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Terms of Hire

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Terms of Hire

Definitions

  • “Contractor” shall mean Astek Cranes, its successors and assigns or any person acting on behalf of and with the authority of Astek Cranes.
  • “Client” shall mean the Client or any person acting on behalf of and with the authority of the Client.
  • “Guarantor” means that person (or persons), or entity who agrees herein to be liable for the debts of the Client on a principal debtor basis.
  • “Equipment” shall mean Equipment supplied on Hire by the Contractor to the Client (and where the context so permits shall include any supply of Equipment) and is as described on the invoices, quotation, or any other work authorization forms as provided by the Contractor to the Client.
  • “Hire” shall mean wet hire only. The operator of the Equipment shall remain as employee of the Contractor and operates the Equipment in accordance with the Client’s instructions. As such the Contractor shall not be liable for any actions of the operator in following the Client’s instructions.
  • “Minimum Hire period” shall mean the Minimum Hire Period as described on the invoices, quotation, authority to hire, or any other forms as provided by the Contractor to the Client.
  • “Price” shall mean the cost of the Hire of the Equipment as agreed between the Contractor and the client subject to clause 3 of this contract.

Acceptance

  • Any instructions received by the Contractor from the Client for the Hire of Equipment and/or the Client’s acceptance of Equipment supplied on Hire by the Contractor shall constitute acceptance of the terms and conditions contained herein.
  • Where more than one Client has entered into this agreement, the Clients shall be jointly and severally liable for all payments of the Price.
  • Upon acceptance of these terms and conditions by the Client the terms and conditions are irrevocable and can only be amended with the written consent of the Contractor.
  • The Client undertakes to give the Contractor at least fourteen (14) days’ notice of any change in the Client’s name, address and/or any other change in the Client’s details.
  • The Client acknowledges that if the period of Equipment Hire includes any period outside the contractor’s normal business hours (6.00am – 6.00pm Monday to Friday) then the hourly rate of Hire shall be charged at the Contractor’s overtime rates.

Price and Payment

At the Contractor’s sole discretion the Price shall be either;

  • as indicated on invoices provided by the Contractor to the Client in respect of Equipment supplied on Hire; or
  • the Contractor’s current Price, at the date of delivery of the Equipment, according to the Contractor’s current Price list; or
  • the Contractor’s quoted Price (subject to clause 3.2) which shall be binding upon the Contractor provided that the Client shall accept the Contractor’s quotation in writing within thirty (30) days.
  • The Contractor reserves the right to change the Price in the event of a variation to the Contractor’s quotation.
  • At the Contractor’s sole discretion a deposit may be required.
  • At the Contractor’s sole discretion a bond may be required which shall be refunded upon return of the Equipment in a condition acceptable to the Contractor.
  • At the Contractor’s sole discretion payment shall be due on delivery of the Equipment
  • Time for payment for the Equipment shall be of the essence and will be stated on the invoice or any other forms. If no time is stated then payment shall be due seven (7) days following the date of the invoice.
  • Payment will be made by cash, or by cheque, or by bank cheque, or by credit card (plus a surcharge of up to 1.9% of the Price), or by direct credit, or by any other method as agreed to between the Client and the Contractor.
  • GST and other taxes and duties that may be applicable shall be added to the Price except when they are expressly included in the Price.

Equipment Hire

  • If the Equipment requested by the Client is unavailable, or in the Contractor’s opinion the Equipment is unsuitable for the work to be undertaken by the Client, then the Contractor reserves the right to supply alternative equipment to the Client.
  • The Client shall inspect the Equipment upon delivery, and prior to the commencement of any work will notify the Contractor immediately if the Client is not satisfied with either the quality or condition of the Equipment
  • The Equipment shall at all times remain the absolute property of the Contractor and is returnable on demand by the Contractor. If the Client fails to allow the Contractor to retrieve the Equipment then the Contractor or its agent may enter upon any land or premises owned occupied or used by the Client, or any premises where the vehicle is situated as the invitee of the Client and take possession of the Equipment without being responsible for any damage thereby caused.
  • The Client shall not assign the benefit of the Equipment nor be entitled to a lien over the Equipment.
  • The Client shall not move the Equipment from the work site to which it was delivered to by the Contractor.
  • The Client acknowledges that the Equipment shall only be used for the intended purpose it was designed for, and in the manner it was designed to be used in.
  • The Client acknowledges that the Equipment shall be used in compliance with any laws pertaining to the use of the Equipment.
  • The Client shall not alter or make any additions to the Equipment (including, but without limitation, altering, making additions to, defacing or erasing any identifying mark, plate or number on or in the equipment) or in any other manner interfere with the Equipment.
  • The Client accepts full responsibility for the safekeeping of the Equipment and the Client agrees to insure, or self insure, the Contractor’s interest in the Equipment and agrees to indemnify the Contractor against physical loss or damage including, but not limited to, the perils of accident, fire, theft, vandalism, and burglary and all other usual risks and will effect adequate Public Liability insurance covering any loss, damage or injury to property or persons arising out of the use of the Equipment. Further, the Client will not use the Equipment nor permit it to be used in such a manner as would permit an insurer to decline any claim.
  • The client accepts full responsibility for and shall keep the Contractor indemnified against all liability in respect of all actions, proceedings, claims, damages, costs and expenses in respect of any injury to persons or damage to property arising out of the use of the Equipment during the Hire period however arising and whether or not arising from any negligence, failure or omission of the Client or any other persons.

Hire Period

  • The Hire period shall commence from the time the Equipment leaves the Contractor’s premises and will continue until the return of the Equipment to the Contractor’s premises, and/or until the expiry of the Minimum Hire Period, whichever last occurs.
  • No allowance whatever can be made for time during which the Equipment is not in use for any reason (including, but not limited to delays in accessing the work site) unless the Contractor confirms special prior arrangements in writing. In the event of Equipment breakdown, hire charges will not be payable during the time the Equipment is not working unless the condition is due to negligence on the part of or attributable to the Client.

Delivery of Equipment

  • Delivery of the Equipment shall take place when the Equipment is delivered to the Client’s nominated work site.
  • At the Contractor’s sole discretion the costs of Delivery are;
  • included in the Price, or / are in addition to the Price.
  • The Contractor shall not be liable for any loss or damage caused in accessing the work site beyond the reasonable control of the Contractor (including, without limitation, damage to pathways, driveways, concreted or paved or grassed areas, and mud/earth being deposited on roads due to the boggy nature of the work site).
  • The Client is solely responsible for providing free, clear, and safe access to the work site. This includes, but is not limited to, ensuring that there are no height restrictions likely to be imposed by overhead power lines or any other obstruction.
  • The failure of the Contractor to deliver shall not entitle either party to treat this contract as repudiated.
  • The Contractor shall not be liable for any loss or damage whatever due to failure by the Contractor to deliver the Equipment (or any of them) promptly or at all.

The Commonwealth Trade Practices Act 1974 (“TPA”) and Fair Trading Acts (“FTA”)

  • Nothing in this agreement is intended to have the effect of contracting out of any applicable provisions of the TPA or the FTA in each of the States and Territories of Australia, except to the extent permitted by those Acts where applicable.

Cancellation

  • The Contractor may cancel these terms and conditions or cancel delivery of Equipment at any time before the Equipment are delivered by giving written notice. On giving such notice the Contractor shall repay to the Client any sums paid in respect of the Price. The Contractor shall not be liable for any loss or damage whatever arising from such cancellation.
  • In the event that the Client cancels delivery of Equipment the Client shall be liable for any loss incurred by the Contractor (including, but not limited to, any loss of profits) up to the time of cancellation.

Default & Consequences Of Default

  • Interest on overdue invoices shall accrue from the date when payment becomes due daily until the date of payment at a rate of 2.5% per calendar month and such interest shall compound monthly at such a rate after as well as before any judgment.
  • If the Client defaults in payment of any invoice when due, the Client shall indemnify the Contractor from and against all costs and disbursements incurred by the Contractor in pursuing the debt including legal costs on a solicitor and own client basis and the Contractor’s collection agency costs.
  • Without prejudice to any other remedies the Contractor may have, if at any time the Client is in breach of any obligation (including those relating to payment), the Contractor may suspend or terminate the supply of Equipment to the Client and any of its other obligations under the terms and conditions. The Contractor will not be liable to the Client for any loss or damage the Client suffers because the Contractor exercised its rights under this clause.
  • If any account remains overdue after thirty (30) days then an amount of the greater of $20.00 or 10.00% of the amount overdue (up to a maximum of $200) shall be levied for administration fees which sum shall become immediately due and payable.
  • Without prejudice to the Contractor’s other remedies at law the Contractor shall be entitled to cancel all or any part of any order of the Client which remains unperformed in addition to and without prejudice to any other remedies and all amounts owing to the Contractor shall, whether or not due for payment, become immediately payable in the event that:
  • (a) any money payable to the Contractor becomes overdue, or in the Contractor’s opinion the Client will be unable to meet its payments as they fall due; or
  • (b) the Client 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
  • (c) a receiver, manager, liquidator (provisional or otherwise) or similar person is appointed in respect of the Client or any asset of the Client.

Security And Charge

Despite anything to the contrary contained herein or any other rights which the Contractor may have howsoever:

  • (a) where the Client and/or the Guarantor (if any) is the Contractor of land, realty or any other asset capable of being charged, both the Client and/or the Guarantor agree to mortgage and/or charge all of their joint and/or several interest in the said land, realty or any other asset to the Contractor or the Contractor’s nominee to secure all amounts and other monetary obligations payable under the terms and conditions. The Client and/or the Guarantor acknowledge and agree that the Contractor (or the Contractor’s nominee) shall be entitled to lodge where appropriate a caveat, which caveat shall be released once all payments and other monetary obligations payable hereunder have been met.
  • (b) should the Contractor elect to proceed in any manner in accordance with this clause and/or its sub-clauses, the Client and/or Guarantor shall indemnify the Contractor from and against all the Contractor’s costs and disbursements including legal costs on a solicitor and own client basis.
  • (c) the Client and/or the Guarantor (if any) agree to irrevocably nominate constitute and appoint the Contractor or the Contractor’s nominee as the Client’s and/or Guarantor’s true and lawful attorney to perform all necessary acts to give effect to the provisions of this clause.

Privacy Act 1988

  • The Client and/or the Guarantor/s agree for the Contractor to obtain from a credit reporting agency a credit report containing personal credit information about the Client and Guarantor/s in relation to credit provided by the Contractor.
  • The Client and/or the Guarantor/s agree that the Contractor may exchange information about the Client and the Guarantor/s with those credit providers either named as trade referees by the Client or named in a consumer credit report issued by a credit reporting agency for the following purposes:
  • a) to assess an application by the Client; and/or
  • (b) to notify other credit providers of a default by the Client; and/or
  • (c) to exchange information with other credit providers as to the status of this credit account, where the Client is in default with other credit providers; and/or
  • (d) to assess the credit worthiness of Client and/or Guarantor/s.
  • The Client consents to the Contractor being given a consumer credit report to collect overdue payment on commercial credit (Section 18K(1)(h) Privacy Act 1988).
  • The Client agrees that personal credit information provided may be used and retained by the Contractor for the following purposes and for other purposes as shall be agreed between the Client and Contractor or required by law from time to time:
  • (a) the provision of Equipment on hire; and/or
  • (b) marketing of services by the Contractor, its agents or distributors in relation to the Equipment; and/or
  • (c) analysing, verifying and/or checking the Client’s credit, payment and/or status in relation to provision of Equipment on hire; and/or
  • (d) processing of any payment instructions, direct debit facilities and/or credit facilities requested by Client; and/or
  • (e) enabling the daily operation of Client’s account and/or the collection of amounts outstanding in the Client’s account in relation to the to the hire of the Equipment.

The Contractor may give information about the Client to a credit reporting agency for the following purposes:

  • (a) to obtain a consumer credit report about the Client; and/or
  • (b) allow the credit reporting agency to create or maintain a credit information file containing information about the Client.

Building and Construction Industry Payments Act 2004

  • At the Contractor’s sole discretion, if there are any disputes or claims for unpaid services then the provisions of the Building and Construction Industry Payments Act 2004 may apply.
  • Nothing in this agreement is intended to have the affect of contracting out of any applicable provisions of the Building and Construction Industry Payments Act 2004 of Queensland, except to the extent permitted by the Act where applicable.

General

  • 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 contract to which they apply shall be governed by the laws of Queensland and are subject to the jurisdiction of the courts of Queensland.
  • The Contractor shall be under no liability whatever to the Client for any indirect loss and/or expense (including loss of profit) suffered by the Client arising out of a breach by the Contractor of these terms and conditions.
  • In the event of any breach of this contract by the Contractor the remedies of the Client shall be limited to damages. Under no circumstances shall the liability of the Contractor exceed the Price.
  • The Client shall not be entitled to off set against or deduct from the Price any sums owed or claimed to be owed to the Client by the Contractor.
  • The Client shall not be entitled to off set against or deduct from the Price any sums owed or claimed to be owed to the Client by the Contractor.
  • The Contractor reserves the right to review these terms and conditions at any time. If, following any such review, there is to be any change to these terms and conditions, then that change will take effect from the date on which the Contractor notifies the Client of such change.
  • Neither party shall be liable for any default due to any act of God, war, terrorism, strike, lock out, industrial action, fire, flood, drought, storm or other event beyond the reasonable control of either party.
  • The failure by the Contractor to enforce any provision of these terms and conditions shall not be treated as a waiver of that provision, nor shall it affect the Contract’s right to subsequently enforce that provision.

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Servicing Brisbane, Ipswich, Logan

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