1.1 These terms and conditions apply to any and all agreements for the provision of equipment hire by White Label Hire Pty Ltd ("WLH") and supersede any contrary terms and conditions of the Customer.
- Definitions and Interpretation
2.1 "Commencement" shall mean the date when either: (1) You take possession of the Equipment; or (2) if You request delivery and collection of the Equipment, the time We deliver the Equipment to the address You provide to Us in the Hire Schedule, whichever occurs first.
"Customer/ You/ Your" shall mean any person or entity that enters into a Hire Agreement with WLH for the hiring of Equipment as named in the Hire Schedule and includes the person, firm, organisation, partnership, corporation or trust hiring from Us.
"Equipment" means any of the WLH Equipment provided to the Customer.
"Hire Agreement" means these terms and conditions of hire together with: (1) any credit application you completed and submitted to WLH; (2) any guarantee, indemnity and charge you completed and submitted to WLH; (3) each Hire Schedule provided to you by WLH, whether signed or not; and (4) any special terms specific to the type of equipment you have hired attached to your Hire Schedule.
"Hire Charge" means the amounts shown on the Hire Schedule payable by the Customer to hire the Equipment.
"Hire Period" means from Commencement until the end of the period shown on the Hire Schedule. The Hire Period may only be extended if the Customer requests it and if WLH agrees. WLH may issue and require the Customer to sign an amended Hire Schedule for any extension of the Hire Period. WLH may in its absolute discretion refuse any request for an extension of the Hire Period.
"Hire Schedule" means a document which WLH may require the Customer to sign (or accept in a way WLH requires) including particulars of the Equipment and the Hire Period and such other information as WLH may decide to require.
"WLH / We/ Us / Our" means White Label Hire Pty Ltd.
- WLH Obligations
3.1 WLH will: (1) Allow the Customer to take and use the Equipment for the Hire Period; (2) Provide the Equipment to the Customer clean and in good working order and condition; and (3) Collect the Equipment from the Customer if specified in the Hire Schedule.
- Obligations of the Customer
4.1 The Customer must: (1) Deliver the Equipment to WLH when it is due back at its expense or grant WLH access to collect its Equipment on the due date for collection if collection is specified in the Hire Schedule; (2) Return the Equipment to WLH clean and in good repair and condition (if You do not properly clean the Equipment We will charge you a cleaning fee in accordance with clause 6); (3) Satisfy itself at Commencement that the Equipment is suitable for its purposes; (4) Operate the Equipment safely, strictly in accordance with the law, only for its intended use, and in accordance with any manufacturer’s instructions whether supplied by WLH or posted on the Equipment or posted on the WLH Website; and (5) at all times during the Hire Period store the Equipment safely and securely and protected from theft, seizure, loss or damage.
4.2 The Customer will indemnify WLH and keep WLH indemnified from all injury and/or damage caused or contributed to by the Customer to persons and property in relation to the Equipment and its operation and have adequate insurance to cover all liabilities incurred as a result of the use of the Equipment.
4.3 Each indemnity in this Hire Agreement is a continuing obligation, separate and independent from the other obligations of the parties and survives termination, completion and expiration of this Hire Agreement.
4.4 The Customer must ensure that: (1) any person collecting or taking delivery of Equipment on behalf of the Customer is authorised by the Customer to do so and the Customer will not allege that any such person is not so authorized; (2) all equipment loaded in or on the Customer’s vehicle are safely secured, and will indemnify WLH in respect of any injury and/or damage caused by items falling from any vehicle or trailer operated by or on behalf of the Customer; and (3) ensure that all persons operating or erecting the Equipment are suitably instructed in its safe and proper use and where necessary hold a current certificate of competency and/or are fully licensed if required by law to do so.
4.5 The Customer must: (1) conduct a thorough hazard and risk assessment before using the Equipment and comply with all Occupational Health and Safety laws relating to the Equipment and its operation; (2) operate the Equipment within safe operating guidelines; (3) promptly report and provide full details to WLH of any accident or injury occurring or damage to the Equipment; (4) not use the Equipment for any illegal purpose.
4.6 If You collect or receive the Equipment (whichever is applicable) and find that it is broken, damaged and/or defective, You must notify Us within 24 hours after You collect or receive the Equipment. If You do not notify Us within this period We are entitled to assume that the Equipment You collected or received was in good order and condition.
4.7 You warrant that the particulars provided in the Hire Schedule are true and correct in every respect, are not misleading in any way, without limitation by omission and undertake to advise WLH promptly of any changes to the particulars provided.
- The Customer must NOT;
5.1 The Customer must not: (1) Tamper with, alter, modify, damage or repair the Equipment; (2) Lose, sub-lease or part with possession of the Equipment; (3) Rely upon any representation relating to the Equipment or its operation other than those contained in this Hire Agreement; (4) Exceed the recommended or legal load and capacity limits of the Equipment; (5) Use or carry any illegal, prohibited or dangerous substance in or on the Equipment; and (6) deface, remove, vary or erase any identifying marks, number, or notice on the Equipment.
- Payments by the Customer to WLH
6.1 On or before the Commencement (or as otherwise specifically agreed with WLH), the Customer will pay the Hire Charge and any consumables We supply to You.
6.2 Immediately on request by WLH, the Customer will pay: (1) the new list price of any Equipment which is for whatever reason not returned to WLH or damaged so as to make its repair uneconomical; (2) all costs incurred in cleaning the Equipment if not returned in clean state; (3) the full cost of repairing any damage to the Equipment whilst in the Customer’s possession; (4) stamp duties, GST any other taxes or duties payable in respect of this Hire Agreement or arising from the Customer's use of the Equipment; (5) all reasonable costs incurred by WLH in delivering and recovering possession of the Equipment unless agreed otherwise in the Hire Schedule; (6) a late payment fee calculated daily at 3% per month on all amounts owing by the Customer not paid on time; (7) any expenses and legal costs (including commission payable to a commercial agent) incurred by WLH in enforcing this Hire Agreement due to the Customers default; (8) the Hire Charge calculated on a daily basis multiplied by 1.5 times for each and every day the Equipment is not returned to WLH after the due date for return set out in the Hire Schedule; and (9) the amount calculated in accordance with clause 6.5 where applicable.
6.3 Without limiting the ability of WLH to recover all amounts owing to it, the Customer authorises WLH to charge any amounts owing by the Customer to any credit card or account details of which are provided to WLH.
6.4 WLH will not refund any Hire Charge to the Customer if the Customer elects to return the Equipment prior to the end of the Hire Period, regardless of reason.
6.5 If the Customer shall cancel the Hire Agreement within the following period prior the proposed Commencement date the Customer agrees to pay WLH the Hire Charge amount calculated as follows: (1) If cancelled less than 1 month before the proposed Commencement date 100% of the Hire Charge; (2) If cancelled less than 3 months but more than 1 month before the proposed Commencement date 75% of the Hire Charge; (3) If cancelled less than 6 months but more than 3 months before the proposed Commencement date 50% of the Hire Charge; (4) and if cancelled more than 6 months before the Commencement date 25% of the Hire Charge. The Customer acknowledges and agrees that the above amounts are a fair estimate of the loss suffered by WLH in reserving the Equipment for use by the Customer to the exclusion of other potential customers of WLH.
- PPS Law
7.1 This clause applies to the extent that this Hire Agreement provides for a 'security interest' for the purposes of the Personal Property Securities Act 2009 (Cth) ("PPS Law"). References to PPS Law in this agreement include references to amended, replacement and successor provisions or legislation.
7.2 If WLH does not have at Commencement a PPS Law registration ensuring a perfected first priority security interest in the Equipment, the Hire Period, (including any extension of the Hire Period or the aggregate of consecutive Hire Periods during which the Customer has substantially uninterrupted possession) may not despite anything else in this document or any Hire Schedule be longer than: (1) 90 days in the case of Equipment which may or must be described by serial number in a PPS Law registration; or (2) a year in any other case.
7.3 WLH may register its security interest in the Equipment. The Customer must do anything (such as obtaining consents and signing documents) which WLH requires for the purposes of: (1) ensuring that WLH’s security interest is enforceable, perfected and otherwise effective under the PPS Law; (2) enabling WLH to gain first priority (or any other priority agreed to by WLH in writing) for its security interest; and (3) enabling WLH to exercise rights in connection with the security interest.
7.4 The rights of WLH under this document are in addition to and not in substitution for WLH’s rights under other law (including the PPS Law) and WLH may choose whether to exercise rights under other law, as it sees fit. To avoid any doubt about it WLH security interest will attach to proceeds.
7.5 To the extent that Chapter 4 of PPSA applies to any security interest under this agreement, the following provisions of the PPS Law do not apply and, for the purposes of section 115 of the PPS Law are “contracted out” of this agreement in respect of all goods to which that section can be applied: section 95 (notice of removal of accession to the extent it requires WLH to give a notice to the Customer); section 96 (retention of accession); section 121 (4) (notice to grantor); section 125 (obligations to dispose of or retain collateral); section 130 (notice of disposal to the extent it requires WLH to give a notice to the Customer); section 129(2) and 129(3); section 132(3)(d) (contents of statement of account after disposal); section 132(4) (statement of account if no disposal); section 135 (notice of retention); section 142 (redemption of collateral); and section 143 (re- instatement of security agreement).
7.6 The following provisions of the PPS Law; section 123 (seizing collateral); section 126 (apparent possession); section 128 (secured party may dispose of collateral); confer rights on WLH. Customer agrees that in addition to those rights, WLH shall, if there is default by Customer, have the right to seize, purchase, take possession or apparent possession, retain, deal with or dispose of any goods, not only under those sections but also, as additional and independent rights, under this Hire Agreement and the Customer agrees that WLH may do so in any manner it sees fit including (in respect of dealing an disposal) by private or public sale, lease or license.
7.7 The Customer waives its rights to receive a verification statement in relation to registration events in respect of commercial property under section 157 of the PPS Law.
7.8 WLH and the Customer agree not to disclose information of the kind that can be requested under section 275(1) of the PPS Law. The Customer must do everything necessary on its part to ensure that section 275(6)(a) of the PPS Law continues to apply. The agreement in this sub-clause is made solely for the purpose of allowing to WLH the benefit of section 275(6)(a) and WLH shall not be liable to pay damages or any other compensation or be subject to injunction in respect of any actual or threatened breach of this sub-clause.
7.9 Customer must not dispose or purport to dispose of, or create or purport to create or permit to be created any 'security interest' (as defined in PPS Law) in the Equipment other than with the express written consent of WLH.
7.10 Customer must not lease, hire, bail or give possession , or sub-hire the Equipment to anyone else unless WLH (in its absolute discretion) first consents in writing. Any such sub-hire must be in writing in a form acceptable to WLH and must be expressed to be subject to the rights of WLH under this agreement. Customer may not vary a sub-hire without the prior written consent of WLH (which may be withheld in its absolute discretion).
7.11 Customer must ensure that WLH is provided at all times with up to date information about the sub-hire including the identity of the sub-hirer, the terms of and state of accounts and payment under the sub-hire and the location and condition of the Equipment.
7.12 Customer must take all steps including registration under PPS Law as may be required to: (1) ensure that any security interest arising under or in respect of the sub-hire is enforceable, perfected and otherwise effective under the PPS Law; (2)enabling the Customer to gain (subject always to the rights of WLH) first priority (or any other priority agreed to by WLH in writing) for the security interest; and (3) enabling WLH and the Customer to exercise their respective rights in connection with the security interest.
7.13 To assure performance of its obligations under this agreement, the Customer hereby gives WLH an irrevocable power of attorney to do anything WLH considers the Customer should do under this agreement. WLH may recover from Customer the cost of doing anything under this clause 7, including registration fees.
- Exclusion of Warranties and Liabilities.
8.1 Where the Australian Consumer Law applies, the Customer has the benefit of guarantees in relation to the hire of the Equipment which cannot be excluded.
8.2 Where the Australian Consumer Law applies and the goods are not of a kind ordinarily acquired for personal domestic or household use or consumption, WLH liability in respect of any guarantee is limited to the replacement or of the Equipment for the Hire Period or refund of the Hire Charge.
8.3 To the extent that the Australian Consumer Law (or any other law which cannot be excluded) does not apply WLH makes no representations and gives no warranties other than those set out in this Hire Agreement, and will not be liable to the Customer for any damages, costs or other liabilities whatsoever (including for consequential loss, indirect or special loss and damage, loss of business) in relation to the hiring of the Equipment by the Customer.
- Breach of Hire Contract by Customer
9.1 If the Customer breaches any clause whatsoever of this Hire Agreement, or becomes bankrupt, insolvent or ceases business then WLH shall be entitled to: (1) terminate this Hire Agreement; and/or (2) sue for recovery of all monies owing by the Customer; and/or (3) repossess the Equipment and upon receiving written notice from Us and You expressly consent to Us entering Your premises for the purpose of recovering Our Equipment.
9.2 The Customer indemnifies WLH in respect of any damages, costs or loss resulting from a breach by the Customer of any provision of this Hire Agreement
10.1 The Customer must immediately check all Hire Charges, and any disputes in relation to those Hire Charges must be communicated to WLH in writing within 7 days of receiving the Hire Charge tax invoice. In the event that no communication is received from the Customer within that 7 day period, the Hire Charges are deemed to be accepted by the Customer.
10.2 If a dispute arises relating to this Hire Agreement, the hiring or use of the Equipment (except in regard to payments due to WLH), the parties agree to negotiate to settle the dispute with the assistance of the Hire and Rental Association of Australia before litigation.
WLH will comply with the Australian Privacy Principles in all dealings with Customers. A copy of the WLH Privacy Statement is available upon request or by visiting our website.
- Force Majeure
12.1 Subject to clause 12.2 neither party will be responsible for any delays in delivery or collection due to causes beyond their control including but not limited to acts of God, war, terrorism, mobilisation, civil commotion, riots, orders or regulations of governments, fires, floods or strikes.
12.2 Nothing in clause 12.1 will limit or exclude Your responsibility and liability under the Hire Agreement for Equipment that is lost, stolen or damaged during the Hire Period as a result of Your conduct or negligence.
13.1 If any part of this Hire Agreement becomes void or unenforceable for any reason then that part will be severed with the intent that all remaining parts will continue to be in full force and effect and be unaffected by the severance of any other parts.
- No Waiver of Rights
14.1 No delay or omission by a party to exercise any right, power or remedy available to that party as a result of a continuing breach or default under the Hire Agreement will impair any such right, power or remedy, nor will it be construed to be a waiver of that party’s right to take action or make a claim in respect of a continuing breach or default.
15.1 The amount of the Hire Charge in this Hire Agreement and all other fees, charges and expenses referred to in this Hire Agreement and the Hire Schedule are exclusive of Goods and Services Tax (GST) unless otherwise stated.
15.2 Where any Hire Charge, fees, charges and expenses is provided by WLH to the Customer and is subject to GST, GST of 10% (or such other amount as ay be required by the Australian Taxation legislation) shall be added and charged to the Customer.
- Governing Law
16.1 This Contract is governed by the law of the state of New South Wales, and the parties submit to the jurisdiction of the courts of that State.