CRANE SERVICES PTY LTD TERMS AND CONDITIONS – WET
1. YOUR AGREEMENT
Your agreement with us consists of:
1.1 the front page of this form; and
1.2 these terms and conditions (as amended from time to time).
2.1 We agree to provide to you and you agree to accept from us the Cranage Services on the terms and conditions of this Agreement.
2.2 You accept the Cranage Services on these terms and conditions by either:
(a) signing and dating the front page of this Agreement in the space provided;
(b) by us commencing to provide the Cranage Services in accordance with your request.
2.3 We may amend this Agreement from time to time by providing you prior notice of the amendment.
The following defined terms and their meanings appear in this Agreement:
Australian Consumer Law means Schedule 2 to the Competition and Consumer Act 2010 (Cth) as amended from time to time.
Agreement means this Agreement which is your Cranage Services Agreement with us and which comprises the front page of this Agreement and these terms and conditions;
Applicable Laws means all legislation, statutes, by-laws, regulations, ordinances, rules or operating requirements of Government Agency, judicial decrees and other laws which may apply to any party;
Charges means any charges, costs and expenses, all present and future taxes, including sales tax, levies, duties, fees, government charges, stamp duty but excluding GST;
Claim means any claim, action, proceeding, loss (including Consequential Damages), damage, cost, expense or liability incurred or suffered by, or brought or made or recovered against any person, no matter how arising (whether or not presently ascertained, immediate, future or contingent);
Commencement Date and Time means the commencement date and time appearing on the front page:
Consequential Damages means any indirect, special, consequential, punitive or exemplary damages, expenses, losses or costs including loss of anticipated or actual revenue or profits, loss of or inability to use equipment, a failure to realise anticipated savings, lost data, down time costs or loss of goodwill;
Consequential Loss means loss of profit, loss of production, loss of use of any plant or facility, business interruption, loss of business opportunity or any other indirect, consequential, special contingent of penal damage or loss.
Cranage Services means the handling, lifting, carriage, transportation or delivery of Goods and / or operation of the Crane for the Permitted Use as stated in the front page of this Agreement and any rigging services or other services carried out by us in connection with this Agreement;
Crane means the crane described on the front page of this Agreement;
Crane Operator means the crane operator or operators provided by us as part of the Cranage Services to operate and manage the Crane in accordance with your reasonable supervision and direction;
Fee means the fee payable by you for the hire of the Crane for the Term, and at the standard rate of hire determined from time to time by us, unless otherwise agreed with you in writing and as may appear on the front page of this Agreement;
Goods means all goods and plant and equipment including any crates, cases, pallets or any other type of container and includes any Third Party Goods;
Government Agency means any government or semi-government agency, tribunal, board, any statutory authority or self-governing body having regulatory authority;
GST means goods and services tax payable under the GST Law and an expression used in this Agreement in relation to GST will have the meaning used in or attributed to that expression by the GST Law from time to time. GST Law has the same meaning as the definition of “GST law” in A New Tax System (Goods and Services Tax) Act 1999;
Insolvency Event means the occurrence of any one or more of these events in relation to a party:
(a) except for the purpose of a solvent reconstruction or amalgamation:
a. an order is made that it be wound up or that a receiver be appointed to it or any of its assets; or
b. a resolution that it be wound up is passed or proposed;
(b) a liquidator, provisional liquidator, administrator, receiver or any similar official is appointed to, or takes possession or control of, all or any of its assets or undertaking or any step is taken to effect any of these things;
(c) it enters into, or resolves to enter into, an arrangement, compromise or composition with any class of its creditors, or process is filed in a court seeking approval of any such arrangement, compromise or composition;
(d) any action is taken by the relevant Government Agency or another person with a view to cancelling its registration or to dissolving it;
(e) it is insolvent or it otherwise states that it is unable to pay its debts, or it is presumed to be insolvent under any applicable law;
(f) it stops or suspends the payment of all or a class of its debts;
(g) it stops or suspends the conduct of all or a substantial part of its business or threatens to do so;
(h) it becomes an insolvent under administration as defined in the Applicable Laws relating to insolvency (or similar) or action is taken which would result in that event; or
(i) anything having a substantially similar effect to any of the events specified in the preceding paragraphs happens to it under the Applicable Laws of any jurisdiction;
Operator means the Crane Operator(s), Rigger and / or Third Party Labourer which may be engaged by us in connection with the Cranage Services and this Agreement;
Operator’s Fee means a fee payable for the work done by the Crane Operator, Rigger and / or Third Party Operator at the standard rate determined from time to time by us, unless otherwise agreed with you in writing, and as may appear on the front page of this Agreement;
Overtime Fee means a fee payable for the performance of Overtime Work, and at the standard rate determined from time to time by us unless otherwise agreed with you in writing and as may appear on the front page of this form;
Overtime Work means work performed by an Operator pursuant to this Agreement which is in excess of 8 hours in a given day;
Permitted Use means the use of the Cranage Services as agreed by you and set out in the front page of this Agreement;
PPSA means the Personal Property Securities Act 2009 (Cth) as amended;
Security Interest has the same meaning as defined in the PPSA;
Rigger means the rigger which may be provided by us in connection with the provision of rigging services for the Crane;
Supply means a supply within the meaning of section 9-10 of the GST Law;
Taxable Importation means the importation within the meaning of section 13-5 of the GST Law;
Third Party Goods has the meaning give in clause 6.7 in respect of which we have agreed to provide the Cranage Services, as described on the front page of this Agreement.
Third Party Labourer means any third party labourer we may engage to assist with the carrying out of the Cranage Services or otherwise in connection with this Agreement.
Term means the hire period of the Crane and the Cranage Services as set out on the front page of this Agreement which may be extended by agreement of the parties or in accordance with this Agreement;
Total Fees means the sum of the Charges, the Fee, the Overtime Fee and the Operator’s Fees and other amounts owing by you to the Owner in connection with this Agreement (including reimbursable costs or expenses);
We or us means the Trustee for Crane Services Pty Ltd ABN 65 109 586 647 trading as Crane Services Pty Ltd and includes any sub-contractors or agents of us, and our has a corresponding meaning; and
You means each person named as the Customer on the front page and, if there is more than one, you means each of the persons separately and jointly, and your has a corresponding meaning.
4.1 We will provide and you will accept the Cranage Services from the Commencement Date and Time for the Term. For this purpose, the Total Fees are calculated from the time the Crane leaves our depot until the time it returns to that depot (but for not less than the Term).
4.2 Unless otherwise agreed by us:
(a) by notice to you; or
(b) pursuant to the terms of a purchase order agreed by us prior to the Commencement Date,
you will pay us the Total Fees not later than 30 days from the date of the invoice that we send to you.
4.3 You will pay the Total Fees to us free and clear of all deductions, set off, reductions, charges and adjustments whatsoever.
4.4 If you fail to pay any amount payable to us under and in connection with this Agreement when due, interest will accrue on the balance owing from the due date for payment at the rate of 15% per annum. Interest will be calculated daily and capitalised monthly on all overdue monies (including interests) until paid in full. A return payment fee of $35 will be charged for any declined cheques or automatic withdrawals.
4.5 At the end of each day of their engagement under this Agreement, Operators may (but are not obliged to) confirm with Customers their time sheets at and may request the Customer sign the relevant time sheet as an acknowledgement of the relevant Operators hours of attendance.
If any amount payable under this Agreement is consideration for a Taxable Supply and the amount is not stated to be inclusive of GST, the recipient of the Supply must pay the supplier in addition to and on the same terms as the amount payable for the supply, an amount on account of GST equal to the amount payable for the supply multiplied by the prevailing GST rate.
6. CRANE OPERATION
6.1 Nothing in this Agreement confers on you any estate interest or property in or to the Crane and you will be a bailee of the Crane only and the benefit of this Agreement and the right to use the Crane is personal to you.
6.2 You must not assign, sublet, transfer or part with possession of the Crane, nor allow the Crane to become subject to any Security Interest without the Owner’s consent and upon such terms and conditions as the Owner may in the Owners absolute discretion require.
6.3 To the maximum extent permitted by law, we will not be liable for any Claim:
(c) in connection with delay in our performance of the Cranage Services or in delivery of the Crane or failure to deliver the Crane to you;
(d) arising directly or indirectly in connection with the Goods or any other property as part of the Cranage Services;
(e) [SP12] in relation to any damage caused to the Goods in connection with the provision of the Cranage Services whatsoever including for clarity and damage caused to the Goods in connection with our reliance on your instructions in respect of the Goods ; and
(f) the misdelivery, delay in delivery, failure to deliver any of the Goods or any part of the Goods in the performance of the Cranage Services.
6.4 Unless we agree otherwise in respect of the Cranage Services, we will provide the Operator (which includes for clarity any Crane Operator, Rigger and Third Party Labourer) to you as part of the Cranage Services. If the Operator requests from you, or any persons directly or indirectly under your supervision or direction, a ticket or licence to evidence that you or the persons directly or indirectly under your supervision or direction are suitably qualified in respect of rigging or other services then you are required to promptly comply or procure prompt compliance in respect of such request.
6.5 You must advise us and the Operator in writing (or as otherwise agreed by the Owner) of the existence of any dangers, hazards or other relevant circumstances that a prudent Customer would advise us before we provide you with the Cranage Services, including without limitation the existence of any underground or overhead cables and services and any unsafe or unstable ground or surface.
6.6 We may at our discretion refuse to provide the Cranage Services for the Goods or any class of goods which we believe are offensive, volatile, noxious, inflammable, hazardous, dangerous or explosive or for any other reason.
6.7 You must promptly disclose to us the nature, weight and dimensions of the Goods upon our request. We will rely on the nature, weight and dimensions of the Goods you have declared to us when we provide the Cranage Services and as such you will be fully liable for any Claim suffered by us in respect of such reliance.
6.8 Without limiting clause 6.3, 6.6 and 6.7 you agree that if you want us to provide Cranage Services in relation to any third party goods then prior to the Commencement Date you will provide us all relevant details of the third party goods so we so can consider and determine whether we agree to provide Cranage Services in respect of the relevant third party goods. We will notify you if we agree to provide Cranage Service in respect of all, or a portion of, the third party goods (Third Party Goods) and may but are not required to list the Third Party Goods on the front page.
6.9 In the event that the Crane becomes bogged, immobilised or inoperable during the provision of the Cranage Services, then the cost of retrieving the Crane will be payable by you as part of the Fees, and calculated at the rate of the hiring of the Crane charged by us under this Agreement.
6.10 You acknowledge and agree that we are not a common carrier and we will not accept any liability or obligations of a common carrier.
6.11 We will not obtain any insurance of the Goods for your benefit except on your written request and only at your cost and expense. We may decline the responsibility to arrange insurance on your behalf.
6.12 Without limiting clause 6.13 you accept full responsibility for the safe keeping of the Crane and will put in place all appropriate security protocols to protect the Equipment from theft or misappropriation.
6.13 You warrant you have taken out prior to entry into this Agreement and are maintaining all appropriate insurances in connection with the carrying out the Cranage Services (including but not limited to public indemnity insurance to a minimum of $20m, worker’s compensation insurance in respect of death and injury of any person in connection with the Crane and Cranage Services, ensuring that the Equipment is covered by a policy of comprehensive insurance and third party insurance for the exclusive benefit of the Owner at its discretion.). You will provide us copies of the insurance policies on request,
6.14 You acknowledge that you are an operator of a business and the hiring of the Crane from us is for business purposes only and accordingly the National Consumer Credit Protection Act 2009 (Cth) does not apply to this Agreement.
6.15 You acknowledge that the provision of the Cranage Services shall be deemed as your acceptance of our terms and conditions. This applies whether this agreement is signed or not.
6.16 We make no warranty as to fitness for purpose in respect of the Crane and you acknowledge that prior to the execution of this Agreement you have examined and that the Crane and made all reasonable enquiries that it is reasonably fit for your purposes.
7. YOUR TERMINATION OF AGREEMENT
7.1 You may terminate this Agreement at any time on the condition that you pay us at the same time the Total Fees owing to us under this Agreement. .
7.2 If you terminate this Agreement you grant us an irrevocable licence to enter your premises to inspect, remove, collect and do anything else to the Crane. We do not need your consent to do so and we will not be liable for any Claim by you if we enter your premises in accordance with this clause. You will pay to us all costs associated with the removal of the Crane your premises as contemplated in this clause.
8.1 You acknowledge and agree that, apart from any rights and remedies under the Australian Consumer Law and any other Applicable Law than cannot be lawfully excluded:
(a) All conditions and warranties, provided by statute or otherwise, are excluded concerning the Cranage Services provided by us, and we will not be liable for any Claim that you may suffer in relation to the Crane or the Cranage Services under this Agreement;
(b) Our liability to you is limited to either in the case of the Cranage Services, supplying the Cranage Services again or refunding to you the cost of the Cranage Services as selected by us; and
(c) you will indemnify us and keep us indemnified and release us and hold us harmless against any Claim arising directly or indirectly in connection with your use and possession of the Crane and the Cranage Services and this Agreement.
8.2 In particular;
(a) you acknowledge and agree that we are not responsible or liable to you for any Consequential Loss, you may suffer by reason of our acts or omissions in connection with the Cranage Services and/or the Crane;
(b) you agree to meet any costs and liabilities arising out of the movement of the Crane over any footpaths, nature strips, driveways and similar areas;
(c) If you request that the Crane remains at the location where the work is being performed, at a time when work is not being performed at the site, then; you will be responsible to ensure that the Crane is adequately secured during this time;
(ii) you will indemnify us for any loss or damage caused to the Crane at any time while it remains at that location and is not in use, including any Consequential Loss while the Crane is being repaired (which for this purpose will be the normal Fee for the use of the Crane by you under this Agreement);
(iii) you will pay the cost of travelling of the Operator and any other person involved in the provision of the Cranage Services either from the depot, or their residence as the case may be.
(d) We will not be liable to you for loss of profit or other economic loss (including Consequential Loss), specific general or other damages (including Consequential Damages) or other expenses or costs arising out of our breach of contract or other common law duty (including negligence by the Owner
9.1 You acknowledge and agree that the Agreement constitutes a PPS Lease for the purposes of the PPSA.
9.2 You acknowledge and agree that:
(a) the Agreement grants the Owner a purchase money security interest (Security Interest) in the Crane to secure all amounts owed by you to the Owner;
(b) the Agreement may be registered on the Personal Property Security Register (PPSR) as a Security Interest;
(c) it will do all things necessary and provide us on request all information we require to register a financing statement or financing charge statement on the PPSR;
(d) it will not change its name in any form or other details on the PPSR without first notifying you; and
(e) it will, if requested by us, pay to us the cost of registering and maintaining registration of our Security Interest on the PPSR, within 14 days of the request.
9.3 Without affecting any other indemnity or rights under the Agreement, if you are in breach of any of your obligations under clause 9.2, you must indemnify us against all loss or expense suffered by us as a consequence of that breach.
9.4 We need not give you any notice under the PPSA (including a verification statement or a financing change statement) unless the notice is required by the PPSA and cannot be excluded.
9.5 No party may disclose information of the kind referred to in section 275(1) of the PPSA (except where the parties may do so where required due to the operation of section 275(7) of the PPSA) and you must not authorise the disclosure of such information.
9.6 You appoint us as your attorney to sign in your name all documents which we consider necessary to enforce or protect its rights and powers under the Agreement and to perfect, preserve, maintain, protect or otherwise give full effect, under the PPSA and related regulations, to the Agreement and the Security Interest created by the Agreement.
9.7 If Chapter 4 of the PPSA would otherwise apply to the enforcement of the Security Interest under this Agreement, the parties agree that the following provisions of the PPSA will not apply, or are waived, as the context requires:
(a) section 95 (notice of removal of accession);
(b) section 118 (enforcement of security interest in accordance with land law decisions);
(c) section 123 (secured party may seize collateral);
(d) section 125 (obligation to dispose or retain collateral);
(e) section 128 (secured party may dispose of collateral);
(f) section 129 (notice of purchase);
(g) section 130 (notice of disposal);
(h) sections 132(1) and (4) (right to receive a statement of account);
(i) section 135 (notice of retention);
(j) section 142 (redemption of collateral); and
(k) section 143 (reinstatement of security agreement).
9.8 You may not grant or allow anyone else to register any Security Interest over the Crane, or any proceeds from the Crane or any right or benefit of you under or pursuant to this Agreement as security for any debt liability or obligation.
9.9 Unless otherwise defined in this Agreement, the terms and expressions used in this clause 9 have the meanings given to them, or by virtue of, the PPSA.
11.1 You are in default under this Agreement if:
11.1.1 you breach any term of this Agreement and have not rectified such default within 7 days’ notice of default;
11.1.2 You do not make a payment in full by the due date as set out in an invoice or as otherwise required by us;
11.1.3 To the extent permitted by law, you commit an Insolvency Event;
11.1.4 We reasonably form the view that you have or are likely to endanger the safety and condition of the Operator and/or the Crane.
11.2 If you are in default under this Agreement then:
11.2.2 We may notify you that the Agreement is terminated with immediate effect;
11.2.3 upon our demand you will immediately pay us the Total Fees owing under this Agreement;
11.2.4 we may enter your premises to inspect, remove, collect and do anything else to the Crane and in such circumstances you will be deemed to have granted us an irrevocable licence to do such things and you will compensate us for all costs associated with the removal of the Crane your premises as contemplated in this subclause; and
11.2.5 we may immediately cease providing any Cranage Services to you, and if that occurs, you agree that we are not liable to you for any loss or damage as a result of us ceasing work.
11.3 You agree to indemnify us from any loss or damage sustained by us as a result of you breaching, or as a result of us ceasing to provide the Cranage Services as a result of us reasonably forming the view that you are likely to breach any of the provisions of this Agreement.
12 GENERAL MATTERS
12.1 We may assign, novate or sub-contract any of our rights and obligations under this Agreement. We do not need your consent to do so. You may not assign any of your rights under this Agreement without our written approval.
12.2 A waiver of any of our rights under this Agreement does not occur unless we notify you in writing.
12.3 If any part of this Agreement is invalid, unenforceable or is in breach of any law, it is to be excluded from this Agreement. The remainder of this Agreement continues in full force and effect.
12.4 This Agreement binds the parties’ respective heirs, successors, legal personal representatives and assigns. You agree that you will promptly notify us of any change of address for the mailing of any notices which we may need to send you.
12.5 Every provision of this Agreement will be deemed severable as far as possible from the other provisions of this Agreement. If any provision is found to be void, illegal or unenforceable for any reason, then it will be deemed to be severed and omitted from this Agreement. This Agreement, with the offending provision severed and omitted and with any consequential amendment if necessary, will otherwise remain in full force.
12.6 You acknowledge and agree that:
(a) You have advised us of the particular purpose for which the Cranage Services are required and you are satisfied that the Crane is suitable and in a condition or of a quality fit for your use and purpose ;
(b) You have advised us of the existence of any dangers or hazards that would effect or would be likely to effect our provision to you of the Cranage Services;
(c) We have not given you any express warranty or representation as to the condition, suitability, quality or fitness for purpose of the Crane or Cranage Services;
(d) You have complied with all Applicable Laws and customs and have obtained all necessary approvals, authorisations, permits and licences to us to perform the Cranage Services and to use and operate the Crane and in connection with this Agreement;
(e) this Agreement will be governed by the laws of South Australia;
(f) this Agreement is the entire Agreement between you and us concerning the Cranage Services;
(g) if you act in the capacity of trustee of any trust, then your obligations under this Agreement will bind you in your own right and in your capacity as trustee, and your rights as trustee against the assets of the trust will not be abrogated;
(h) if you enter into this Agreement as agent for the Customer, you will be deemed to be duly authorised by the Customer to sign all documents (including but not limited to an acceptance of the terms and conditions of this Agreement) for and on behalf of the Customer and you will indemnify us and keep us indemnified against any Claim arising in connection with the use and possession of the Crane and the Cranage Services and this Agreement; and if you consist of 2 or more individuals and/or bodies corporate, your obligations under this Agreement will bind you jointly and severally.