Terms & Conditions of Hire

1. Definitions
   • “ACL” means the Australian Consumer Law Schedule of the Competition and Consumer Act 2010 (Cth) and its associated Regulations as amended.
   • “Agreement” means this document setting out the terms and conditions associated with the hire of Equipment to the Hirer from the Owner.
   • “Business Day” means a day that is not a Saturday or Sunday or a Public Holiday in Brisbane, Queensland.
   • “Consumer” is defined in the ACL.
   • “Dry Hire” means the hire of Equipment only, without an operator, fuel, oil, lubricants, servicing or maintenance personnel supplied by the Owner, unless otherwise agreed in writing between the parties.
   • “Equipment” includes any equipment provided by the Owner to the Hirer under this Agreement, including any associated or attached tools, accessories and parts available for hire.
   • “Force Majeure Event” includes, but is not limited to:
     • acts of God, such as extreme weather events including cyclones, fire, earthquakes, landslides or other adverse weather conditions;
     • epidemics as characterised by the Australian or Queensland Government Department of Health, and pandemics as characterised by the World Health Organisation (or the Australian Government Department of Health) (including restrictions, regulations, or directives imposed by the Commonwealth or any State Government or Authority);
     • sector-wide industrial disputes involving key staff;
     • war, invasion, hostilities (whether war is declared or not), terrorist threats or acts, riot or other civil unrest;
     • action or inaction of any government or government authority (including any court of competent jurisdiction);
     • national emergency (whether in fact or law); or
     • strikes, industrial disturbances, or other labour difficulty, whether or not involving employees of the party concerned.
   • “GST” means Goods and Services Tax as defined within the A New Tax System (Goods and Services Tax) Act 1999 (Cth).
   • “Hire Charges” has the meaning given to that term in clause 1.
   • “Hire Period” has the meaning given to that term in clause 3.
   • “Minimum Hire Period” means the minimum hire period specified in Schedule 1.
   • “Owner” means Omni-Tuff Group Pty Ltd ACN 620 859 556 trading as Daywalk.
   • “PPSA” means the Personal Property Securities Act 2009 (Cth) and its associated Regulations as amended.
   • “PPSR” means the Personal Property and Securities Register.
   • “Weekly Hire Rate” means the rate specified in Schedule 1.
2. ACL
   • Nothing in this Agreement is intended to have the effect of excluding, restricting, or modifying any applicable provisions of the ACL or any State or Territory legislation applicable to the provision of goods or supply of service which cannot be excluded, restricted or modified.
   • Where the Hirer is supplied the Equipment as a Consumer, this Agreement will be subject to any laws or legislation governing the rights of Consumers and will not affect the Consumer’s statutory rights.
3. Quotation and Agreement
   • If the Owner has provided the Hirer with a written Quotation setting out the Equipment, hire rates, hire period and any specific terms, a binding agreement is formed on the earlier of when the Hirer accepts the Quotation in writing, signs this Agreement or takes possession of the Equipment. These terms apply exclusively to every Agreement, including any agreement formed upon acceptance of a Quotation.
   • In the event of any inconsistency between the Quotation and these terms, the Quotation prevails to the extent of the inconsistency.
   • The Hirer agrees to hire the Equipment on Dry Hire for the Minimum Hire Period or such longer period agreed in writing between the Owner and the Hirer (Hire Period) and notwithstanding clause 1, the Hirer must sign this Agreement and return it to the Owner prior to commencement of the Hire Period.
4. Hire Charges and Payment
   • The Hirer agrees to pay the Weekly Hire Rate to the Owner for the Equipment, together with any other payments specified in Schedule 1 or this Agreement (Hire Charges).
   • Hire Charges are invoiced monthly in advance at the rates set out in the Schedule 1. Payment is due within 7 days of the date of invoice.
   • Unless otherwise agreed, the obligation on the Hirer to pay the Hire Charges continues until:
     • All the Equipment is returned to the Owner in the condition and state it was in as at the commencement of the Hire Period; or
     • Where the Equipment has been damaged or destroyed, until the Equipment has been repaired or restored to full operational condition or the Hirer (or the Hirer’s insurer) has paid the current replacement price to the Owner for the Equipment.
   • Payment may be made by electronic funds transfer, or by any other method as agreed to between the Owner and the Hirer.
   • The Owner may in its discretion allocate any payment received from the Hirer towards any invoice that the Owner determines and may do so at the time of receipt, or at any time afterwards. On any default by the Hirer, the Owner may re-allocate any payments previously received and allocated. In the absence of any payment allocation by the Owner, payment will be deemed to be allocated in such manner as preserves the maximum value of the Owner’s Purchase Money Security Interest (as defined in the PPSA) in the Equipment.
   • The Hirer shall not be entitled to set off against, or deduct from the Price, any sums owed, or claimed to be owed, to the Hirer by the Owner nor to withhold payment of any invoice because part of that invoice is in dispute. Once in receipt of an invoice for payment, if any part of the invoice is in dispute, the Hirer must notify the Owner in writing within three (3) Business Days. The invoice shall remain due and payable for the full amount, until such time as the Owner investigates the dispute claim, no credit shall be passed for refund until the review is completed. Failure to make payment may result in the Owner placing the Hirer’s account into default and subject to default interest in accordance with clause 26.1.
   • Unless otherwise stated, the Hire Charges do not include GST. If a supply made under this Agreement is a taxable supply, the Hirer must, in addition to the consideration payable for the taxable supply, pay to the Owner an amount equal to any GST payable on such taxable supply upon receipt of a valid tax invoice.  The Hirer must pay GST, without deduction or set off of any other amounts, at the same time and on the same basis as the Hirer pays the consideration for the taxable supply. In addition, the Hirer must pay any other taxes and duties that may be applicable in addition to the Hire Charges except where they are expressly included in the Hire Charges.
   • The Hirer acknowledges and agrees that the Owner may charge additional fees or vary the Hire Charges for providing the Equipment if:
     • a variation to the Equipment which is to be supplied is requested by the Hirer; or
     • as a result of an increase in the Owner’s costs due to changes in statutory, Government, or local body charges, taxes, levies, etc. with respect to the cost of Equipment, which are outside the control of the Owner; or
     • the Hire Period extends beyond 12 months, by the percentage increase in the Consumer Price Index (All Groups-Brisbane) or such other amount agreed between the Owner and the Hirer on each the anniversary of the commencement of the Hire Period.
5. Delivery, Storage and Return of Equipment
   • Should the Owner agree to provide delivery for the Equipment (at the Owner’s absolute discretion), the Owner reserves the right to charge for delivery of Equipment to the Hirer (or as directed by the Hirer) and the Hirer must pay the costs of delivery where delivery charges have been included in the Quotation or Schedule 1.
   • The Hirer warrants that the location upon which the Equipment is to be delivered or removed is safe and that sufficient and unimpeded access will be provided to the Owner for the delivery or removal of the Equipment. The Owner can refuse to deliver or remove the Equipment, and will not be liable to the Hirer, if the Hirer fails to provide adequate or safe access and in which case, the Hirer will be responsible for any loss, costs or charges that the Owner may suffer or incur as a consequence.
   • The Hirer acknowledges and agrees that the Owner may (in its sole discretion) use the services of a third-party delivery company to deliver the Equipment to the Hirer.
   • The Hirer shall be deemed to have accepted delivery and liability for the Equipment immediately after collection of the Equipment or delivery to the address nominated by the Hirer.
   • Delivery of the Equipment to a third party nominated by the Hirer is deemed to be delivery to the Hirer.
   • Any period or date for delivery of Equipment stated by the Owner either in a Quotation or this Agreement is an estimate only. If the Owner (or a third-party transport company) cannot complete any delivery by any estimated date, the Owner will use reasonable endeavours to assist with completing the delivery within a reasonable time.
   • The Owner will use its reasonable endeavours to meet any estimated dates for delivery of the Equipment but will not be liable for any loss or damage suffered by the Hirer or any third party for failure to meet any estimated date or to deliver the Equipment at all, where due to circumstances beyond the control of the Owner.
   • The Hirer must keep the Equipment at the location notified to the Owner prior to collection or delivery of the Equipment and must not relocate it without the Owner’s prior written consent. The Hirer is solely responsible for the safe and secure storage of Equipment.
   • If the Hirer fails to return the Equipment at the end of the Hire Period (or such earlier date of termination) the Owner or the Owner’s agent may (as the invitee of the Hirer) enter upon and into any land and premises where the Owner believes the Equipment is kept and recover possession of the Equipment and in doing so, the Hirer acknowledges and agrees that the Owner will not be deemed to be relinquishing any of its rights as a creditor when exercising any of its rights as owner of the Equipment under this clause and the Owner’s security interest will continue in full force and effect. The authority in this clause allows the Owner to use such force as is reasonable required to open doors or such other entrances to gain access to the Equipment.
6. Equipment Condition and Damage
   • The Hirer acknowledges that:
     • the Equipment is supplied in good working condition, subject to fair wear and tear; and
     • it is responsible for the Equipment from delivery or collection (as the case may be) until its return to the Owner’s nominated location at expiry of this Agreement or earlier termination.
   • The Hirer must, at its own expense:
     • ensure that, where applicable, all fluids and other consumables for the Equipment are kept topped up and replaced as and when required;
     • allow the Owner or its nominee access to any place where the Equipment is kept at any reasonable time for any purpose relating to this Agreement, including testing or inspection of the Equipment;
     • properly store and protect the Equipment from damage, loss or destruction and notify the Owner promptly if the Equipment is damaged, lost or destroyed;
     • keep the Equipment clean; and
     • comply with the instructions and recommendations relating to the Equipment or the proper operation of the Equipment given by the Owner or manufacturer of the Equipment.
   • For the avoidance of doubt, unless otherwise expressly agreed in writing, the Hirer is not responsible for undertaking routine servicing, maintenance or repairs to the Equipment (other than cleaning or anything else expressly provided by this Agreement). However, nothing in this clause relieves the Hirer from liability for any loss, damage, repair or maintenance required as a result of the Hirer’s misuse, negligence, improper operation, failure to comply with the Owner’s instructions or any breach of this Agreement.
   • The Hirer must not, without the Owner’s written consent:
     • make any replacement, alteration or addition of any nature without the prior written consent of the Owner, or cause any warranty over the Equipment to be invalidated without the prior written consent of the Owner;
     • remove, obscure or tamper with any identifying plates, serial numbers, insignia or markings in relation to the Equipment, and must ensure they remain legible at all times, so that it cannot be identified;
     • alter, add to or install anything on the Equipment;
     • use the Equipment for any purpose which is unlawful, or which might prejudice the Owner’s interest in the Equipment, or invalidates any insurance or warranty in relation to the Equipment;
     • install the Equipment in any manner that would cause it to become a fixture to land;
     • agree, attempt, offer or purport to sell, assign, sublet, lend, pledge, mortgage, hire or otherwise deal with the Equipment or part with or attempt to part with the personal possession of the Equipment; or
     • create any encumbrance, accession, charge, security interest or lien of any kind on the Equipment or any part of the Equipment or to remain on the Equipment except a repairer’s lien in which case the Hirer must take the necessary steps to have such lien removed or satisfied immediately and, in any event, immediately upon demand by the Hirer.
   • The Owner may:
     • make claims on insurance policies on the Equipment, and do anything necessary to complete them;
     • sue anyone for damage to or destruction or loss of the Equipment during the Hire Period in the name of the Owner;
     • receive insurance proceeds and other compensation in respect of the Equipment;
     • use money received for damage to or loss or destruction of the Equipment for any purpose, including:
     • to replace, repair or reinstate the Equipment;
     • to pay any amount payable by the Hirer to the Owner under this Agreement, in full or in part;
     • to pay any other money which the Hirer must pay to the Owner; and
     • to pay any money which the Hirer must pay under this Agreement to another person including insurance premiums, licence fees and other outgoings.
   • Where any breach by the Hirer of this Agreement causes damage to the Equipment or the Equipment is not otherwise returned in the condition required by this Agreement, the Hirer acknowledges and agrees that they will be liable to pay the Owner’s associated costs and damages. Furthermore, where any breach of this Agreement by the Hirer causes:
     • major structural damage (including (without limitation) damage compromising structural integrity, load-bearing capacity, or safe working condition) or major coating damage (for example, widespread corrosion, stripping, or degradation of protective coatings beyond normal surface wear) will be charged at 100% of the Equipment’s full replacement cost; and
     • minor damage (including (without limitation) costs of cleaning, superficial scratches, minor paint wear, or small cosmetic dents not affecting structural integrity) then such costs associated with the damage or cleaning will be assessed at the Owner’s discretion (acting reasonably) based on the repair or cleaning cost. The Owner will provide a written damage assessment before issuing an invoice to the Hirer.
7. Title, Risk and Insurance
   • The Hirer acknowledges and agrees that the legal and equitable title ownership and property in any Equipment hired in accordance with this Agreement, remains with the Owner absolutely at all times. The Hirer shall hold the Equipment as bailee for the Owner.
   • To the maximum extent permitted by law, the Hirer assumes all risks and liability for the Equipment and the use, maintenance, repair and storage of the Equipment (including liability for injury to any person or damage to any property, whether direct or consequential) until the Equipment is returned to the Owner.
   • The Hirer shall indemnify and keep indemnified the Owner from and against any claim, demand, suit, action or proceeding that may be brought by any person against the Owner or its employees and agents in respect of:
     • loss of, or damage to, the Equipment;
     • any damage to property or death of, or injury to, any person caused directly or indirectly by the Hirer or the Equipment while in use by the Hirer or its employees and agents;
     • any other thing in relation to which the Hirer has assumed the risk or liability under clause 2; or
     • breach of this Agreement by the Hirer or its employees and agents,

except to the extent caused by the negligence or wilful act or omission or breach of this Agreement by the Owner.

• The Hirer must at its own cost:
  • maintain insurance for the Equipment for its full replacement value against loss, theft and damage;
  • maintain public liability insurance of not less than $20 million per occurrence (or such other amount reasonably required by the Owner);
  • provide certificates of currency upon request; and
  • note the Owner’s interest in the Equipment on each policy of insurance.
• If any Equipment is damaged or destroyed following delivery, the Owner is entitled to receive all insurance proceeds payable for the Equipment and the Hirer is responsible for the payment of any excess or deductible payable under the relevant policy of insurance that provides cover for the loss or claim. The production of this Agreement by the Owner is sufficient evidence of the Owner’s right to receive the insurance proceeds without the need for any person dealing with the Owner to make further enquiries. Where such insurance proceeds received are less than the loss and damage suffered by the Owner, the Hirer remains liable to the Owner for any shortfall between the amount of such loss suffered by the Owner (including the repair or replacement value of the Equipment) and the amount of the insurance proceeds received by the Owner.

8. Force Majeure
   • Neither party shall be liable for any default resulting from a Force Majeure Event or other event beyond the reasonable control of either party.
   • If a party (Affected Party) is prevented, in whole or in part, from carrying out its obligations under this Agreement (other than the obligation to make payments in accordance with clause 4 and this clause) (Affected Obligations) as a result of a Force Majeure Event:
     • as soon as reasonably practicable after the Force Majeure Event arises the Affected Party must notify the other party of the Force Majeure Event;
     • to the extent and for the period that the Affected Party is precluded by the Force Majeure Event from complying with its obligations under this Agreement, the Affected Obligations will be suspended for the duration of the Force Majeure Event;
     • the Affected Party must:
       • use reasonable endeavours to overcome the effects of the Force Majeure Event as soon as reasonably practicable; and
       • take all reasonable steps to mitigate the impact of the Force Majeure Event on the Affected Obligations;
     • unless this Agreement is terminated, the Affected Party must resume performance of the Affected Obligations as soon as possible after the Force Majeure Event ceases.
   • If a Force Majeure Event continues for a continuous period of 30 days or more, then either party may terminate this Agreement by 7 days written notice to the other.
   • For the avoidance of doubt, a Force Majeure Event shall not include:
     • financial distress, nor the inability of either party to make a profit or avoid a financial loss;
     • changes in market prices or conditions; or
     • a party’s financial ability to perform its obligations hereunder.

9. Default
   • Under this Agreement, it is an event of default if:
     • either party breaches a material term of this Agreement; or
     • in respect of the Hirer:
       • subject to a statutory stay of proceedings, an Insolvency Event occurs or is likely to occur;
       • a creditor takes possession of all or any part of the Hirer’s undertaking or assets;
       • any distress or execution is threatened or levied against the Hirer or its assets, the Equipment or the Equipment is lawfully seized or impounded; or
       • any representation or warranty made by the Hirer in this Agreement or in relation to it is untrue or misleading in a material respect.
     • Where an event of default occurs under clause 1 in respect of the Hirer, the Owner may:
       • require the Hirer to immediately pay to the Owner all money which would otherwise become payable at a later date on any account (including all Hire Charges for the Minimum Hire Period), without further notice;
       • charge the Hirer interest on any amount due at the rate which equal to the cash rate set by the Reserve Bank of Australia plus 5% per annum for the period from the due date until the date of payment in full;
       • charge the Hirer for, and the Hirer must indemnify the Owner against, all costs and expenses (including all legal costs and expenses on a solicitor and own client basis, internal administration fees and recovery costs) it incurs because of the default, or in taking action to enforce the Agreement, or to recover the Equipment or any amount which is owing;
       • charge the Hirer for the cost of repairing or replacing any lost, damaged or destroyed Equipment, at the current replacement price;
       • charge the Hirer for subsequent lost hire charges resulting from the Equipment being lost, damaged, or destroyed until the Equipment is repaired or replaced;
       • claim damages from the Hirer for breaching the Agreement; or
       • cease or suspend the Hirer’s right to use the Equipment, or cease or suspend supplying further Equipment to the Hirer.
       • terminate this Agreement in accordance with clause 10; and/or
       • exercise any rights that the Owner may have under any security provided by the Hirer.
     • Further to any other rights or remedies the Owner may have under this Agreement, if a Hirer has made payment to the Owner, and the transaction is subsequently reversed, the Hirer shall be liable for and must indemnify the Owner for the amount of the reversed transaction, in addition to any further costs incurred by the Owner under this clause 9 where it can be proven that such reversal is found to be illegal, fraudulent or in contravention to the Hirer’s obligations under this Agreement.

10. Termination
    • Either party may terminate this Agreement with 14 days’ written notice, provided the Minimum Hire Period has been completed.
    • Should either the Hirer or the Owner terminate this Agreement prior to expiry of the Minimum Hire Period, the Hirer will be liable for the remaining hire charges for the full Minimum Hire Period.
    • Either party may terminate this Agreement immediately if the other party breaches any term of this Agreement and fails to remedy the breach within 7 days of written notice (including with regards to the Hirer’s failure to make payment of the Hire Charges under this Agreement).
    • On termination or expiry of this Agreement, the Hirer must, at its own cost and risk, arrange for return of any Equipment within 7 days from the date of termination. The Equipment must be returned:
      • in good working order (normal wear and tear and pre-existing damage excepted); and
      • with all documents and any other material in the Hirer’s possession or control that relate to the Equipment, or any copies thereof.
    • If the Hirer does not return the Equipment to the Owner in accordance with clause 4, the Hirer gives the Owner permission to enter any premises where the Equipment is located to repossess it and indemnifies the Owner for:
      • any liability arising from entering and removing the Equipment; and
      • the cost of repossessing and transporting the Equipment, payable at the prevailing rate.
    • Repossession of the Equipment does not affect the Owner’s right to recover monies owing to it.
    • Termination of this Agreement will be without prejudice to any obligation accrued by either party before termination of the Agreement.
11. Warranties and Acknowledgements
    • The Hirer acknowledges and warrants that:
      • before signing the Agreement, it satisfied itself, relying solely upon its own judgement, as to the condition, suitability and specifications of the Equipment and its fitness for the Hirer’s purposes and the Hirer had a reasonable opportunity to examine the Equipment and its state of repair;
      • the Owner has not given any warranty or made any representations to the Hirer as to the Equipment or its use other than representations and warranties expressly made in writing;
      • the Owner’s obligations under this Agreement will continue despite any defect or breakdown of the Equipment or any other matter concerning the Equipment;
      • all warranties, guarantees and conditions, other than those expressly stated in this Agreement, and whether implied by statute, common law, custom of the trade or otherwise are to the extent that the law permits, expressly excluded;
      • neither the Owner nor anyone on its behalf guarantees that replacement equipment is available for any Equipment that requires repair or becomes inoperative during the Hire Period;
      • all of the Hirer’s obligations under this Agreement will continue despite any defect in, or breakdown of, the Equipment; and
      • to the extent that any implied condition or warranty on the part of the Owner cannot be excluded, the Owner’s liability for breach of any such condition or warranty is limited (but only to the extent permitted by law) at the Owner’s discretion to replacing the Equipment or repairing the Equipment or payment of the cost of having the Equipment repaired.
    • The Hirer acknowledges that no option, proviso or representation express or implied, written or oral has been made by or on behalf of the Owner to the Hirer that the Equipment may be purchased from the Owner by the Hirer or any related body corporate or any nominee of the Hirer at any time.
12. Liability
    • The Hirer indemnifies and holds harmless the Owner from and against any claims, loss, damage, costs, expenses or liability arising from or in connection with:
      • the Hirer’s possession, use or misuse of the Equipment; and
      • any breach of this Agreement by the Hirer.
    • For the avoidance of doubt, the indemnity in clause 1 does not indemnify the Owner for any claims, loss, damage, costs, expenses or liability that arise from its own breach of this Agreement or negligent or wilful misconduct.
    • The Owner’s liability to the Hirer under this Agreement is limited to the amount of Hire Charges paid by the Hirer in the preceding 3-month period.
    • Neither party is liable for any indirect or consequential losses or expenses suffered by the other party or any third party, howsoever caused, including but not limited to loss of turnover, profits, business or goodwill or any liability to any other party, except to the extent of any liability imposed by the ACL.
    • Nothing in this Agreement is to be interpreted as excluding, restricting or modifying or having the effect of excluding, restricting or modifying the application of any State or Federal legislation applicable to the provision of Equipment which cannot be excluded, restricted or modified.
13. Personal Property Securities Act 2009 (PPSA)
    • Notwithstanding anything to the contrary contained in this Agreement, the PPSA applies to this Agreement.
    • For the purposes of the PPSA:
      • terms used in this clause that are defined in the PPSA have the same meaning given to it by the PPSA;
      • this Agreement is a security agreement for the purposes of the PPSA, and includes security in respect of the proceeds arising or derived from the Equipment and any accession to the Equipment;
      • if this Agreement constitutes a PPS Lease, the Hirer acknowledges and agrees that the Owner has a Purchase Money Security Interest in all present and future acquired Equipment supplied by the Owner to the Hirer and the proceeds from any dealing with the Equipment;
      • the security interest is a continuing interest irrespective of whether there are monies or obligations owing by the Hirer at any particular time; and
      • the security interest arising under this clause attaches to the Equipment when the Equipment is collected or dispatched from the Owner’s premises and not at any later time.
    • The Hirer undertakes to:
      • do whatever is necessary including, 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 the Owner may reasonably require to:
        • register a financing statement or financing change statement in relation to a security interest on the PPSR;
        • register any other document required to be registered by the PPSA; or
        • correct a defect in a statement referred to in clause 3.1.1 or 13.3.1.2;
      • indemnify, and upon demand reimburse, the Owner for all expenses incurred in registering a financing statement or financing change statement on the PPSR established by the PPSA or releasing any Equipment charged thereby;
      • not register a financing change statement in respect of a security interest without the prior written consent of the Owner;
      • not register, or permit to be registered, a financing statement or a financing change statement in relation to the Equipment and/or collateral (account) in favour of a third party without the prior written consent of the Owner;
      • not, without first giving the Owner 10 business days’ written notice, change its name, ABN, address or any other details that have been, or are required to be, recorded on the PPSR in connection with any security interest created by this Agreement or any transaction contemplated by it; and
      • immediately advise the Owner of any material change in its business practices which would result in a change in the nature of proceeds derived from the Equipment.
    • The Hirer warrants and agrees that the Equipment supplied under this Agreement is not intended, and shall not be used, for personal, household or domestic purposes.
    • The Owner and the Hirer agree that sections 96, 115, 125, 142 and 143 of the PPSA do not apply to the security agreement created by this Agreement.
    • The Hirer hereby waives its rights to receive notices under sections 95, 118, 121(4), 130, 132(3)(d),132(4), 135 and 157 of the PPSA.
    • The Hirer shall unconditionally ratify any actions taken by the Owner under clauses 3 to 13.6.
    • Subject to any express provisions to the contrary (including those contained in this clause 13), nothing in this Agreement is intended to have the effect of contracting out of any of the provisions of the PPSA.
    • For the purposes of section 275(6) of the PPSA, the parties agree and undertake that this Agreement and any information pertaining to the hire of Equipment and details of the Equipment will always be kept confidential. Neither party may disclose any information pertaining to this Agreement or the hire of the Equipment, except as otherwise required by law or that is already in the public domain.
14. Security and Charge
    • In this clause 7, “Trigger Event” means an event where:
      • the value of the Equipment exceeds $50,000.00 or the Owner has otherwise assessed the Hirer as a credit risk; or
      • the Hirer defaults in payment by the due date of any amount payable to the Owner or fails to perform any other provision of this Agreement.
    • Despite anything to the contrary contained herein or any other rights which the Owner may have howsoever:
      • upon the occurrence of a Trigger Event, the Hirer charges, for the purpose of securing payment to the Owner of all amounts owing to the Owner for all Equipment supplied to the Hirer, all of the Hirer’s present and after-acquired property in which the Hirer has rights and agrees to sign or complete any further documents necessary to complete a registration of such security interest.
      • the preceding clause 1.1 is intended to operate as a springing security and does not come into force until a Trigger Event occurs. No terms in preceding clause 14.1.1 will be construed so as to have operation prior to the occurrence of a Trigger Event and for the purposes of section 588FL of the Corporations Act 2001 (Cth) and all other purposes, preceding clause 14.1.1 comes into force on and after the occurrence of a Trigger Event.
    • The Hirer indemnifies the Owner from and against all the Owner’s costs and disbursements including legal costs on a solicitor and own client basis incurred in exercising the Owner’s rights under this clause.
    • The Hirer hereby irrevocably nominates, constitutes and appoints the Owner and each director of the Owner (separately) as the Hirer’s true and lawful attorney/s with power to perform all necessary acts and sign all required documents to give effect to the provisions of this clause 14 or any other provision of this Agreement. The Hirer authorises each attorney to exercise their powers under this power of attorney even if the exercise of such powers may involve a “conflict transaction” (as defined in the Powers of Attorney Act 1998 (QLD)) or they have a personal interest in doing so.
15. General
    • This Agreement and any Quotation shall constitute the entire agreement between the Owner and the Hirer, and the Hirer hereby acknowledges that no reliance is placed on any representation made by the Owner that is not embodied in this Agreement and/or the Quotation. Any variation must be in writing and signed by both parties.
    • This Agreement is governed by the laws of Queensland and are subject to the jurisdiction of the courts in Brisbane, Queensland and the Commonwealth of Australia.
    • The failure by either party to enforce any provision of this Agreement shall not be treated as a waiver of that provision, nor shall it affect that party’s right to subsequently enforce that provision.
    • If any provision of this Agreement shall be invalid, void, illegal or unenforceable the validity, existence, legality, and enforceability of the remaining provisions shall not be affected, prejudiced or impaired.
    • If any provisions of this Agreement are inconsistent with the PPSA and are not permitted to be contracted out of, the PPSA will prevail to the extent of that inconsistency.
    • Subject to clause 24, neither party shall be under any liability whatsoever to the other party for any indirect and/or consequential loss and/or expense (including loss of profit) suffered arising out of a breach by the party suffering such loss of these terms and conditions (alternatively the liability shall be limited to damages which under no circumstances shall exceed the Price of the Works) except to the extent of any liability imposed by the ACL which cannot be contracted out of by these Terms, or except where otherwise provided by these Terms
    • The parties agree and acknowledge that the Owner may licence and/or assign all or any part of its rights and/or obligations under this Agreement without the Hirer’s consent.
    • The Hirer cannot licence or assign its interest under this Agreement without the written approval of the Owner.
    • The Hirer agrees that the Owner may amend their general terms and conditions for subsequent future contracts with the Hirer by disclosing such to the Hirer in writing. These changes shall be deemed to take effect from the date on which the Hirer accepts such changes, or otherwise at such time as the Hirer makes a further request for the Owner to provide Equipment to the Hirer.
    • Both parties warrant that they have the power to enter into this Agreement and have obtained all necessary authorisations to allow them to do so, they are not insolvent and that this Agreement creates binding and valid legal obligations on them.
    • The rights and obligations of the parties will not merge on completion of any transaction under this Agreement, and they will survive the execution and delivery of any assignment or other document entered, for the purpose of, implementing any transaction under this Agreement.

Last updated: 13th July 2026