipment prior to the end of the Hire Period.
- The Hirer will be liable for all costs and expenses arising directly or indirectly from any breach by the Hirer of the Agreement.
- The Hirer accepts that VB will outsource debt recovery at the Hirer’s expense in the event that the Hirer fails to make timely Payment.
Hire Of Equipment
- The hiring of Equipment by VB to the Hirer under this Agreement will commence on and from the Commencement Date and may continue until this Agreement is terminated.
- The Hirer is entitled to use the Equipment for the Hire Period. However, the Equipment must be used strictly in accordance with VB’s instructions and industry best practices.
- Any extension of the Hire Period must first be agreed to in writing by VB.
- Unless pick up details are specified in the Hire Quote the Hirer must return the Equipment to the address of VB on or before the end of the Hire Period as detailed in the Hire Quote. Failure to do so by the end of the Hire Period can be regarded as theft of the Equipment and will incur further charges.
Delivery and Return of Equipment
- The Hirer may retain VB in the capacity of an agent to deliver the Equipment.
- The charges for delivery will be detailed in the Hire Quote. VB may charge additional fees in fifteen-minute increments, at the rate specified in the Hire Quote, for incurring unanticipated delays and failed deliveries.
- Upon request by the Hirer VB will issue the Hirer with an “off hire” number (which the Hirer must retain) once the Equipment has been returned or VB has been requested by the Hirer to collect the Equipment. Subject to clause 5.4 the issue of an off hire number will confirm the expiration of the Hire Period.
- Where any action or inaction by the Hirer delays, hinders or precludes collection or return of the Equipment to VB the issue of an ‘off hire’ number will not confirm the expiration of the Hire Period and end the Hirer’s liability for rendering Payment. Any delay in collection caused or contributed to by the Hirer will be deemed to be an extension to the Agreement and will be charged and invoiced to the Hirer in the manner provided in clause 8.3 of the Hire Specifics.
- The Hirer is liable for all damages, losses, costs, and expenses that may arise directly or indirectly out of VB’s agency agreement with the Hirer with respect to delivery of the Equipment.
Receipt of Equipment
- The Hirer must upon receipt of the Equipment determine that the Equipment corresponds in all respects with the Hire Quote.
- The Hirer must notify VB upon delivery if the Equipment does not so correspond in all respects with the Hire Quote.
Use of the Equipment
- The Hirer acknowledges that the use of the Equipment carries with it dangers and risks of injury and the Hirer agrees to accept all dangers and risks.
- The Hirer must maintain the Equipment in good condition and must not, without VB’s prior written consent, alter, make additions or deface the Equipment or any of its logos or such other of its marks, numbers or identifying particulars.
- The Equipment shall not be used by anyone other than the Hirer and the Hirer’s authorised personnel without the express written consent of VB.
- The Hirer will only install and use the Equipment in accordance with the design requirements and the installation instructions notified from time to time to the Hirer by VB.
- The Hirer will ensure that all persons using, erecting, dismantling or moving the Equipment are instructed in its safe and proper use, erection, dismantling or movement and, where required by applicable regulatory requirements, hold valid proof of current training or are currently fully licenced and insured to use, erect, dismantle and move the Equipment as the case may be.
- The Hirer must use, maintain, store and transport the Equipment in a proper manner and where required strictly in accordance with any instruction provided by VB and with due care and diligence.
- The Hirer agrees that the Equipment will only be used for its intended purpose and in accordance with any VB instructions and recommendations in regard to use, erection, dismantling, movement, maintenance or storage.
- The Hirer must comply with all applicable health and safety laws and regulations in addition to all relevant industry best practice, custom and standards relating to the use of the Equipment and associated operations.
- The Hirer must ensure the Equipment is returned to VB in good order and condition, clean of all foreign matter failing which the Hirer must indemnify VB in respect of the cost of any repair or cleaning.
Damage to Equipment
- If Equipment is returned or collected in a condition which in the reasonable opinion of VB renders it unusable for hire, or if Equipment is stolen or missing, the Hirer must pay VB on demand the cost of replacement or repair of the Equipment.
- The Hirer will be liable for all costs, expenses, damages and losses both direct and indirect arising from the Hirer’s failure to collect or return the Equipment as specified in the Hire Quote, including where there has been theft of the Equipment.
- The Hirer acknowledges that all liability in respect of the Equipment continues during the “off hire” period while VB arranges collection of the Equipment at its reasonable convenience.
- Upon payment by the Hirer of the damage waiver fee detailed in the Hire Quote the Hirer will not be responsible for any accidental damage to the Equipment occurring during the Hire Period.
- The Hirer must immediately upon demand pay VB the amount of any excess that is charged to VB in respect of damage waiver.
- This clause in no way entitles the Hirer to, or implies the availability of, compensation from VB for any liability incurred by the Hirer in relation to the use of the Equipment.
- This clause will not continue to operate after the expiration of the Hire Period unless an extension by VB is granted in writing and an additional agreed fee is paid by the Hirer to VB.
- This clause will not apply to loss or damage which relates to or arises from:
- Hirer’s non-adherence to normal maintenance requirements that could reasonably be expected of the Hirer under the Agreement;
- Hirer’s neglect, refusal or failure to fully comply with all or any instructions and recommendations given to the Hirer by VB in respect of the proper use and maintenance of the Equipment;
- unexplained disappearances of the Equipment;
- loading or offloading the Equipment from maritime vessels, transportation of the Equipment on maritime vessels or the use of the Equipment on any wharf or bridge or on or over any body of water;
- Loss or damage during transport;
- Loss or damage caused or contributed to by the negligent act or omission of the Hirer.
- The Hirer warrants to VB, and it is a condition of the Agreement, that –
- the Equipment will only be used in accordance with VB’s instructions and any procedures recommended by VB and otherwise subject to the Agreement;
- the information provided by the Hirer to VB is correct in every respect and is not misleading in any way including, without limitation, by omission;
- that any change to the information provided by the Hirer to VB, including change in the directorship, senior management or conversion to or from a company or to or from a trust, shall be indicated in writing by the Hirer to VB within seven (7) days of such event occurring;
- the Hirer holds a valid current licence (if any licence is required) in respect of use, erection, dismantling and movement of the Equipment;
- the Equipment will not be used for any illegal purpose or any purpose other than its intended purpose;
- the Hirer will not, without prior written consent of VB, tamper with, repair or modify the Equipment in any way, or permit another to do so;
- unless notified in writing to VB immediately upon receipt by the Hirer, the Hirer agrees that the Equipment is in good repair and condition and is fit for the Hirer’s purpose;
- unless notified in writing to VB immediately upon receipt by the Hirer, the Hirer agrees that the Equipment has been received by the Hirer clean and in good working order; and
- the Hirer will not in any way part with possession of the Equipment, sub-lease the Equipment nor assign the Agreement, nor remove the Equipment from the site of its intended use as notified to VB without the prior written approval of VB.
- The Hirer further warrants that any person signing any documentation on behalf of the Hirer has:
- the Hirer’s authority to contract with VB on the Hirer’s behalf;
- has been authorised by Hirer to bind Hirer to hire the Equipment under this Agreement; and
- agrees to indemnify VB against all losses, costs and claims incurred by VB if this is not the case.
- Any reference to VB for the purposes of clause 11 of these Terms and Conditions also includes any relevant third party financier of the Equipment.
- VB may terminate the Agreement and recover the Equipment at any time on seven (7) days’ notice to the Hirer. If VB exercises this termination right, VB will refund the Hirer for any hire fees received by VB which relate to Equipment hired beyond the Hire Period, less a deduction for reasonable expenses incurred by VB in connection with the recovery and/or transport of the Equipment.
- Despite anything else contained in this Agreement, VB may take immediate possession of the Equipment if the Hirer breaches any provision of this Agreement or does not pay the Hirer’s account strictly in accordance with VB’s payment terms. The Hirer irrevocably authorises VB to enter upon any land or premises where VB reasonably believes the Equipment to be located for the purpose of repossessing the Equipment.
- VB may terminate the Agreement and take immediate possession of the Equipment if the Hirer commits any act of insolvency. An act of insolvency includes but is not limited to a notification of insolvency by the Hirer, the Hirer entering into a deed of company arrangement with creditors or creditors’ execution being levied against the Hirer, an application being made for the winding-up of the Hirer or notice is given of a meeting of creditors with a view to the winding-up, administration or liquidation of the Hirer, the appointment of a controller or administrator, the Hirer’s bankruptcy or the Hirer personally presenting or having presented against the Hirer a bankruptcy petition.
- VB may enter any premises where the Equipment or any part of it is, or believed to be located for the purpose of:
- inspecting or testing the Equipment;
- protecting VB’s rights or interest in the Equipment;
- ensuring compliance with any applicable law, including any law relating to health and safety; or
- exercising its right to take possession or control of the Equipment.
Liabilities and Indemnities
- To the full extent permitted by law the Hirer releases, discharges and indemnifies VB and will hold VB indemnified from all claims and demands on VB arising out of or consequent on the use or misuse of the Equipment during the Hire Period or breach of the Agreement by the Hirer.
- Without limiting any provision of this Agreement, the Hirer agrees that to the full extent permitted by law, no warranties are given by VB in respect of the Equipment. Any liability of VB pursuant to any warranty which cannot be excluded by law will not exceed either the cost of repairing the Equipment or the cost of resupplying the Equipment, at the discretion of VB.
- The Hirer will assume all risks and liabilities for, and in respect of, the Equipment and for all injuries to or dealer of persons and any damage to property howsoever arising from the Hirer’s possession, use, maintenance, repair, storage or transport of the Equipment.
- Neither the Hirer nor VB will be liable for delay or failure of performance with respect to its obligations (except Hirer’s payment obligations) to the extent that the delay is caused by force majeure. Force majeure shall mean any event or condition that adversely prevents or delays the performance of any obligation arising under the Agreement, but only to the extent such event or condition is demonstrably beyond the control of the party claiming force majeure. Force majeure may include but is not limited to such events as war, terrorism, revolution, strikes, acts of God, natural disaster or fire. Any such delay or failure of performance exceeding seven days shall entitle either party to terminate the Agreement by written notice.
Title to Equipment
- Any reference to VB for the purposes of clause 13 of these Terms and Conditions also includes any relevant third party financier of the Equipment.
- The Hirer acknowledges that VB retains title to the Equipment and that the Hirer has rights to use the Equipment as a mere bailee only. The Hirer agrees that the Hirer has no rights to pledge VB’s credit in connection with the Equipment.
- The Hirer must not agree, offer or purport to sell, assign, sub-let, lend, pledge, mortgage, let, hire, create any security interest (as defined in the PPSA) or otherwise part with or attempt to part with personal possession or otherwise deal with the Equipment, nor conceal or make any addition or alteration to, the Equipment.
- The Hirer must not make any representation, or behave in such a manner, as to induce any person to believe that the Hirer possesses title in or ownership of the Equipment.
- The remaining provisions of this clause apply to the extent that the Agreement provides for a ‘security interest’ for the purposes of the PPSA. The rights of VB under the Agreement are in addition to, and not in substitution for, VB’s rights under other law, including the PPSA, and VB may choose whether to exercise its rights under the Agreement and/or other law as it sees fit.
- VB may register its interest as a security interest under the PPSA. The Hirer must do anything (such as obtaining consents and signing documents) which VB requires for the purposes of:
- ensuring that VB’s security interest is enforceable, perfected and otherwise effective under the PPSA;
- enabling VB to gain first priority (or any other priority agreed to by VB in writing) for its security interest; and
- enabling VB to exercise rights in connection with the security interest.
- VB may recover from the Hirer the cost of doing anything under this clause, including but not limited to registration fees.
- The Hirer waives its rights to receive a verification statement in relation to registration events in respect of commercial property under section 157 of the PPSA.
- To the extent that Chapter 4 of the PPSA applies to the security interest under the Agreement, the following provisions of the PPSA do not apply, and, for the purposes of section 115 of the PPSA, are ‘contracted out’ of the Agreement in respect of all Equipment to which that section can be applied –
- section 95 (notice of removal of accession to the extent it requires VB to give notice to the Hirer);
- section 96 (retention of accession);
- section 121(4) (notice to grantor);
- section 125 (obligations to dispose of or retain collateral);
- section 129(2) and 129(3);
- section 130 (notice of disposal to the extent it requires VB to give notice to the Hirer);
- section 132(3)(d) (contents of statement of account after disposal);
- section 132(4) (statement of account if no disposal);
- section 135 (notice of retention);
- section 142 (redemption of collateral); and
- section 143 (re-instatement of security agreement).
- The following provisions of the PPSA confer rights on VB:
- section 123 (seizing collateral);
- section 126 (apparent possession);
- section 128 (secured party may dispose of collateral);
- section 129 (disposal by purchase);
- section 134(1) (retention of collateral).
The Hirer agrees that in addition to those rights, VB shall, if there is default by the Hirer, have the right to seize, purchase, take possession or apparent possession, retain, deal with or dispose of any goods, not only under those sections but also, as additional and independent rights under the Agreement and the Hirer agrees that VB may do so in any manner it sees fit, including (in respect of dealing and disposal) by private or public sale, lease, or license. The Hirer further agrees that nothing in the Agreement will constitute a contracting out of the provisions of the PPSA listed in clause 13.10(a)-(e) inclusive.
- The Hirer must do everything necessary on its part to ensure that section 275(6)(a) of the PPSA continues to apply. The Agreement in in this subclause is made solely for the purposes of allowing VB the benefit of section 275(6)(a) and VB shall not be liable to pay damages or any other compensation or be subject to injunction if VB breaches this subclause.
Location and Use
- The Hirer must expressly inform VB of the location and any change of location of the Equipment during the Hire Period.
- The Hirer must not –
- allow any third party to use or sub-lease the Equipment;
- permit removal of the Equipment from the location that the Hirer represented the Equipment would be without the prior written consent of VB.
- The Hirer must store the Equipment in a safe place and do all things necessary to ensure the continued safety and preservation of the Equipment.
- The Hirer authorises VB to collect, store, use and disclose information about the Hirer for the purposes related to the provision of hire services (including whether to allow credit on the Hirer’s account), reporting information to any credit agency, marketing VB’s goods and services, and enforcing any rights under the Agreement.
- The Hirer expressly consents to receiving commercial electronic messages from VB and its agents for the purposes of the Spam Act 2003. The Hirer may withdraw its consent at any time by notifying VB in writing.
- VB will comply with the National Privacy Principles in all dealings with the Hirer.
- The Agreement is governed by the laws of Western Australia and each party submits to the non-exclusive jurisdiction of the Courts of Western Australia.
- If any provision of the Agreement is wholly or partly invalid, unenforceable, illegal, void or voidable, the Agreement must be construed as if that provision or part of a provision had been severed from the Agreement and the parties remain bound by all of the provisions and part provisions remaining after severance.