1300 HIREWATER

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Terms and Conditions of Hire

Terms and Conditions Effective 1 January 2021

1. Definitions

In this document unless the contrary intention appears:

Company” means Pinnacle Hire Pty Ltd, its subcontractors, employees and agents

Account Application” has the meaning given in the Trading Terms & Conditions.

Equipment” means the items hired out by the Company to the Hirer from time to time, including any associated or attached tools, accessories and parts.

Expected Off Hire Date” means the date the Hirer expects the Hire Period to end as specified in the Hire Schedule.

Hire Charge” means the rates or charges payable by the Hirer for the hire of the Equipment.

Hire Period” means the period of hire of the Equipment as between the Company and the Hirer.

Hire Schedule” means the document provided by the Company to the Hirer which includes details of the Equipment hired, the Hire Charge, any other applicable charges, the Expected Off Hire Date and the address for the delivery of the Equipment.

Hire Terms” mean these terms and conditions of hire as amended from time to time.

Hirer” means any person or entity who requests the Company to hire Equipment to it, its successors, permitted, assigns, employees, agents and any person claiming through, under or in trust for such person.

New Replacement Cost” means the cost to replace the Equipment with a new item of the same equipment or, if the same equipment is not available, then the cost to replace the Equipment with a new item of equipment of the same quality, function and capacity.

PPSA” means the Personal Property Securities Act 2009 (Cth) (as amended) and any other legislation and regulations in respect of it, and the following words in this Agreement have the respective meanings given to them in the PSSA: “financing charge statement, purchase money security interest (or “PMSI”), register, registration” and “security interest

Register” means the Personal Properties Securities Register established pursuant to section 147 of the PPSA.

Theft and Damage Waiver” has the meaning given in clause 9.

2. Hire Terms

  • These Hire Terms together with:
    • each Hire Schedule provided to the Buyer by the Company, whether signed or not; and
    • the Company’s Trading Terms and Conditions

set out the terms of the hire agreement (Agreement) between the Company and the Buyer.

  • These Hire Terms replace and supersede all other terms and conditions of hire, if any, previously in force between the Company and the Hirer or any terms contained in any document supplied by the Buyer and no variation of these Hire Terms will bind either party unless confirmed by the Company in

3. Property

  • Ownership of the Equipment will at all times remain with the
  • No person will be entitled to use, dispose of or otherwise deal with the Equipment in any way which is inconsistent with the Company’s rights or these Hire Terms.
  • Neither payment of compensation nor any other circumstance or event will amount to, constitute or result in any transfer of property or title in the Equipment from the Company to the
  • The Hirer acknowledges that the Company may inspect the Equipment at any time during the Hire Period and give the Company an irrevocable licence to enter any site owned, possessed or controlled by the Hirer, whether notice of such inspection is given to the Hirer or not and the Hirer shall provide to the Company all assistance and co-operation necessary to facilitate such inspection of the Equipment. The Hirer shall indemnify the Company in relation to any action for trespass in the course of the Company reasonably exercising its right to inspect the
  • This Agreement is between the Company and the Hirer. The Hirer will not:
    • assign or subcontract its rights and obligations under any Agreement;
    • sell or alter for sale, assign, mortgage, pledge, lend, part with possession or grant a security interest in the Equipment;
    • allow any other person to use or possess of the Equipment; or
    • allow any lien to be levied upon the Equipment, whether for repairs, or otherwise; without the prior written consent of the Company, which may be withheld at the Company’s absolute
  • The Hirer will protect the Equipment against destruction or seizure and will indemnify the Company against all losses, including any but not limited to consequential losses, costs, charges, damages and expenses (including any legal costs on an indemnity basis) incurred by the Company as a result of a breach of this Agreement, including but not limited to this clause 3, by the
  • The Hirer will maintain the Equipment on a daily basis in compliance with any directions provided by the
  • The Company may assign or subcontract any of its rights or obligations under this Agreement without notice to the

4. Loss, Damage or Stolen Equipment

  • If the Equipment is lost, stolen, breaks down or is in any way damaged, the Hirer must immediately notify the Company in writing. Notification shall not absolve the Hirer of any of its obligations under this
  • In the event that the Equipment breaks down or becomes unsafe to use, the Hirer shall:
  • immediately stop using the Equipment;
  • take all steps necessary to prevent the Equipment from sustaining any further damage;
  • take all steps necessary to prevent injuries from occurring to any person or property as a result of the condition of the Equipment; and
  • not repair or attempt to repair the Equipment without the Company’s prior written
  • The Company shall take all reasonable steps necessary to repair the Equipment or to provide substitute Equipment as soon as is reasonably possible in the circumstances after receipt of notice from the
  • Subject to clause 9, if the Equipment is lost, stolen or damaged, the Hirer shall be liable for:
  • costs incurred by the Company in repairing or replacing the Equipment;
  • hire charges for the Equipment until the Equipment is repaired or replaced; and
  • any other costs whatsoever incurred by the Company as a result of damage to, theft or loss of the
  • If the Company is required by any relevant authority, is requested by the Hirer or elects in its unfettered discretion to salvage the Equipment, all salvage costs shall be payable by the

5.  Personal Properties Securities Act

    • The Hirer:
      • acknowledges that the Company may register any actual or impending PMSI under the PSSA in respect of all Equipment; and
      • consents to the Company registered its PMSI under the PPSA and will do all things reasonably necessary to assist the Company to register its security interest.
    • The Company is responsible for:
      • the preparation and registration of the financing statement or financing change statement; and
      • payment of any fees associated with the registration,

and the Hirer waives the right to receive verification of the registration from the Company pursuant to section 157(3)(b) of the PPSA.

  • If the Hirer sub-hires the Equipment to its agent, contractor or subcontractor or any third party (“Sub-hire”) and the Sub-hire is a security interest under the PPSA, the Hirer agrees that it will protect the Company’s interest in the Equipment by:
    • registering a security interest itself; or
    • assigning, by this clause, to the Company all rights as bailor to enforce against an agent, contractor or subcontractor.
  • The Hirer has an obligation to give the Company notice if another party with a security interest in the Equipment seizes or otherwise deals with the Company’s PMSI in the Equipment
  • If the Hirer grants any security interest in the Equipment to another party, that other party must acknowledge the priority of the Company’s PMSI.
  • The parties agree that neither party is required to give notice to the other under the PPSA unless the obligation to give the notice cannot be excluded.

6. The Hirer’s Obligations

6.1 The Hirer will:

  • Pay the Hire Charge together with any other charges or amounts that may become due and payable to the Company under the terms of this
  • Upon delivery or collection of the Equipment, immediately examine the Equipment to satisfy itself as to its condition and suitability and fitness for the purpose to which it requires the Equipment. By taking possession of the Equipment, the Hirer acknowledges that it has duly examined the Equipment and has satisfied itself as required. The Hirer acknowledges that it has not in any way relied upon the skill, judgment or any representations made by or on behalf of the Company in respect of the Equipment, its purpose, use or performance.
  • Use the Equipment in a skillful, proper, safe and prudent manner and only for the purpose and within the capacity for which it was
  • Ensure that the Equipment is operated by a suitably qualified, trained, experienced and (if necessary) certified If the Company supplies an operator to operate the Equipment, the operator shall be under the sole direction and control of the Hirer, and for the purpose of this Agreement s/he shall be deemed to be the employee of the Hirer. The Hirer shall be responsible for any claims whatsoever arising in connection with the operation of the Equipment by such an operator or any third party and if an operator is provided by the Company, the Hirer shall not allow any other person to operate the Equipment without the Company’s prior written consent.
  • At its own expense clean, fuel, lubricate and keep and maintain the Equipment in good condition and repair failing which the Hirer will reimburse the Company for any costs, claims, loss, damage or expenses (including legal expenses on an indemnity basis) incurred by the
  • Repair or replace at its own cost any flat and/or damaged tyres on the Equipment.
  • Clean the Equipment thoroughly on the expiry of the Hire Period. If the Hirer fails to clean the Equipment properly then, at the Company’s discretion, it may undertake the cleaning and the Hirer shall be liable for all cleaning costs.
  • Ensure that the Equipment is stored safely, securely and protected from
  • Not alter, make additions to, deface or erase any identifying mark, plate, trademark writing or number on or in the Equipment, or otherwise interfere with or modify the Equipment in any other
  • Be liable for the cost of freight to retrieve Equipment that has been abandoned for any
  • Comply at its own expense with all Laws , but not limited to, any Occupational Health and Safety Laws which may affect the Equipment while it is in the possession of or being used by the
  • Not, without the prior written consent of the Company, keep or store any volatile spirits, explosive goods, goods which are or may become dangerous, corrosive, highly combustible, offensive (including radioactive materials) or likely to encourage any vermin or pests on, in or near the Equipment. Any such goods stored on, in or near the Equipment may at any time be destroyed, disposed of, abandoned or rendered harmless by the Company without compensation to the Hirer and without effecting the Company’s rights under this
  • Authorises the Company to have unrestricted access to the Equipment for the purpose of exercising the Company’s rights under this clause.
  • Supply the operator of the Equipment with all necessary manuals and instructions (both written and oral) for the safe use of the Equipment.
  • Be totally responsible for any theft, loss or damage to the Equipment until it is returned to the

7. Exclusion of Warranties 

  • Any warranty, condition, description or representation whether express or implied as to the description, state, quality, merchantability or fitness of the Equipment for the purpose for which it is hired is hereby excluded to the extent that any applicable Law
  • To the extent permitted by Law, the Company’s liability (if any) for breach of any of the terms of this Agreement (express or implied) is limited to (at the option of the Company):
  • the repair or replacement of the Equipment or the supply of the equivalent Equipment; or
  • the payment of the cost of repairing or replacing the Equipment or the supply of equivalent

8. Release and Indemnity

The Hirer hereby releases the Company from and agrees to indemnify the Company in respect of any third party claims, actions, suits, demands, costs and expenses for damage or injury to person or property arising directly or indirectly out of the hire or use of the Equipment by the Hirer.

9. Theft and Damage Waiver

9.1 “Theft and Damage Waiver” is not insurance but is an agreement between the Hirer and the Company that in consideration of the Hirer paying the Damage Waiver Fee, the Company will limit the Hirer’s liability in certain circumstances for each single incident of loss, theft or damage to the Equipment to an amount called the “Damage Waiver Excess”.

9.2 The “Damage Waiver Fee” is a compulsory, non-refundable payment of 12% of the value of the total Hire Charge (unless otherwise agreed by prior arrangement).

9.3 For the purpose of this clause, the term “Equipment” does not include any tools, accessories, parts, grease guns, hoses, electrical cords, lights, light globes and other similar accessories, ground engaging tools, tracks, tyres and glass.

9.4  The Damage Waiver Excess is $2,500 or 12% of the New Replacement Cost of the Equipment, whichever is greater.

9.5  The Theft and Damage Waiver does not apply and will not limit the Hirer’s liability:

  • where the Equipment is lost or stolen, unless the further requirements in clause 6 have been met;
  • where the operator is not suitably licensed or qualified or is affected by drugs and/or alcohol;
  • where the Equipment has been wilfully damaged by the Hirer or its employees or agents;
  • where the Equipment is being sub-hired;
  • where the damage is caused by a collision with a bridge, carpark, awning, gutter, tree or any other overhead structure of object whatsoever due to insufficient clearance;
  • where the damage results from overloading or exceeding the rated capacity of the Equipment or from using the Equipment in violation of any Laws;
  • where the loss, theft or damage has arisen as a result of the Hirer’s breach of this Agreement or has been caused by the Hirer’s negligent act or omission;
  • where the loss, theft or damage occurs to the Equipment whilst it is located, used, loaded, unloaded, transported on or over water, wharves, bridges or vessels of any kind;
  • where the Hirer has failed to use the Equipment for its intended purpose or in accordance with the Company’s or the manufacturer’s instructions, or to properly service or maintain the Equipment;
  • where the loss or damage is to motors or other electrical Equipment or components within the Equipment caused by electrical overload, a surge in electrical current or the use of under-rated or excessive lengths of extension leads with the electrical Equipment;
  • where the loss or damage is caused by exposure to any corrosive, toxi or caustic substance, such as cyanide, salt water or acid;
  • where the loss, damage or theft is to tyres, tubes, windscreens, mirrors, glass or Perspex; or
  • where the loss or damage is caused by vandalism.

9.6 In the event of the theft or burglary of the Equipment, the Theft and Damage Waiver will only apply if:

(a) the Hirer has promptly reported the theft or burglary to the police and provided the Company with a written police report; and

(b) the Hirer cooperates with the Company and provides the Company with details of the incident, including any written or photographic evidence required; and

(c) the Hirer provides evidence, to the Company’s satisfaction, that it took adequate measures and precautions to protect the Equipment against theft or burglary, including keeping all trailerised Equipment in a secured area.

  • The Hirer acknowledges that nothing in this clause 9 derogates from the Hirer’s other obligations in this Agreement.

10. Termination of Hire 

  • The Company may at any time, in its unfettered discretion, terminate the hire of the Equipment to the Hirer whereupon the Hirer must immediately attend to any of the obligations remaining under this Agreement and make the Equipment available for collection.
  • The Hirer may terminate the Hire of the Equipment:
  • by delivering the Equipment to the Company during normal working hours; or
  • if the Hirer requests the Company collect the Equipment, on collection by the Company, however, the Hirer is liable for keeping the Equipment safe and secure until such
  • Further to clause 4, if the Equipment is returned to or collected by the Company in a state which is unsatisfactory or in breach of the terms of this Agreement, then the Hire Period will be deemed to continue until the Equipment is in a state which is satisfactory to the Company, or any breach of this Agreement has been remedied (whichever is the later). The Company undertakes to take all reasonable steps to put the Equipment into a satisfactory state as soon as is reasonably possible after the return or collection of the Equipment.
  • Upon termination of hire, the Company is entitled to take possession of the Equipment and for this purpose the Hirer irrevocably appoints the Company as their agent, and authorises and grants a licence to the Company to:
  • enter upon any land or premises upon which the Equipment is situated or where the Company has any reason to believe that the Equipment may be situated; and
  • disconnect, dismantle and remove the Equipment, whether or not it is affixed to the land or the premises, connected to property or equipment not owned by the Company, in use by the Hirer or any other person, or containing property not owned by the
  • The Hirer releases the Company from, and fully indemnifies the Company against, any claims arising from the removal and collection of the Equipment in accordance with this clause 10.
  • After the termination of the Agreement and until the Equipment has been collected by the Company, the Equipment will remain the sole risk of the Hirer, and the Hirer will indemnify the Company in respect of any loss of or damage to the

11. Insurance

  • The Hirer will maintain at its own expense all appropriate polices of insurance with a duly authorised insurer:
  • for all damage to or arising out of the hire of the Equipment in an amount not less that the New Replacement Cost of the Equipment; and
  • for all third party and public liability risks in respect of the hire or use of the Equipment by the Hirer for not less than $20 million for any one

12.  Miscellaneous

  • Where a clause in this Agreement is void, illegal or unenforceable, it may be severed without affecting the enforceability of the other provisions in this Agreement.
  • The rights and obligations of the Hirer and the Company will continue and not be affected by termination of the hire of Equipment. Termination of the hire of the Equipment will be without prejudice to any right of action already given to the Hirer or Company in respect of any breach of this Agreement by the other
  • This Agreement is governed by the Law applicable in the State of Victoria, and the parties consent to the exclusive jurisdiction of the courts of the State of Victoria.
  • The parties acknowledge that the Agreement contains the entire agreement concluded between the parties notwithstanding any prior or subsequent negotiations or Any such conditions, warranties or representations are hereby expressly excluded.
  • Time is of the essence of all obligations of the Hirer in this
  • Failure by the Company to insist upon strict performance of any terms of this Agreement, or to exercise in whole or in part any right that it may have under this Agreement at law will not be deemed to be a waiver of any rights that the Company may have will shall not be deemed a waiver of any subsequent breach of any term in this