Malaga Trade Supplies Pty Ltd

Trading as SOILWORLD

Terms of Hire

OBLIGATIONS OF THE CUSTOMER

The Customer must:

·        Deliver the Equipment to Soilworld when it is due back.

·        Return the Equipment to Soilworld clean and in good repair.

·        Satisfy itself at Commencement that the Equipment is suitable for its purposes.

·        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 Soilworld or posted on the Equipment.

NOTE TO CUSTOMER: You MUST advise Soilworld if you require any further instruction on the operation and safe use of the Equipment.

·        Take adequate and reasonable precautions to protect the equipment against theft or burglary and all other usual risks. As a minimum, the Client must keep the equipment in a safe secure locked private compound when not in use.

·        Be responsible for loss of or damage to the Equipment from the time of commencement of hire or delivery, whichever is earlier, until the equipment is returned to Soilworld premises or collected by Soilworld

·        Be responsible for any disappearance of the Equipment (without evidence or report to police of theft from site, yard etc.), loss or damage to the equipment and repair costs for additional damage and damage caused by accident, abuse.

·        Indemnify Soilworld for all injury and/or damage to the extent 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

·        Ensure that 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

·        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;

·        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;

·        Safely secure all items loaded in or on the Equipment or in or on the Customer’s vehicle, and indemnify Soilworld in respect of any injury and/or damage caused by items falling from the Equipment or from any vehicle or trailer operated by or on behalf of the Customer;

·        Operate the Equipment with an adequate motor vehicle and/or power source;

·        Report and provide full details to Soilworld of any accident or damage to the Equipment within two business days of the accident or damage occurring;

·        Sign any documentation requested by Soilworld at such intervals as reasonably stipulated by Soilworld, to confirm the Customer’s acceptance of these Hire Contract Conditions;

·        Assist and co-operate fully and promptly with Soilworld and/or its insurer in the investigation, settlement or defence of any claim or matter relating to a Hire Schedule on which the Customer is named;

·        Remain responsible for the care and safekeeping of the Equipment until collected by or delivered back to Soilworld.

The Customer must NOT:

·        Tamper with, damage or repair the Equipment;

·        Lose or part with possession of the Equipment;

·        Rely upon any representation relating to the Equipment or its operation other than those contained in this Contract;

·        Allow any person to drive a Motor Vehicle if the person: (a) does not hold a suitable licence to drive that class of Motor Vehicle; or (b) is affected by drugs and/or alcohol.

·        Exceed the recommended or legal load and capacity limits of the Equipment;

PAYMENTS BY THE CUSTOMER TO SOILWORLD

On or before Commencement (or as otherwise specifically agreed with Soilworld), the Customer will pay the Hire Charge.

Immediately on request by Soilworld, the Customer will pay:

(a) the new list price of any Equipment which is for whatever reason not returned to Soilworld

NOTE TO CUSTOMER: Subject only to any express provision of this Contract to the contrary, the Customer is responsible for loss or theft of the Equipment.

(b) all costs incurred in cleaning the Equipment;

(c) the full cost of repairing any damage to the Equipment caused or contributed to by the Customer, unless expressly agreed otherwise in this Contract;

(d) stamp duties, GST, any other taxes or duties, and all tolls, fines, penalties, levies or charges payable in respect of this Contract or arising from the Customer’s use of the Equipment;

(e) all costs incurred by Soilworld in delivering and recovering possession of the Equipment;

(f) Interest for late payment of amounts owing by the customer, at the pre-judgement interest rate set by the Local Court of WA from time to time;

(g) the Kilometre Charge in excess of 100km per day and any additional Hire Charges;

(h) the cost of fuels and consumables provided by Soilworld and not returned by the Customer;

(i) any reasonable expenses and legal costs (including commission payable to a commercial agent) incurred by Soilworld in enforcing this Contract due to the Customers default;

(j) all costs of repairing or replacing tyres, including road service;

(k) if any damage and/or theft waiver applies, the amount for which the Customer is liable as set out in this Contract; and

(l) Loading costs when equipment hired with an hour meter is used in excess of 8 hours per day.

(m) Hire fees for the period from the commencement of the hire until the Equipment is returned or a customer pick up number is obtained from Soilworld.

In the event additional charges exceed funds held, the Client is to pay SOILWORLD any outstanding balance on demand.

Without limiting the ability of Soilworld to recover all amounts owing to it, the Customer authorises Soilworld to charge any amounts owing by the Customer to any credit card or account details of which are provided to Soilworld.

Soilworld may tokenise the Customers Credit Card or Account details to facilitate credit card or online payments

All equipment is provided with a full fuel tank at the time of delivery, any fuel required on return of equipment will be charged to the Client at cost of three dollars ($3.00) per litre + GST.

The Client acknowledges that they are liable for any loss or damage to the equipment including tyres from the time of delivery until it is returned to or picked up by Soilworld. The Client shall immediately advise Soilworld in writing of any such loss or damage

PPS LAW

This clause applies to the extent that this Contract 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.

Soilworld may register its security interest. The Customer must do anything (such as obtaining consents and signing documents) which Soilworld requires for the purposes of

(a)        ensuring that Soilworld’ security interest is enforceable, perfected and otherwise effective under the PPS Law;

(b)        enabling Soilworld to gain first priority (or any other priority agreed to by Soilworld in writing) for its security interest; and

(c)        enabling Soilworld to exercise rights in connection with the security interest.

The rights of Soilworld under this document are in addition to and not in substitution for Soilworld’ rights under other law (including the PPS Law) and Soilworld may choose whether to exercise rights under this document, and/or under such other law, as it sees fit. To avoid any doubt about it Soilworld security interest will attach to proceeds.

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 Soilworld to give a notice to the Customer); section 96 (retention of accession); section121(4) (notice to grantor); section125 (obligations to dispose of or retain collateral); section 130 (notice of disposal to the extent it requires Soilworld 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).

The following provisions of the PPS Law: section 123 (seizing collateral); section 126 (apparent possession); section 128 (secured party may dispose of collateral); section 129 (disposal by purchase); and section 134(1) (retention of collateral) confer rights on Soilworld. Customer agrees that in addition to those rights, Soilworld 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 document and the Customer agrees that Soilworld may do so in any manner it sees fit including (in respect of dealing and disposal) by private or public sale, lease or licence.

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.

Soilworld 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 Soilworld the benefit of section 275 (6)(a) and Soilworld 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.

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 Soilworld.

Customer must not lease, hire, bail or give possession (‘sub-hire’) of the Equipment to anyone else unless Soilworld (in its absolute discretion) first consents in writing. Any such sub-hire must be in writing in a form acceptable to Soilworld and must be expressed to be subject to the rights of Soilworld under this agreement. Customer may not vary a sub-hire without the prior written consent of Soilworld (which may be withheld in its absolute discretion).

Customer must ensure that Soilworld 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.

Customer must take all steps including registration under PPS Law as may be required to:

(a)        ensure that any security interest arising under or in respect of the sub-hire is enforceable, perfected and otherwise effective under the PPS Law;

(b)        enabling the Customer to gain (subject always to the rights of Soilworld) first priority (or any other priority agreed to by Soilworld in writing) for the security interest; and

(c)        enabling Soilworld and the Customer to exercise their respective rights in connection with the security interest.

DAMAGES

·        The Client will accept all responsibility for all damage to property and injury caused during the period of hire to the Client, his employees or agents and shall indemnify and hold Soilworld harmless in respect thereof.

·        The Client shall indemnify Soilworld and its employees and agents from and against all claims which may be made against any of them for damages or otherwise, in respect of any loss, damage, death or injury caused by, or in the course of, or arising out of the use of the Equipment whilst the Equipment is on hire to, or in the custody of the Client, his agent, or employees, or any other person acting on behalf of the Client

·        The Client shall not be entitled to damages or compensation from Soilworld for any loss suffered by reason of late delivery or breakdown of the Equipment or if Soilworld should determine the cancel the hiring for any reason.

To the maximum extent permitted by legislation no warranty is provided by Soilworld in respect of the condition of the Equipment or its fitness for any particular purpose. The Client shall indemnify and hold harmless Soilworld in respect of all claims arising