Tristar Industries Australia Rental Pty Ltd T/A TIA Rental – Terms & Conditions of Hire
1. Definitions
1.1 “TIA Rental” shall mean Tristar Industries Australia Rental Pty Ltd T/A TIA Rental, its successors and assigns any person acting on behalf of and with the authority of Tristar Industries Australia Rental Pty Ltd T/A TIA Rental.
1.2 “Client” shall mean the Client or any person acting on behalf of and with the authority of the client.
1.3 “Equipment” shall mean all Equipment (including accessories) supplied on hire by TIA Rental to the Client (and where the context so permits shall include any incidental supply of services). The Equipment shall be described as on the invoices, quotation, authority to hire, or any other work authorisation forms provided by TIA Rental to the Client.
1.4 “Minimum Hire Period” shall mean the Minimum Hire Period as described on the invoices, quotation, authority to hire, or any other forms provided by TIA Rental to the Client.
1.5 “Price” shall mean the cost of the hire of the Equipment as agreed between TIA Rental and the Client.
2. Acceptance
The Client shall be deemed to accept the terms and conditions of hire and the condition of the Equipment upon the happening of any of the following events
a) Signing a hire agreement
b) Taking delivery of the Equipment; or
c) Continuation of the hire of the Equipment beyond the terms of hire specified in the hire agreement.
3. Price and Payment
3.1 Time for payment for the Services shall be of the essence and will be stated on the invoice, quotation, or any other order forms. If no time is agreed or stated, then payment will be due seven (7) days following the date of the invoice. Invoices are issues seven (7) days in advance.
3.2 The Price shall be increased by the amount of GST and any other taxes and duties which may be applicable, except to the extent that such taxes are expressly included in any quotation issued by TIA Rental.
4. Suitability of Equipment
4.1 The Client is solely responsible for determining the condition of the Equipment and satisfying itself that the Equipment is adequate and suitable for the purpose for which it is intended to be used by the Client.
4.2 The Equipment may be inspected by the Client prior to hire and TIA Rental shall not be liable for any claims, actions or damages whatsoever for failure of the Equipment not to perform.
5. Equipment Hire
5.1 The Client shall:
(a) keep the Equipment in their own possession and control and shall not assign the benefit of the Equipment, pledge TIA Rental’s credit for repairs to the Equipment, nor be entitled to take lien over the Equipment.
(b) not alter or make any additions to the Equipment including but without limitation altering, make any additions to, defacing or erasing any identifying mark, plate or number on in the Equipment or in any other manner interfere with the Equipment
(c) keep the Equipment, complete with all parts and accessories, clean and in good order as delivered, and shall comply with any maintenance schedule as advised by TIA Rental to the Client
(d) The Client accepts full responsibility for the safekeeping of the Equipment and the Client agrees to insure, or self- insure, TIA Rental’s interest in the Equipment and agrees to indemnify TIA Rental against physical loss or damage including, but not limited to,
the perils of accident, fire, theft and burglary and all other usual risks and will affect adequate Public Liability Insurance covering any loss, damage or injury to property or persons arising out of the uses of the Equipment. Further the Client will not use the Equipment nor permit it to be used in such a manner as would permit and insurer to deny a claim.
6. Operation of the Equipment
6.1 The Client shall ensure that the Equipment is operated by suitably qualified persons
6.2 The Client shall ensure that the Equipment is only used for the purpose and within the capacity for which it was designed.
6.3 The Client shall, at its own cost, ensure that the Equipment is maintained in a clean and lubricated condition.
6.4 The Client accepts full responsibility for Tyre Damage, including, but not limited to, flats, flat spots, side wall damage, blow outs and abnormal wear due to rough conditions. If tyres need replacing they are to be replaced with the original make and model. Rotation of tyres is required to stop unnecessary tyre wear.
6.5 The Client shall ensure that in operating the Equipment it complies with all relevant legislation including, but not limited to, the Occupational Safety and Health Act 1984 and Mines Safety and Inspection Act 1994.
6.6 The Client must not modify the Equipment with the written consent of TIA Rental
7. Term of Hire
7.1 The term of hire shall commence and end on the dates specified in the Hire Agreement unless TIA Rental provides written consent/approval to date changes
7.2 The Client shall pay for any continuation of the hire beyond the term of hire agreed upon prior to commencement of the hire term.
7.3 These terms and conditions apply to the continuation of the hire of Equipment beyond the term of hire.
8. Inspection by TIA Rental
8.1 The Client permits and agrees to facilitate the inspection of Equipment by TIA Rental from time to time
8.2 Where the Equipment is located on the premises of a third party the Client will use its best endeavors to obtain the consent of the third party to permit TIA Rental to have access to the premises to enable TIA Rental to inspect the Equipment.
9. Operating Costs and Maintenance
The Client shall provide and pay for all operating consumables during the term of hire including lubricants and tyres and shall return the Equipment to TIA Rental as the conclusion of the term of hire with operating consumables as the same or equivalent level or condition as at commencement of the term of hire.
10. Loss and Damage
10.1 The Client shall be responsible for any and all loss or damage to the Equipment and shall reimburse TIA Rental for any and all repair costs arising out of any loss, damage or downtime while repairs are being carried out to the Equipment during the term of hire.
10.2 The Client shall hold harmless and indemnify TIA Rental from and against all claims, actions and liabilities of whatsoever nature which may be made against TIA Rental in respect of any loss or damage to property or death or injury of any person caused by, or in any way arising out of, the use of the Equipment whilst the Equipment is on hire to, or in the custody of the Client, its employees or agents or any other person acting on the Clients behalf.
11. Breakdown
11.1 If the Equipment becomes unsafe, damaged or in a state of disrepair the Client shall:
a) Cease to operate the Equipment;
b) Immediately notify TIA Rental of the condition of the Equipment and take all steps reasonably necessary to prevent injury to any person and loss of damage to the Equipment or any property until TIA Rental has regained possession of the Equipment; and
c) The Client shall not attempt to repair the Equipment without TIA Rentals written consent.
12. Return of Equipment
12.1 The Client shall return the Equipment to TIA Rental, 882 Stuart Highway, Pinelands NT 0829 unless otherwise agreed upon with TIA Rental prior to hire
12.2 The Client shall, on completion, return the Equipment in the same condition that it was at the commencement of the term of hire, reasonable wear and tear expected.
12.3 When returning the Equipment, the Client shall provide to TIA Rental all details of servicing, maintenance and repairs of the Equipment carried out by the Client during the term of hire.
13. Loss and Damage
13.1 The Client shall be responsible for any and all loss or damage to the Equipment and shall reimburse the Hirer for any and all repair costs arising out of any loss or damage to the Equipment during the term of the hire.
13.2 The Hirer shall hold harmless and indemnify TIA Rental from and against all claims, actions and liabilities of whatsoever nature which may be made against TIA Rental in respect to any loss or damage to property or death or injury of any person caused by, or in any way arising out of, the use of Equipment whilst the Equipment is on hire to, or in the custody of, the Hirer, its employees or agents or any other person acting on the Hirers behalf.
14. Insurance
14.1 The Client shall effect and maintain ai its expense the policies of insurance specified in clause 13.2 providing cover from the commencement of the Hire Agreement for the term of hire (including any extension or continuation thereof).
14.2 The Client shall effect and maintain
a) A policy providing indemnity for physical loss (including theft) and/or damage to the Equipment for the value of each item of Equipment specified in Item 3 of Schedule 1 of these terms and conditions
b) A public liability policy in the usual terms which provides indemnity with respect to the operation of the Equipment including (but not limited to) indemnity in respect of personal injury or property damages caused by or arising out of the use of the Equipment to a limit of indemnity of as least $20,000,000;
14.3 The Client shall ensure that each policy of Insurance names TIA Rental as a named insured as of owner of the Equipment
14.4 The Client shall provide TIA Rental with evidence of the insurances before taking possession of the Equipment and thereafter, on demand
14.5 The Client shall not
a) Do anything, or fail to do anything, which would allow an insurer to refuse or reduce a claim;
b) Vary the insurance required by this clause in any way without the written consent of TIA Rental
c) Enforce, conduct, settle or compromise a claim without the written consent of TIA Rental
15. Exclusions to Damage Cover
15.1 You have no cover if there is a serious breach of the Hire Agreement even if Damage excess Cover has been purchased and has been paid.
15.2 You have no cover for damage to the Equipment windscreen, if any, wheels or tyres
15.3 Even if you purchase and pay for Damage Cover and pay the excess you have no cover for;
a) Damage or Third-Party Loss caused by the Equipment in any area prohibited by the Hire Agreement;
b) Overhead Damage;
c) Damage, Underbody Damage or Third-Party Loss caused deliberately or recklessly by the Client, any unauthorized driver, or any passenger;
d) Damage caused by total or partial inundation, intrusion or immersion of the Equipment in water or exposure of the Equipment to saltwater, including that of which occurs whilst the Equipment in being transported;
e) Damage caused by the use of incorrect fuel type;
f) Damage or Third-Party Loss caused by or contributed to by the Client there the Client leaves the scene of an accident prior to the attendance of the police or reporting the accident to the police;
g) Damage caused by the Clients failure to observe and warning indicators that may appear on the Equipment. If the Client is unsure what a warning indicator is telling them, the Client must contact TIA Rental immediately for advice on any further action;
h) Damage caused as a result of the Client attaching any
i) Damage or Loss caused as a result of any unauthorized towing, equipment repairs or modifications, carried out by the Client without prior written consent from TIA Rental;
j) Damage caused by incorrect or failure use of AdBlue, failure to use AdBlue, or filling the equipment’s AdBlue tank with any alternative product without the prior written consent of TIA Rental.
16. Termination of Hire
16.1 Unless otherwise specified in the Hire Agreement and after the expiry of the term of Hire Agreement, the Hire Agreement may be terminated within seven (7) days by TIA Rental when issuing the Client written notice
16.2 If the Client terminates the terms of the Hire Agreement prior to the expiration of the terms of hire, the Client shall immediately pay the balance of the hire agreement rates for the remainder of the terms to TIA Rental
16.3 TIA Rental shall have the right to terminate the Hire Agreement as per the above clause 16.1, and take possession of the Equipment immediately should the Client fail or refuse to comply the any provision, term or condition in the Hire Agreement
17. Default and Consequences of Default
17.1 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 one half percent (2.5%) per calendar month (and at TIA Rental’s sole discretion such interest shall compound monthly at such a rate) after s well as before any judgement
17.2 If the Client owes TIA Rental any money the Client shall indemnify TIA Rental from and against all costs and disbursements incurred by TIA Rental in recovering the debt (including but not limited to internal administration fees, legal costs on a solicitor and own client basis, TIA Rental’s contract default fee, and bank dishonor fees).
17.3 Further to any other rights or remedies the Seller may have under this contract, if a Client has made payment to TIA Rental by credit card, and the transaction is subsequently reversed, the Client shall be liable for the amount of the reversed transaction, in
addition to any further costs incurred by TIA Rental under this clause 4 where it can be proven that such a reversal is found to be illegal, fraudulent or in contravention to the Client’s obligations under this agreement
18. Privacy Act 1998
18.1 The Client agrees for TIA Rental to obtain from a credit reporting body (CRB) a credit report containing personal credit information (e.g. name, address, D.O.B, occupation, previous credit applications, credit history) about the Client in relation to credit provided by TIA Rental.
The Client agreed that TIA Rental may exchange information about the Client with those credit providers and with related body corporates 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 creditworthiness of the Client including the Client’s repayment history in the preceding two (2) years.
18.2 The Client consents to TIA Rental being given a consumer credit report to collect overdue payment on commercial credit.
18.3 The Client agrees that personal credit information provided may be used and retained by TIA Rental for the following purposes (and for other agreed purposes or required by):
(a) the provision of Equipment: and/or
(b) analyzing, verifying and/or checking the Client’s credit, payment and/or status in relation to the provision of Equipment and/or
(c) processing of any payment instructions, direct debits facilities requested by the Client, and/or
(d) enabling the collection of amounts outstanding in relation to the Equipment.
18.4 That TIA Rental may give information about the Client to a CRB for the following purposes:
(a) to obtain a consumer credit report
(b) allow the CRB to create or maintain a credit information file about the Client including credit history
18.5 The information given to the CRB may include
(a) personal information as outlined in 5.1 above;
(b) name of the credit provider and that TIA Rental is a current credit provider to the Client;
(c) whether the credit provider is a licensee;
(d) type of consumer credit;
(e) details concerning the Client’s application for credit or commercial credit (e.g. date of commencement/termination of the credit account and the amount requested);
(f) advice of consumer credit defaults, overdue accounts, loan repayments or outstanding monies which are overdue by more than sixty (60) days and for which written notice for request of payment has been made and debt recovery action commenced or alternatively that the Client no longer has any overdue accounts and TIA Rental has been paid or otherwise discharged and all details surrounding that discharge (e.g. dates of payments);
(g) information that, in the opinion of TIA Rental, the Client has committed a serious credit infringement;
(h) advice that the amount of the Client’s overdue payment is equal to or more than one hundred and fifty dollars ($150.00).
18.6 The Client shall have the right to request (by e-mail) from TIA Rental:
(a) A copy of the information about the Client retained by TIA Rental and the right to request that TIA Rental correct any incorrect information; and
(b) That TIA Rental does not disclose any personal information about the Client for the purposes of direct marketing.
18.7 That TIA Rental will destroy personal information upon the Client’s request (by e-mail) or if it no longer required unless it is required in order to fulfil the obligations of this agreement or is required to be maintained and/or stored in accordance with the law.
18.8 The Client can make a privacy complaint by contacting TIA Rental via e-mail. That TIA Rental will respond to that complaint within seven (7) days of receipt and will take all reasonable steps to make a decision as to the complaint within thirty (30) days of receipt of the complaint. In the event that the Client is not satisfied with the resolution provided, the Client can make a complain to the Information Commissioner at www.oaci.gov.au
19. Title
19.1 The Equipment shall at all times remain the property of TIA Rental and is returnable on demand by TIA Rental
19.2 If the Client fails to return the Equipment to TIA Rental then TIA Rental or TIA Rental’s agent may (as the invitee of the Client) enter upon and into land and premises owned, occupied or used by the Client, or any premises where the Equipment is situated and take possession of the Equipment, without being responsible for any damage thereby caused.
19.3 In the event that the Equipment is not returned to TIA Rental in the condition in which it was delivered, TIA Rental retains the right to charge the Client the full cost of repairing the Equipment as per clause 6.2 then TIA Rental shall have the right to charge the Client the full cost of replacing the Equipment.
20. Personal Property Securities Act 2009 (“PPSA”)
20.1 Only to the extent that the hire of the Equipment exceeds a twelve (12) month hire period (or a six (6) month hire period with the right to renewal) shall this clause 7 apply, and this agreement a security agreement for the purposes of PPSA generally, and I particular section 20.
20.2 In this clause financing statement, financing change statement, security agreement, and security interest has the meaning given to it by the PPSA
20.3 Upon assenting to these terms and conditions in writing the Client acknowledges and agrees that these terms and conditions constitute a security agreement for the purposes of the PPSA and create a security interest in all Equipment and/or collateral (account) – being a monetary obligation of the Buyer to the Seller for Services – that has previously been supplied and that will be supplied in the future by TIA Rental to the Client.
20.4 The Client undertakes to:
(a) 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 TIA Rental may reasonably require to:
i. register a financing statement or financing change statement in relation to a security interest on the Personal Property Securities Register;
ii. register any other document required to be registered by the PPSA; or
iii. correct a defect in a statement referred to in clause 7.4(a)(i) or 7.4(a)(ii);
(b) indemnify, and upon demand reimburse, TIA Rental 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 Equipment charged thereby;
(c) not register a financing change statement in respect of a security interest without prior written consent of TIA Rental
(d) not register, or permit to be registered, a financing statement or a financing change statement in relation to Equipment and/or collateral (account) in favor of a third party without the prior written consent of TIA Rental; and
20.5 The TIA Rental and the Client agree that sections 96, 115 and 125 of the PPSA do not apply to the security agreement created by these terms and conditions.
20.6 The Client waives their tights to receive notices under sections 95, 118, 121(4), 130, 132(3)(d) and 132(4) of the PPSA.
20.7 The Client waives their rights as a grantor and/or debtor under sections 142 and 143 of the PPSA.
20.8 Unless otherwise agreed to in writing by TIA Rental the Client waives their right to receive a verification statement in accordance with section 157 of the PPSA.
20.9 The Client must unconditionally ratify any actions taken by TIA Rental under clauses 7.4 to 7.6.
20.10 Subject to any express provisions to the contrary nothing in these terms and conditions in intended to have the effect of contracting out of any of the provisions the PPSA.
21. Security and Change
21.1 In consideration of TIA Rental agreeing to supply Equipment, the Client charges all of its rights, title and interest (whether joint or several) in any land, realty or any other assets capable of being charged, owned by the Client either now or in the future, to secure the performance by the Client of its obligations under these terms and conditions (including, but not limited to, the payment of any money).
21.2 The Client indemnifies TIA Rental from any against all TIA Rental’s cost and disbursements including legal costs on a solicitor and own client basis incurred in exercising TIA Rental’s rights under this clause.
21.3 The Client irrevocably appoints TIA Rental and each director of TIA Rental as the Clients true and lawful attorney/s to perform all necessary acts to give effect to the provisions of this clause 8 including, but not limited to, signing any document on the Client’s behalf.
22. General
22.1 The failure by TIA Rental to enforce any provision of these terms and conditions shall not be treated as a waiver of that provision, nor shall it affect TIA Rental’s right to subsequently enforce that provision. If any provision of these terms and conditions shall be invalid, void, illegal or enforceable the validity, existence, legality and enforceability of the remaining provisions shall not be affected, prejudiced or impaired.
22.2 These terms and conditions and any contract to which they apply shall be governed by the laws of the state in which TIA Rental has its principal place of business and are subject to the jurisdiction of the courts in that state.
22.3 The TIA Rental shall be under no liability whatsoever to the Client for any indirect and/or consequential loss and/or expense (including loss of profit) suffered by the Client arising out of a breach by TIA Rental of these terms and conditions (alternatively TIA Rental’s liability shall be limited to damages which under no circumstances shall exceed the Price of Equipment hire).
22.4 The Client shall not be entitled to set off against, or deduct from the Price, any sums owed or claimed to be owned to the Client by TIA Rental now to withhold payment of any invoice because part of that invoice is in dispute.
22.5 The Client warrants that is had the power to enter into this agreement and has obtained all necessary authorisations to allow it to do so, it is not insolvent and that this agreement creates a binding and valid legal obligation on it.
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