CRANE SERVICES PTY LTD TERMS AND CONDITIONS
YOUR AGREEMENT
1.1 Your agreement with us consists of:
(a) the Front Page; and
(b) these terms and conditions (as amended from time to time).
1.2 You accept the Services on the terms and conditions of this Agreement by either:
(a) signing and dating the front page of this Agreement in the space provided; or
(b) by us commencing to provide Services in accordance with your request.
(c) We may (but are not required to) from time to time require that you sign a new Front Page acknowledging and agreeing to the details of the Service that you have requested that we provide you.
2. SERVICES
2.1 From time to time we may provide you with Services including the Services which may be described on the Front Page at our standard rates.
3. FEES
3.1 All Services
(a) You will pay the Total Fees to us free and clear of all deductions, set off, reductions, charges and adjustments whatsoever.
(b) 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.
3.2 Wet Cranage Services
(a) This clause 3.2 applies where we are providing you with Wet Cranage Services.
(b) We will provide and you will accept the Wet Cranage Services from the Commencement Date and Time for the Term.
(c) The Total Fees for Wet Cranage Services are calculated from the time the Equipment leaves our Depot until the time it returns to that Depot (but for not less than the Term).
(d) Unless otherwise agreed by us:
(i) by notice to you; or
(ii) pursuant to the terms of an Order agreed by us prior to the Commencement Date and Time,
you will pay us the Total Fees not later than 30 days from the date of the invoice that we send to you.
(e) At the end of each day of their engagement under this Agreement, Operators may (but are not obliged to) confirm with you their time sheets and may request you to sign the relevant time sheet as an acknowledgement of the relevant Operators hours of attendance.
(f) Where the Operators hours are in excess of 8 hours per day, you will be required to pay an Overtime Fee.
3.3 Dry Cranage Services
(a) This clause 3.3 applies where we are providing you with Dry Cranage Services.
(b) As consideration for the hire of the Equipment, you must pay to us the Total Fees during the Term and any additional period in which you have possession of the Equipment.
(c) Unless the hours of the usage and hire of the Equipment are set out in writing to be otherwise, the hours of usage will be:
(i) a day of 8 hours use over a continuous 8 hour period;
(ii) a week of 40 hours use over a continuous one week period; and
(iii) a month of 160 hours use over a continuous 4 week period.
(d) If you use the Equipment outside the period set out in clause 3.3(c), you will be liable to pay us for the excess on a pro rata basis.
3.4 Repair Services
(a) This clause 3.4 applies where we are providing you with Repair Services.
(b) You must pay for the Repair Services on the later of completion of the Repair Services (as determined by us) or in accordance with the terms of the invoice issued by us to you.
4. TITLE
4.1 The title and ownership in the Repair Goods remain with us until full payment is received for all the Repair Goods.
4.2 Where we are providing you with Wet Cranage Services or Dry Cranage Services:
(a) nothing in this Agreement confers on you any estate interest or property in or to the Equipment;
(b) you will be a bailee of the Equipment only; and
(c) the benefit of this Agreement and the right to use the Equipment is personal to you.
5. GST
5.1 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. EQUIPMENT OPERATION – GENERAL
6.1 This clause 6 applies where we are providing you with Wet Cranage Services and Dry Cranage Services.
6.2 You must not assign, sublet, transfer or part with possession of the Equipment, nor allow the Equipment to become subject to any Security Interest without our consent and upon such terms and conditions as we may in our absolute discretion require.
6.3 We may, at our discretion, refuse to provide the Equipment if we believe they are going to be used in connection with the Goods or any class of goods which we believe are offensive, volatile, noxious, inflammable, hazardous, dangerous or explosive or for any other reason.
6.4 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 Services and as such you will be fully liable for any Claim suffered by us in respect of such reliance.
6.5 In the event that the Equipment becomes bogged, immobilised or inoperable during the Term, then the cost of retrieving the Equipment will be payable by you as part of the Fees, and calculated at the rate of the hiring of the Equipment charged by us under this Agreement.
6.6 You acknowledge and agree that we are not a common carrier and we will not accept any liability or obligations of a common carrier.
6.7 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.
6.8 Without limiting clause 10 in respect of your express Dry Cranage Services comprehensive insurance obligations (if applicable), you warrant you have taken out prior to entry into this Agreement and are maintaining all appropriate insurances in connection with the Dry Cranage Services and the Wet Cranage Services (including but not limited to public indemnity insurance to a minimum of $20,000,000, worker’s compensation insurance in respect of death and injury of any person in connection with the Equipment and the relevant Services, ensuring that the Equipment is covered by a policy of comprehensive insurance and third party insurance for the exclusive benefit of us at our discretion). You will provide us copies of the insurance policies on request.
6.9 Without limiting clause 6.2 you accept the risk and full responsibility for the safe keeping of the Equipment once it is on Site and will put in place all appropriate security protocols to protect the Equipment from theft or misappropriation.
6.10 You acknowledge that you are an operator of a business and the hiring of the Equipment from us is for business purposes and accordingly the National Consumer Credit Protection Act 2009 (Cth) does not apply to this Agreement.
6.11 We make no warranty as to fitness for purpose in respect of the Equipment and you acknowledge that prior to the execution of this Agreement you have examined the Equipment and made all reasonable enquiries that it is reasonably fit for your purposes.
7. EQUIPMENT OPERATION – DRY CRANAGE SERVICES
7.1 This clause 7 applies in addition to clause 6 where we are providing you with Dry Cranage Services.
7.2 To the maximum extent permitted by law, we will not be liable for any Claim:
(a) in connection with delay in delivery of the Equipment or failure to deliver the Equipment to you;
(b) arising directly or indirectly in connection with your use of the Equipment including in connection with the Goods or any other property as part of your use of the Equipment.
7.3 Unless we agree otherwise:
(a) you will only use the Equipment in accordance with the Permitted Use and will not hire out, employ or use the Equipment or permit it to be used for any other use;
(b) you will at all times during the Term at your expense without any notice or demand from us ensure that the Equipment is kept in the same good and clean repair and condition as it was in at the Commencement Date and Time (damage by fair wear and tear excepted);
(c) you will supply a suitably qualified, licenced and competent operator with the appropriate operator’s certificate and pay thier wages;
(d) you will use the Equipment in a skilful and proper manner only for the purposes for which it was designed (including in accordance with any relevant operation manual);
(e) in the event of any failure of the Equipment of any nature whatsoever you will immediately notify us providing relevant details. Fees will continue to accrue whilst the Equipment is inoperative due to damage however caused until such time that the Equipment is repaired to our satisfaction;
(f) you will supply all fuels, oil, grease, filters and other relevant products as necessary to maintain the Equipment in accordance with the manufacturer’s requirements and specifications;
(g) you will carry out all diligent checks on the Equipment to ensure the continuous safe operation of the Equipment;
(h) you must not alter or make any modifications to the Equipment nor alter any identifying mark or number on it;
(i) without limiting your other obligations under this clause 7 and subject to our rights pursuant to this Agreement, you will at your own expense replace with parts of similar quality and type each and every part of the Equipment which may be damaged beyond reasonable repair or loss or otherwise rendered unsuitable or unavailable for the Permitted Use as a result of your use of the Equipment which does not accord with the Permitted Use;
(j) you must retain the Equipment under your control solely and not remove the Equipment from the premises set out in an order without our consent;
(k) you must immediately notify us of any change of your address;
(l) you must comply with all Applicable Laws relating to the registration, licensing and use of the Equipment and will promptly pay all requisite fees and charges in connection with it;
(m) you must notify us in writing immediately upon any loss or damage being occasioned to the Equipment;
(n) you accept full responsibility for the safe keeping of the Equipment and will put in place all appropriate security protocols to protect the Equipment from theft or misappropriation;
(o) you acknowledge that the pick up of the Equipment from our Depot shall be deemed as your acceptance of our terms and conditions. This applies whether this agreement is signed or not; and
(p) for conventional boom cranes you agree that it is your responsibility to supply suitable craneage and labour to assist in the assembly and disassembly of the cranes and any loading or off-loading involving transport and Equipment at your cost.
7.4 We will provide you an “On Hire Condition Report” on the Commencement Date or soon thereafter. You are required to sign the report thereby acknowledging and agreeing as to the condition of the Equipment as set out on the report. Upon return of the Equipment we will set out our assessment as to the condition of the Equipment in an “Off Hire Conditions Report”. If the Equipment is not in the same condition as set out in the On Hire Condition Report you will be required to promptly make good any defects and wants of repair in breach of your obligations to service, repair and maintain the Equipment as soon as reasonably possible after we gives you notice of such defects and want of servicing, repair or maintenance (“Rectification
Notice”). If you fails to commence such work or fails to perform such work diligently and in a professional manner within seven days of receiving a Rectification Notice, we may (but are not obligated to and without prejudice to our right to terminate this Agreement) for us and our employees, agents or contractors to enter the premises where the Equipment is situated and execute or complete the execution of such work at your cost and expense. Any monies expended by us on such work will be recoverable on the same terms as the Fees.
8. EQUIPMENT OPERATION – WET CRANAGE SERVICES
8.1 This clause 8 applies in addition to clause 6 where we are providing you with Wet Cranage Services.
8.2 To the maximum extent permitted by law, we will not be liable for any Claim:
(a) in connection with delay in our performance of the Wet Cranage Services or in delivery of the Equipment or failure to deliver the Equipment to you;
(b) arising directly or indirectly in connection with the Goods or any other property as part of the Wet Cranage Services;
(c) in relation to any damage caused to the Goods in connection with the provision of the Wet 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
(d) the misdelivery, delay in delivery, failure to deliver any of the Goods or any part of the Goods in the performance of the Wet Cranage Services.
8.3 Unless we agree otherwise in respect of the Wet Cranage Services:
(a) we will provide the Operator (which includes for clarity any Crane Operator, Rigger and Third Party Labourer) to you as part of the Wet Cranage Services; and
(b) 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.
8.4 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 Wet Cranage Services, including without limitation the existence of any underground or overhead cables and services and any unsafe or unstable ground or surface.
9. REPAIR SERVICES
9.1 This clause 9 applies where we are providing you with Repair Services.
9.2 You must advise us in writing (or as otherwise agreed) of the existence of any dangers, hazards or other relevant circumstances that a prudent customer would advise us before we provide you with the Repair Services, including without limitation:
(a) any faults or damage to the Goods which may cause injury to our employees or contractors; and
(b) where we are providing Repair Services at your Site, the existence of any hazards at the Site such as underground or overhead cables and services and any unsafe or unstable ground or surfaces.
9.3 We reserve the right to refuse to provide a Repair Service in the event that the Repair Goods:
(a) are inaccessible or accessing the Repair Goods would put us or our employees, agents and contractors at risk; or
(b) have not been installed in accordance with the manufacturer’s installation instructions, any applicable laws, standards or regulations.
9.4 You allow us to operate the Equipment, for the purpose of providing the Repair Services.
9.5 Repair Services at your Site
(a) This clause 9.5 applies where we are providing you with Repair Services at your Site.
(b) You agree to give clear and safe access to the Site to us and our employees, agents and contractors at an agreed time to supply the Repair Services.
(c) You will pay a service call out fee where the Repair Goods are not serviceable as a result of clause 9.3.
(d) All costs and expenses associated with making the Goods accessible for the Repair Service at the Site, such as restricted access or working at heights, may incur an additional cost.
(e) If you are not the owner of the Site, you represent and warrant to us, that you have obtained the consent of the owner of the Site for us to access the site for the purposes of providing the Repair Service.
(f) If requested by us, you agree to provide us with evidence of the consent obtained under clause (e).
9.6 You will indemnify us against all costs incurred or damage suffered by us or which is claimed against us arising from any breach of this clause 9.
10. COMPREHENSIVE INSURANCE FOR DRY CRANAGE SERVICES
10.1 This clause 10 applies where we are providing you with Dry Cranage Services.
10.2 You will during the Term maintain in the joint names of you and us a comprehensive insurance policy for damage (whether accidental or otherwise), loss, fire, theft, destruction of the Equipment to its full replacement value and which will include a public liability component of not less than AUD$20,000,000.00 in respect of any one single accident or event. You must effect such insurance prior to the Commencement Date and Time to the satisfaction of us.
10.3 You will not at any time during the Term do permit or suffer to be done any act, matter or thing whereby any insurances in respect of the Equipment or any other insurances required to be maintained pursuant to this Agreement may be vitiated or rendered void or voidable or whereby any claim may be declined.
10.4 You will comply with all terms, conditions and requirements relating to any insurance including but not limited to the due and punctual payment of all insurance premiums.
10.5 All policies of insurance liable or required to be effected by you under this Agreement will be taken out in such form as may be and with an insurance office or company of recognised responsibility approved by us.
10.6 You will, in respect of any policy of insurance to be effected by you under this Agreement, if so required produce to us the policy of insurance and the receipt of the last premium or a current renewal certificate.
10.7 Any monies which are or may be paid pursuant to a policy of insurance effected under this Agreement or otherwise must be paid to us who will apply such monies in such manner in our absolute discretion as we may determine.
10.8 You irrevocably authorise us to use your name and to act on your behalf in exercising any rights or instituting, carrying on and enforcing any legal proceedings which we think are desirable to protect our rights in the Equipment or to recover and/or compromise any claim for loss or damage under any insurance policy and give effectual releases and receipts for the insurance policy.
11. INDEMNITY – WET AND DRY HIRE
11.1 With respect to Wet Cranage Services and Dry Cranage Services you will indemnify us from and against all and any actions, claims (including Claims), demands, losses, damages, costs and expenses for which we becomes or may become liable in respect of arising from or in consequence of:
(a) loss, damage or injury from any cause whatsoever to any property or person caused or contributed to by the use of the Equipment by you notwithstanding that such use of the Equipment may be within the scope of the Permitted Use or by any servant agent or other persons;
(b) loss damage or injury from any cause whatsoever to property or persons occasioned or contributed to by any act, omission, negligent breach or default of you or any servant agent or other persons;
(c) the exercise or attempted exercise by us of any of your rights or powers under this Agreement or conferred by law; and
(d) without limiting clauses (a) to (c) the loss of value of the Equipment resulting from insufficient, inadequate or faulty maintenance service or repair of the Equipment which is not conducted in accordance with the terms of the relevant Equipment maintenance agreement.
11.2 You will indemnify us against any loss of (including any confiscation, seizure or repossession) or damage to or destruction of the Equipment howsoever caused.
12. YOUR RIGHT TO TERMINATE
12.1 Without limiting our right of termination at clause 17.2(a), 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.
12.2 If this Agreement is terminated by us under clause 17.2(a) or by you under clause 12.1, you grant us an irrevocable licence to enter your premises to inspect, remove, collect and do anything else to the Equipment if we reasonably believe you are in default under this Agreement. 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 Equipment your premises as contemplated in this clause.
13. WARRANTY – REPAIR SERVICES
13.1 Notwithstanding any other clauses in the Agreement, we warrant that in relation to the Repair Services:
(a) we have the requisite skills, experience and resources to perform the Repair Services in accordance with the Agreement; and
(b) we will perform the Repair Services in a competent, careful, proper, workmanlike and professional manner in accordance with the standard for such services applicable at the time or performance.
13.2 To the maximum permitted by law, we provide no other express or implied warranties in relation to the Services, including in relation to the performance of the Services.
13.3 To the maximum extent permitted by law, other than the warranties set out in these terms and conditions, we exclude any other warranty or condition which would otherwise be implied in relation to the supply of the Repair Services. To the extent permitted by law, we limit our liability to:
(a) in the case of Parts supplied during the provision of Repair Services:
(i) the replacement or repair of Parts or the supply of equivalent goods; or
(ii) the payment of the cost of replacing or repairing the Parts or of acquiring equivalent goods;
(b) in the case of Repair Services:
(i) the supply of the Repair Services again; or
(ii) the payment of the cost incurred by you in relation to the Repair Services.
13.4 This clause does not limit the warranties that a Consumer may (or may not) be entitled to receive under the Australian Consumer Law.
14. WARRANTY AND LIABILITY – WET CRANAGE SERVICES AND DRY CRANAGE SERVICES
14.1 With respect to the Wet Cranage Services and Dry Cranage Services 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 Services provided by us, and we will not be liable for any Claim that you may suffer in relation to the Services under this Agreement;
(b) our liability to you is limited to supplying the Services again or refunding to you the cost of the supply of the 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 of indirectly in connection with your use and possession of the Equipment under this Agreement.
14.2 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 Services;
(b) you agree to meet any costs and liabilities arising out of the movement of the Equipment over any footpaths, nature strips, driveways and similar areas;
(c) if you request that the Equipment 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 Equipment is adequately secured during this time. You will
indemnify us for any loss or damage caused to the Equipment at any time while it remains at that location and is not in use, including any Consequential Loss while the Equipment is being repaired (which for this purpose will be the normal Fee for the use of the Equipment by you under this Agreement).
14.3 if the Services include Wet Cranage Services, you will pay the cost of travelling of the Operator and any other person involved in the provision of the Wet Cranage Services either from the Depot, or their residence as the case may be.
15. PPSA
15.1 You acknowledge and agree that the Agreement, in relation to the Wet Cranage Services and the Dry Cranage Services, constitutes a PPS Lease for the purposes of the PPSA.
15.2 You acknowledge and agree that:
(a) the Agreement grants the Owner a purchase money security interest (Security Interest) in the Equipment 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) you 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) you will not change its name in any form or other details on the PPSR without first notifying you; and
(e) you 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.
15.3 Without affecting any other indemnity or rights under the Agreement, if you are in breach of any of your obligations under clause 15.2, you must indemnify us against all loss or expense suffered by us as a consequence of that breach.
15.4 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.
15.5 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.
15.6 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.
15.7 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).
15.8 You may not grant or allow anyone else to register any Security Interest over the Equipment, or any proceeds from the Equipment or any right or benefit of you under or pursuant to this Agreement as security for any debt liability or obligation.
15.9 Unless otherwise defined in this Agreement, the terms and expressions used in this clause 15 have the meanings given to them, or by virtue of, the PPSA.
16. PRIVACY
16.1 We may collect your personal information in connection with our Agreement with you. We will manage the personal information that we collect in accordance with our Privacy Policy (a copy of which is available on our website).
17. DEFAULT
17.1 You are in default under this Agreement if:
(a) you breach any term of this Agreement and have not rectified such default within 7 days’ notice of default;
(b) you do not make a payment in full by the due date as set out in an invoice or as otherwise required by us;
(c) to the extent permitted by law, you commit an Insolvency Event;
(d) we reasonably form the view that you have or are likely to endanger the safety and condition of the Operator and/or the Equipment.
17.2 If you are in default under this Agreement then:
(a) we may notify you that the Agreement is terminated with immediate effect;
(b) upon our demand you will immediately pay us the Total Fees owing under this Agreement;
(c) we may enter your premises to inspect, remove, collect and do anything else to the Equipment 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 Equipment your premises as contemplated in this subclause; and
(d) immediately cease providing any 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 to provide services.
17.3 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 Equipment to you because we have reasonably formed the view that you have or are likely to breach any of the provisions of this Agreement.
18. GENERAL MATTERS
18.1 To the extent of any inconsistency between these terms and conditions (as amended from time to time) and any other terms and conditions these terms and conditions will prevail.
18.2 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.
18.3 A waiver of any of our rights under this Agreement does not occur unless we notify you in writing.
18.4 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.
18.5 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.
18.6 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.
18.7 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.
18.8 We will endeavour to make a copy of these terms and conditions available on our website.
18.9 You acknowledge and agree that:
(a) you have advised us of the particular purpose for which the Services are required and you are satisfied that the Equipment 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 Services;
(c) we have not given you any express warranty or representation as to the condition, suitability, quality or fitness for purpose of the Equipment or 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 Services and to use and operate the Equipment 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 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; and
(h) if you enter into this Agreement as agent, you will be deemed to be duly authorised 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 Equipment and the 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.
19. MEANINGS
The following defined terms and their meanings appear in this Agreement:
19.1 Australian Consumer Law means Schedule 2 to the Competition and Consumer Act 2010 (Cth), as amended from time to time.
19.2 Agreement means this Agreement and comprises the Front Page and these terms and conditions;
19.3 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;
19.4 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;
19.5 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);
19.6 Crane Operator means the crane operator or operators provided by us as part of the Wet Cranage Services to operate and manage the Crane in accordance with your reasonable supervision and direction;
19.7 Commencement Date and Time means the commencement date and time as agreed between the parties from time to time;
19.8 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;
19.9 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.
19.10 Depot means one of our depots where we store our Equipment;
19.11 Dry Cranage Services means the Equipment being hired to you under this Agreement for the Permitted Use;
19.12 Equipment means the crane, plant, equipment and/or accessories being hired to you, or made available by us in connection with this Agreement;
19.13 Fee means the fee payable by you for the Services which may be provided from time to time for the Term at the standard rate as determined from time to time by us;
19.14 Front Page means the front page of this document;
19.15 Goods means all goods and plant and equipment including any crates, cases, pallets or any other type of container;
19.16 Government Agency means any government or semi-government agency, tribunal, board, any
statutory authority or self-governing body having regulatory authority;
19.17 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.
19.18 GST Law has the same meaning as the definition of “GST law” in A New Tax System (Goods and Services Tax) Act 1999;
19.19 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:
(i) an order is made that it be wound up or that a receiver be appointed to it or any of its assets; or
(ii) 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) 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;
19.20 Operator means the Crane Operator(s), Rigger and / or Third Party Labourer which may be engaged by us in connection with the Wet Cranage Services and this Agreement;
19.21 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;
19.22 Order means an order placed by you for a Service which may be evidenced in a purchase order, quote, invoice, docket, or other written or verbal agreement;
19.23 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;
19.24 Overtime Work means work performed by an Operator pursuant to this Agreement which is in excess of 8 hours in a given day;
19.25 Parts means any spare parts which are supplied to you in the course of providing the Repair Services to repair the Repair Goods;
19.26 Permitted Use means the use of the Services as agreed by you in connection with this Agreement;
19.27 PPSA means the Personal Property Securities Act 2009 (Cth) as amended;
19.28 Repair Goods means the Goods subject to the Repair Service;
19.29 Repair Services means the repair of Equipment in accordance with this Agreement;
19.30 Rigger means the rigger which may be provided by us in connection with the provision of rigging services for the Equipment;
19.31 Security Interest has the same meaning as defined in the PPSA;
19.32 Services means the Dry Cranage Services, Wet Cranage Services and/or Repair Services which may be provided from time to time by us to you in connection with this Agreement;
19.33 Site means your address as set out on the front page of this agreement or other nominated premises where Repair Services are performed;
19.34 Supply means a supply within the meaning of section 9-10 of the GST Law;
19.35 Third Party Labourer means any third party labourer we may engage to assist with the carrying out of the Wet Cranage Services or otherwise in connection with this Agreement.
19.36 Term means the period the Services are being provided to you in connection with this Agreement, which may be extended by agreement of the parties or in accordance with this Agreement;
19.37 Total Fees means the sum of the Fees and Charges and other amounts owing by you to us for the Services provided in connection with this Agreement (including reimbursable costs or expenses) and includes the Operator’s Fees for Wet Cranage Services;
19.38 Wet Cranage Services means the handling, lifting, carriage, transportation or delivery of Goods and / or operation of the Crane for the Permitted Use as agreed from time to time by the parties for where any rigging services or other services are carried out by us;
19.39 We or us means the Crane Services Pty Ltd ACN 109 586 647 for the Crane Services Trust ABN 99 339 101 640 trading as Crane Services Pty Ltd and includes any sub-contractors or agents of us, and our has a corresponding meaning; and
19.40 You means each person named as the Customer on the front page, if there is more than one, you means each of the persons separately and jointly, and your has a corresponding meaning.