Terms of trade
“SE” means Simpson Heavy Haulage Pty Ltd (as trustee for Simpson Family Trust) T/A Simpson Earth, its successors and assigns or any person acting on behalf of and with the authority of Simpson Heavy Haulage Pty Ltd (as trustee for Simpson Family Trust) T/A Simpson Earth.
“Client” means the Client or any person acting on behalf of and with the authority of the Client, as specified in any invoice, document or order, and if there is more than one Client is a reference to each Client jointly and severally.
“Plant” means all equipment (including all tools, accessories and spare parts supplied therewith) supplied on hire by SE to the Client (and where the context so permits shall include any incidental supply of Services). The Plant shall be as described on the invoices, quotation, authority to hire, or any other work authorisation forms as provided by SE to the Client.
“Dry Hire” means that the Plant is supplied by SE without an operator.
“Wet Hire” means that the Plant is supplied by SE with an operator, who shall at all times remain an employee or representative of SE (and hereinafter also included in the reference “Services”, where permitted and applicable).
“Hire Term” means the period of hire of the Plant by the Client, as described on the invoices, quotation, authority to hire, or any other forms as provided by SE to the Client.
“Minimum Hire Period” means the minimum Hire Term, as specified in this contract, and calculated at the appropriate hourly rate plus travel, unless otherwise specified by SE prior to commencement of the Hire Term.
“Services” means all Services supplied by SE to the Client at the Client’s request from time to time, and:
– including, but not limited to, anything done or to be done in relation to the Goods, or the provision of any services ancillary to the Goods such as moving, storing or leaving the Goods at any warehouse, yard, terminal, wharf or other place or area, loading or unloading the Goods from any vehicle, or other conveyance, stowing or packing the Goods, or otherwise handling the Goods, or anything else done in relation thereto including the offering of any advice or recommendations;
– includes any materials, goods, documents, designs, drawings or materials supplied, consumed, created or deposited incidentally by SE in the course of it conducting, or supplying to the Client, any Services.
“Goods” shall mean cargo together with any container, packaging, or pallet(s) to be moved from one place to another by way of SE’s Services.
“Consignee” shall mean the person to whom the Goods are to be delivered by way of SE’s Services.
“Charges” means the cost of the Plant and/or Services as agreed between SE and the Client subject to clause 4 of this contract.
The Client is taken to have exclusively accepted and is immediately bound, jointly and severally, by these terms and conditions if the Client places an order for the Plant and/or Services, or accepts Delivery and/or supply of the Services.
These terms and conditions may be meant to be read in conjunction with SE’s quotation, consignment note, agreement, manifests, or any other forms as provided by SE to the Client. If there are any inconsistencies between these documents, then the terms and conditions contained in that document shall prevail.
These terms and conditions may only be amended with the consent of both parties in writing, and shall prevail to the extent of any inconsistency with any other document or agreement between the Client and SE.
Electronic signatures shall be deemed to be accepted by either party providing that the parties have complied with Section 9 of the Electronic Transactions Act 2000 or any other applicable provisions of that Act or any Regulations referred to in that Act.
Change in Control
The Client shall give SE not less than fourteen (14) days prior written notice of any proposed change of ownership of the Client and/or any other change in the Client’s details (including but not limited to, changes in the Client’s name, address, contact phone or fax number/s, or business practice). The Client shall be liable for any loss incurred by SE as a result of the Client’s failure to comply with this clause.
Charges and Payment
At SE’s sole discretion Charges shall be either:
– as indicated on invoices provided by SE to the Client in respect of Plant and/or Services supplied; or
– SE’s quoted Charges (subject to clause 4.2) which shall be binding upon SE provided that the Client shall accept SE’s quotation in writing within thirty (30) days of issue.
SE reserves the right to change the Charges:
– if a variation to the Plant and/or Services which are to be supplied is requested; or
– where additional Services are required due to the discovery of hidden or unidentifiable difficulties (including, but not limited to, any variation as a result of poor weather conditions, limitations to accessing the site, availability of machinery, safety considerations, prerequisite work by any third party not being completed, hard rock barriers below the surface, obscured site defects, or hidden pipes and wiring/cabling, etc.) which are only discovered upon commencement of the Services;
– in the event of increases to SE – in the cost of taxes, levies, materials and labour, which are beyond SE’s control;
for long term hire of the Plant, upon one (1) months’ written notice to the Client.
Variations will be charged for on the basis of SE’s quotation, and will be detailed in writing, and shown as variations on SE’s invoice. The Client shall be required to respond to any variation submitted by SE within ten (10) working days. Failure to do so will entitle SE to add the cost of the variation to the Price. Payment for all variations must be made in full at the time of their completion.
At SE’s sole discretion, a non-fundable deposit may be required.
Time for payment for the Plant and/or Services being of the essence, the Charges will be payable by the Client on the date/s determined by SE, which may be:
by way of progress payments in accordance with SE’s specified progress payment schedule. Such progress payment claims may include the reasonable value of authorised variations;
– thirty (30) days following the end of the month in which a statement is posted to the Client’s address or address for notices;
– the date specified on any invoice or other form as being the date for payment; or
– failing any notice to the contrary, the date which is fourteen (14) days following the date of any invoice given to the Client by SE.
Payment may be made by electronic/on-line banking, or by any other method as agreed to between the Client and SE.
Unless otherwise stated the Charges do not include GST. In addition to the Charges, the Client must pay to SE an amount equal to any GST SE must pay for any supply of the Plant and/or Services by SE under this or any other contract. The Client must pay GST, without deduction or set off of any other amounts, at the same time and on the same basis as the Client pays the Charges. In addition, the Client must pay any other taxes and that may be applicable in addition to the Charges except where they are expressly included therein.
Receipt by SE of any form of payment other than cash shall not be deemed to be payment until that form of payment has been honoured, cleared or recognised, and until then SE’s rights in relation to the Plant and/or Services, and this contract, shall continue.
No allowance has been made in the Charges for the deduction of retentions. In the event that retentions are made, SE reserves the right to treat all retentions as placing the Client’s account into default.
Personal Property Securities Act 2009 (“PPSA”)
In this clause, the terms: financing statement, financing change statement, security agreement, and security interest have the meaning given to them by the PPSA.
Upon assenting to these terms and conditions in writing the Client acknowledges and agrees that these terms and conditions constitute a security agreement for the purposes of the PPSA and creates a security interest in all Plant, Materials and/or collateral (account – being a monetary obligation of the Client to SE for Services – that have previously been supplied and that will be supplied in the future by SE to the Client.
The Client undertakes to:
– 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 SE may reasonably require to:
– register a financing statement or financing change statement in relation to a security interest on the Personal Property Securities Register;
register any other document required to be registered by the PPSA; or
– correct a defect in a statement referred to in clause 5.3(a)(i) or 5.3(a)(ii);
– indemnify, and upon demand reimburse, SE for all expenses incurred in registering a financing statement or financing change statement on the Personal Property Securities Register established by the PPSA or releasing any registration made thereby;
– not register a financing change statement in respect of a security interest without the prior written consent of SE;
– not register, or permit to be registered, a financing statement or a financing change statement in relation to the Plant, Materials and/or collateral (account) in favour of a third party without the prior written consent of SE;
– not, without giving SE fourteen (14) days’ prior notice, change their name, ABN or any other identifier required to be recorded on the PPSR in connection with any security interest arising under this contract.
SE and the Client agree that sections 96, 115 and 125 of the PPSA do not apply to the security agreement created by these terms and conditions.
The Client waives their rights to receive notices under sections 95, 118, 121(4), 130, 132(3)(d) and 132(4) of the PPSA.
The Client waives their rights as a grantor and/or a debtor under sections 142 and 143 of the PPSA.
Unless otherwise agreed to in writing by SE, the Client waives their right to receive a verification statement in accordance with section 157 of the PPSA.
The Client must unconditionally ratify any actions taken by SE under clauses 5.3 to 5.5.
Subject to any express provisions to the contrary (including those contained in this clause 5) nothing in these terms and conditions is intended to have the effect of contracting out of any of the provisions the PPSA.
Security and Charge
In consideration of SE agreeing to supply Plant and/or Services:
– charges all of its rights, title and interest (whether joint or several) in any land, realty or other assets capable of being charged, owned by the Client either now or in the future, to secure the performance by the Client of its obligations under these terms and conditions (including, but not limited to, the payment of any money); and
– indemnifies SE from and against all SE’s costs and disbursements including legal costs on a solicitor and own client basis incurred in exercising SE’s rights under this clause; and
– irrevocably appoints SE and each director of SE as the Client’s true and lawful attorney/s to perform all necessary acts to give effect to the provisions of this clause 6, including, but not limited to, signing any document on the Client’s behalf.
Defects, Warranties and Returns, Competition and Consumer Act 2010 (CCA)
The Client must inspect the Plant on Delivery (and/or Services on completion) and must within twenty-four (24) hours of such time notify SE in writing of any evident defect/damage, error or omission, shortage in quantity, or failure to comply with the description or quote. The Client must notify any other alleged defect in the Plant and/or Services as soon as reasonably possible after any such defect becomes evident. Upon such notification, the Client must allow SE to inspect/review the Plant and/or Services.
Under applicable State, Territory and Commonwealth Law (including, without limitation the CCA), certain statutory implied guarantees and warranties (including, without limitation the statutory guarantees under the CCA) may be implied into these terms and conditions (“Non-Excluded Guarantees”).
SE acknowledges that nothing in these terms and conditions purports to modify or exclude the Non-Excluded Guarantees.
Except as expressly set out in these terms and conditions or in respect of the Non-Excluded Guarantees, SE makes no warranties or other representations under these terms and conditions including but not limited to the quality or suitability of the Plant and/or Services. SE’s liability in respect of these warranties is limited to the fullest extent permitted by law.
If the Client is a consumer within the meaning of the CCA, SE’s liability is limited to the extent permitted by section 64A of Schedule 2.
If SE is required to rectify, re-supply, or pay the cost of re-supplying any Plant and/or Services under this clause or the CCA, but is unable to do so, then SE may refund any money the Client has paid for the supply of Plant and/or Services, but only to the extent that such refund shall take into account the value of Plant and/or Services which have been supplied to the Client which were not defective.
If the Client is not a consumer within the meaning of the CCA, SE’s liability for any defect or damage in the Plant and/or Services is:
– limited to the value of any express warranty or warranty card provided to the Client by SE at SE’s sole discretion;
– otherwise negated absolutely.
Notwithstanding clauses 7.1 to 7.7 but subject to the CCA, SE shall not be liable for any defect or damage which may be caused or partly caused by, or arise as a result of:
– the Client’s failure to comply with any of their obligations under this contract;
– the Client continuing the use of the Plant (or machinery) after any defect became apparent or should have become apparent to a reasonably prudent operator or user;
– the Client failing to follow any instructions or guidelines provided by SE;
– fair wear and tear, any accident, or act of God.
Without prejudice to any other remedies SE may have, if at any time the Client is in breach of any obligation (including those relating to payment) under these terms and conditions SE may suspend or terminate the supply of Services to the Client. The SE will not be liable to the Client for any loss or damage the Client suffers because SE has exercised its rights under this clause.
SE may cancel these terms and conditions or cancel Delivery and/or the supply of Services at any time before the Plant is delivered and/or the Services have commenced by giving written notice to the Client. On giving such notice SE shall repay to the Client any sums paid in respect of the Charges. SE shall not be liable for any loss or damage whatsoever arising from such cancellation.
In the event that the Client cancels Delivery and/or supply of the Services, the Client shall be liable for any and all loss incurred (whether direct or indirect) by SE as a direct result of the cancellation (including, but not limited to, any loss of profits).
Without prejudice to any other remedies SE may have against the Client, and notwithstanding any Hire Term, this contract may be terminated by SE:
– upon giving the Client two (2) days’ written notice of termination at any time during the Hire Term;
– without notice, and all amounts owing to SE shall, whether or not due for payment, become immediately payable in the event that:
– any money payable to SE becomes overdue, or in SE’s opinion the Client will be unable to meet its payments as they fall due; or
– the Client becomes insolvent, convenes a meeting with its creditors or proposes or enters into an arrangement with creditors, or makes an assignment for the benefit of its creditors; or
– a receiver, manager, liquidator (provisional or otherwise) or similar person is appointed in respect of the Client or any asset of the Client; or
– the Client commits a breach of any part of this contract.
The Client agrees that no credit arising from dispute over the termination of the Hire Term shall be considered without presentation of the off-hire number to SE.
Default and Consequences of Default
Interest on overdue invoices shall accrue daily from the date when payment becomes due, until the date of payment, at a rate of two and one half percent (2.5%) per calendar month (and at SE’s sole discretion such interest shall compound monthly at such a rate) after as well as before any judgment.
If the Client owes SE any money the Client shall indemnify SE from and against all costs and disbursements incurred by SE in recovering the debt (including but not limited to internal administration fees, legal costs on a solicitor and own client basis, SE’s contract default fee, and bank dishonour fees).
Without prejudice to any other remedies SE may have, if at any time the Client is in breach of any obligation (including those relating to payment) under these terms of hire SE may repossess the Plant as per clause 19.2, or suspend or terminate the supply of Plant and/or Services to the Client and any of its other obligations under the terms and conditions. SE will not be liable to the Client for any loss or damage the Client suffers because SE has exercised its rights under this clause.
Privacy Act 1988
The Client agrees for SE to obtain from a credit reporting body (CRB) a credit report containing personal credit information (e.g. name, address, D.O.B, occupation, previous credit applications, credit history) about the Client in relation to credit provided by SE.
The Client agrees that SE may exchange information about the Client with those credit providers and with related body corporates for the following purposes:
– to assess an application by the Client; and/or
– to notify other credit providers of a default by the Client; and/or
– to exchange information with other credit providers as to the status of this credit account, where the Client is in default with other credit providers; and/or
– to assess the creditworthiness of the Client including the Client’s repayment history in the preceding two (2) years.
The Client consents to SE being given a consumer credit report to collect overdue payment on commercial credit.
The Client agrees that personal credit information provided may be used and retained by SE for the following purposes (and for other agreed purposes or required by):
– the provision of Plant and/or Services; and/or
– analysing, verifying and/or checking the Client’s credit, payment and/or status in relation to the provision of Plant and/or Services; and/or
– processing of any payment instructions, direct debit facilities and/or credit facilities requested by the Client; and/or
enabling the collection of amounts outstanding in relation to the Plant and/or Services.
SE may give information about the Client to a CRB for the following purposes:
– to obtain a consumer credit report;
– allow the CRB to create or maintain a credit information file about the Client including credit history.
The information given to the CRB may include:
personal information as outlined in 11.1 above;
– name of the credit provider and that SE is a current credit provider to the Client;
– whether the credit provider is a licensee;
– type of consumer credit;
– details concerning the Client’s application for credit or commercial credit (e.g. date of commencement/termination of the credit account and the amount requested);
– advice of consumer credit defaults, overdue accounts, loan repayments or outstanding monies which are overdue by more than sixty (60) days and for which written notice for request of payment has been made and debt recovery action commenced or alternatively that the Client no longer has any overdue accounts and SE has been paid or otherwise discharged and all details surrounding that discharge (e.g. dates of payments);
– information that, in the opinion of SE, the Client has committed a serious credit infringement;
– advice that the amount of the Client’s overdue payment is equal to or more than one hundred and fifty dollars ($150).
The Client shall have the right to request (by e-mail) from SE:
– a copy of the information about the Client retained by SE and the right to request that SE correct any incorrect information; and
– that SE does not disclose any personal information about the Client for the purpose of direct marketing.
SE will destroy personal information upon the Client’s request (by e-mail) or if it is no longer required unless it is required in order to fulfil the obligations of this contract or is required to be maintained and/or stored in accordance with the law.
The Client can make a privacy complaint by contacting SE via e-mail. SE will respond to that complaint within seven (7) days of receipt and will take all reasonable steps to make a decision as to the complaint within thirty (30) days of receipt of the complaint. In the event that the Client is not satisfied with the resolution provided, the Client can make a complaint to the Information Commissioner at www.oaic.gov.au.
Building and Construction Industry Security of Payments Act 1999
At SE’s sole discretion, if there are any disputes or claims for unpaid Plant and/or Services then the provisions of the Building and Construction Industry Security of Payments Act 1999 may apply.
Nothing in this agreement is intended to have the effect of contracting out of any applicable provisions of the Building and Construction Industry Security of Payments Act 1999 of New South Wales, except to the extent permitted by the Act where applicable.
If a dispute arises between the parties to this contract, then either party shall send to the other party a notice of dispute in writing adequately identifying and providing details of the dispute. Within fourteen (14) days after service of a notice of dispute, the parties shall confer at least once, to attempt to resolve the dispute. At any such conference, each party shall be represented by a person having authority to agree to a resolution of the dispute. In the event that the dispute cannot be so resolved either party may by further notice in writing delivered by hand or sent by certified mail to the other party refer such dispute to arbitration. Any arbitration shall be:
– referred to a single arbitrator to be nominated by the President of the Institute of Arbitrators Australia; and
conducted in accordance with the Institute of Arbitrators Australia Rules for the Conduct of Commercial Arbitration.
The failure by either party to enforce any provision of these terms and conditions 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 these terms and conditions shall be invalid, void, illegal or unenforceable the validity, existence, legality and enforceability of the remaining provisions shall not be affected, prejudiced or impaired.
These terms and conditions and any contract to which they apply shall be governed by the laws of New South Wales, the state in which SE has its principal place of business, and are subject to the jurisdiction of the Albion Park Court in that state.
Subject to clause 7, SE shall be under no liability whatsoever to the Client for any indirect and/or consequential loss and/or expense (including loss of profit) suffered by the Client arising out of a breach by SE of these terms and conditions (alternatively SE’s liability shall be limited to damages which under no circumstances shall exceed the Charges).
The SE may licence and/or assign all or any part of its rights and/or obligations under this contract without the Client’s consent.
The Client cannot licence or assign without the written approval of SE.
The SE may elect to subcontract out any part of the Services but shall not be relieved from any liability or obligation under this contract by so doing. Furthermore, the Client agrees and understands that they have no authority to give any instruction to any of SE’s sub-contractors without the authority of SE.
The Client agrees that SE may amend these terms and conditions at any time. If SE makes a change to these terms and conditions, then that change will take effect from the date on which SE notifies the Client of such change. The Client will be taken to have accepted such changes if the Client makes a further request for SE to supply any Plant to the Client.
Neither party shall be responsible for any delays in Delivery, collection of the Plant and/or supply of the Services due to causes beyond their control (including, but not limited to, acts of God, war, terrorism, mobilisation, civil commotion, riots, embargoes, orders or regulations of governments of any relevant jurisdiction, fires, floods, strikes, lockouts or other labour difficulties, shortages of, or inability to obtain shopping space, or land transportation).
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 covenants, agreements and obligations contained in this contract will not merge or terminate upon the termination of this contract, and to the extent that they have not be fulfilled or satisfied, or are continuing obligations, they will remain in force and effect.
Terms Applicable to the Wet and Dry Hire of Plant
– shall commence from the time the Plant departs from SE’s premises and will continue until (whichever last occurs):
– the return of the Plant thereto; or
– the Client notifies SE that the Plant is available for collection, provided that notification is given in sufficient time for the Plant to be collected and returned to SE’s premises by the close of business on that day. Otherwise, the Client will be charged an additional half day hire;
– the expiry of the specified Hire Term.
– are calculated by:
– daily hire usage of eight (8) hours over a continuous twenty-four (24) hour period;
– weekly hire usage of forty (40) hours over a five (5) days continuous period; and/or
monthly hire usage of one hundred and sixty (160) hours over a continuous four (4) week period.
At the sole discretion of SE, in the event the Client uses the Plant in excess of the time limits specified in clause 15.1(b) without the express authority of SE in writing, they will be liable to pay SE for the excess on a pro-rata basis.
In the event of Plant breakdown, provided the Client notifies SE immediately, Charges will not be payable during the time the Plant is not working, unless the condition is due to negligence or misuse on the part of or attributable to the Client.
The Hire Term shall be completed, and an off-hire number will be provided to the Client, when the Plant has been returned to SE in the same condition as when it was hired either:
– on or by the date and time specified herein or by any subsequent extension of the Hire Term; or
– where agreed to by SE, on the date agreed for collection by SE.
Where SE agrees to collect the Plant:
– SE will arrange for collection thereof within a reasonable period after a request to do so, and
the Client agrees to maintain the responsibility for the Plant whilst it is awaiting collection.
Delivery and Collection
Delivery of the Plant (“Delivery”) is taken to occur at the time that the Client, or the Client’s nominated carrier, takes possession of the Plant at SE’s address. SE (or SE’s nominated carrier) may agree to make delivery and/or collection of the Plant to and/or from the nominated site, and the Client:
will pay to SE any charges and expenses incurred thereby as per clause 21.1(a);
– ensure SE has clear and free access and egress to the site. Under no circumstances will SE accept liability or responsibility for damage sustained to pavements, paths, bricks, etc. or any residential or commercial terrain the Client chooses to operate near.
Whilst SE will use its best endeavours, any time or date given by SE to the Client for Delivery is an estimate only. The Client must still accept Delivery, even if late, and SE will not be liable for any loss or damage incurred by the Client as a result of Delivery being late.
The Client warrants that:
– by accepting Delivery, the Client is satisfied that the Plant complies with its description, is clean and in good working condition, and is suitable for the Client’s purposes;
– the Client will not use the Plant, nor permit it to be used, in such a manner as would permit an insurer to decline any claim (including, but not limited to, using the Plant for any illegal purpose, etc.);
– the Plant shall be kept in the Client’s own possession and control, and the Client shall not assign the benefit of this hire contract, nor be entitled to take a lien, or grant any encumbrance over the Plant.
The Client accepts full responsibility for, and shall keep SE indemnified against, all liability in respect of all actions, proceedings, claims, damages, costs and expenses in respect of any injury to persons, damage to property, or otherwise arising out of SE’s possession, use, maintenance, repair, storage or transport of the Plant during the Hire Term and whether or not arising from any misuse, negligence, failure or omission of the Client or any other persons. This indemnity shall not apply where it can evidentially be shown by the Client that such actions, proceedings, claims, etc. have arisen where Plant supplied by SE was in a defective state or condition.
The Client acknowledges that SE retains title to the Plant, and the Client:
– has the right to use the Plant as a mere bailee only;
– is not authorised to pledge SE’s credit for repairs to the Plant, or to create a lien over the Plant in respect of any repairs;
– must return the Plant to SE upon request to do so;
– shall not agree, offer or purport to sell, assign, sub-let, lend, pledge, mortgage, let or hire, or otherwise part with, or attempt to part with, personal possession of, or otherwise not to deal with, the Plant.
Notwithstanding anything else herein contained, SE, or any authorised agent of SE, may at any time (as the invitee of the Client) enter upon and into any premises where the Plant is located to exercise any rights they have under this contract or at law, including (if the need arises), the right to repossess the Plant from the relevant premises, without being responsible for any damage thereby caused, in the event the Client is in breach of any obligation (including those relating to payment) under this contract, and:
– the Client agrees to obtain all necessary consents from the owner, occupier and other interested parties (such as any mortgagee) of the relevant premises where the Plant is located to enable SE to do this;
– any costs incurred by SE as a result of so repossessing the Plant shall be charged to the Client;
– SE shall only charge the Client for the Hire Charges up to and including the time of repossession;
– in addition to SE’s right to repossess the Plant, SE is entitled, at its sole discretion, following any breach of any provision of this contract by the Client, to terminate this contract and/or sue for recovery of any damages or charges or loss suffered by SE, and/or to cancel any insurances effective in respect of the hired Plant.
The Client and SE shall comply with the provisions of all statutes, regulations and bylaws of government, local and other public authorities that may be applicable to the Services, including any occupational health and safety laws relating to building/construction sites and any other relevant safety standards or legislation
The Client shall:
– shall ensure that SE has clear and free access to the site at all times, and that such access is suitable to accept the weight of laden trucks, front end loaders or other earth moving equipment as may be deemed necessary by SE, to enable them to undertake the Services. SE shall not be liable for any loss or damage to the site (including, without limitation, damage to pathways, driveways and concreted or paved or grassed areas) unless due to the negligence of SE, and the Client agrees to indemnify SE against all costs incurred by SE in recovering such vehicles in the event they become bogged or otherwise immovable;
– prior to SE commencing the Services, advise SE of the precise location of all underground services on the site and clearly mark the same. The underground mains and services the Client must identify include, but are not limited to, electrical services, gas services, sewer services, pumping services, sewer connections, sewer sludge mains, water mains, irrigation pipes, telephone cables, fibre optic cables, oil pumping mains, and any other services that may be on site. Whilst SE will take all care to avoid damage to any underground services the Client agrees to indemnify SE in respect of all and any liability claims, loss, damage, costs and fines as a result of damage to services not precisely located and notified as per this sub-clause (b);
– obtain (at the expense of the Client) all licenses and approvals (including, but not limited to, local council and rail permits) that may be required for the Services;
– provide amenities and first aid services to SE’s employees in compliance with all applicable health and safety legislation in operation in the state where the Services are supplied;
– provide adequate security for any Plant left at the site overnight or during periods when the site is left unattended, unless it has been otherwise agreed in writing that SE arrange such security on the Client’s behalf.
SE reserves the right not to enter the site if SE believes it unsafe, and the Client shall remain liable for the Charges payable until the issue is resolved.
Notwithstanding that the operator of the Plant is an employee or representative of SE, the operator shall operate the Plant in accordance with the instructions of the Client, and accordingly, the Client shall be liable for all responsibility and costs incurred as a result of the actions of the operator whilst following the Client’s instructions.
In the event the Client requires an employee of SE to undertake a recognised safety course or medical examination during working hours, the Client will be liable to pay the hourly labour rate (per employee) for that period, notwithstanding that the Plant is not being operated during such time. If any course is undertaken outside of the Hire Term then the Client shall be liable to pay SE’s standard (and/or overtime, if applicable) hourly labour rate.
In addition to the Charges, the Client will be required to pay to SE, immediately upon request:
where applicable, the costs of delivering and/or collecting the Plant (as per clause 16.1);
all costs incurred in cleaning and/or repairing the Plant where the Plant is not returned in good working order; and
any lost hire fees SE would have otherwise been entitled to for the Plant, under this, or any other hire contract.
The Client shall:
– at their own expense, service, clean and maintain the Plant in good and substantial repair and condition, reasonable wear and tear excepted (including, but not limited to, supplying all fuel, oil and grease necessary for operation, service and maintenance of the Plant);
– operate and maintain the Plant in a cautious and prudent manner, in accordance with WorkCover and OHS regulations;
– employ only persons who are properly trained, competent, certified/licensed by WorkCover or relevant state authority, or any successor organisation if applicable, competent and conversant with and the operations of the Plant, and uses the Plant in a skilful and proper manner and only for the purpose and within the capacity for which the Plant was designed;
– secure the Plant when not in use and to ensure that all reasonable measures are taken to protect the Plant;
– notify SE immediately (by telephone) of the full circumstances of any mechanical breakdown, failure or accident, or any accident resulting in the injury to persons or damage to property (including damage to the Plant) involving the Plant. The Client is not absolved from the requirements to safeguard the Plant by giving such notification;
– on request, advise SE of the current location of the Plant and grant access thereto;
shall ensure that the Plant is returned to SE in good working order and clean of all foreign matters. The Client’s failure to adhere to this clause shall incur additional charges as per clause 21.1(b).
The Client shall not:
– without the prior consent of SE, make any alterations, additions or replacements to the Plant. Anything the Client wants to undertake to the Plant that falls outside the scope of work as detailed in this agreement, the Client must seek approval in writing from SE;
– do or cause or carryout any act, matter or thing which is likely to endanger the safety or condition of the Plant;
– remove the Plant from the State of New South Wales (or approved site) without the prior written consent of SE;
exceed the recommended or legal load and capacity limits of the Plant;
– use or carry any illegal, prohibited or dangerous substance in, or on, the Plant;
fix any of the Plant in such a manner as to make it a permanent fixture;
– The Client accepts full responsibility for the safekeeping of the Plant and indemnifies SE for all loss, theft, or damage to the Plant howsoever caused and without limiting the generality of the foregoing whether or not such loss, theft, or damage is attributable to any negligence, failure, or omission of the Client.
The Client will insure, or self-insure, SE’s interest in the Plant against physical loss or damage including, but not limited to, the perils of accident, fire, theft and burglary and all other usual risks and will affect adequate Public Liability Insurance covering any loss, damage or injury to property arising out of the use of the Plant. Further the Client will not use the Plant nor permit it to be used in such a manner as would permit an insurer to decline any claim.
The Client accepts full responsibility for and shall keep SE indemnified against all liability in respect of all actions, proceedings, claims, damages, costs and expenses in respect of any injury to persons or damage to property arising out of the use of the
Plant during the Hire Term however arising and whether or not arising from any negligence, failure or omission of the Client or any other persons, and immediately on request by SE, the Client will pay the new list price of any Plant that is, for whatever reason, destroyed, written off or not returned to SE.
The Client indemnifies SE against, and shall pay SE immediately on demand, all costs relating to cleaning the Plant should it be returned in an un-cleaned state and/or repainting (if necessary).
Notwithstanding SE’s retention of title in the Plant, all risk for the Plant passes to the Client on Delivery.
The Client is not authorised to pledge SE’s credit for repairs to the Plant, or to create a lien over the Plant in respect of any repairs.
In the event of damage to the Plant, the Client shall be responsible to pay on demand all costs involved in repairing such damage, including but not limited to:
damage caused by the negligence of the Client, or its agent(s);
– damage caused by vandalism;
damage caused to the Plant by operator misuse thereof;
– damage to the tyres of the Plant, other than damage caused by fair wear and tear; and/or
damage caused by the ordinary use of the Plant.
The Client shall continue to pay the Charges at the specified rate until the Plant is returned to good operating condition as determined by SE.
Terms Applicable to Transport Services
Variation to the Charges
In addition to clause 4.2, SE may:
– by giving notice to the Client increase the Charges to reflect any increase in the cost to SE beyond the reasonable control of SE (including, without limitation, foreign exchange fluctuations, or increases in taxes, duties or insurance premiums);
– charge freight by weight, measurement or value, and may at any time re-weigh, or re-value or re-measure or require the Goods to be re-weighed, or re-valued or re-measured and charge proportional additional freight accordingly.
SE not a Common Carrier
SE is not a Common Carrier and will accept no liability as such. All Goods are carried or transported and other services are performed by SE subject only to these conditions, and SE reserves the right to refuse the carriage or transport of articles for any person, corporation or body, and the carriage or transport of any class of articles at its discretion.
Method of Transport and Route Deviation
If the Client instructs SE to use a particular method of carriage, SE will give priority to the method designated but if that method cannot conveniently be adopted by SE the Client shall be deemed to authorise SE to carry or have the Goods carried by another method(s).
The Client shall be deemed to authorise any deviation from the usual route or manner of carriage of Goods that may in the absolute discretion of SE be deemed reasonable or necessary in the circumstances.
Charges Earned and Demurrage
The Charges shall be considered earned as soon as the Goods are loaded and dispatched from the Client’s nominated address.
The Client will be and shall remain responsible to SE for all its proper charges incurred for any reason. An additional fee may be charged by SE in respect of any delay in excess of thirty (30) minutes in loading or unloading occurring other than from the default of SE. Such permissible delay period shall commence upon SE reporting for loading or unloading. Labour to load or unload the vehicle shall be the responsibility and expense of the Client or Consignee.
Unless otherwise agreed in advance in writing with SE the Client or their authorised agent shall not tender for carriage or for storage any explosive, inflammable or otherwise Dangerous Goods. The Client shall be liable for and hereby indemnifies SE for all loss or damage whatsoever caused by any Dangerous Goods.
The Client expressly warrants to SE that the Client is either the owner or the authorised agent of the owner of any Goods or property that is the subject matter of this contract of cartage and/or storage and by entering into this contract the Client accepts these conditions of contract for the Consignee as well as for all other persons on whose behalf the Client is acting.
It is the Client’s sole responsibility to address adequately each consignment and to provide written delivery instructions to enable effective delivery.
Delivery and Consignment Note
SE is authorised to deliver the Goods at the address given to SE by the Client for that purpose and it is expressly agreed that SE shall be taken to have delivered the Goods in accordance with this contract if at that address SE obtains from any person a receipt or a signed delivery docket for the Goods.
It is agreed that the person delivering any Goods to SE for carriage or forwarding is authorised to sign the consignment note for the Client.
Loss or Damage and Insurance
Subject to clause 7, and any statutory provisions imposing liability in respect of the loss of or damage to the Goods, SE shall not be under any liability for:
– any delay or any loss or damage to the Goods occasioned during carriage arising from any force majeure event (as per clause 14.8);
– deterioration, contamination (including any contamination of any grain or other cargo compromising the Goods), wrongful delivery, misdelivery, delay in delivery or non-delivery of the Goods whenever or howsoever occurring (and whether the Goods are or have been in the possession of SE or not)
– any instructions, advice, information or service given or provided to any person, whether in respect of the Goods or any other thing or matter, nor for any consequential or indirect loss, loss of market or consequences of delay; and
– any act or omission whether wilful, reckless, negligent or otherwise of SE, or its servants or agents or subcontractors;
any latent defect or inherent vice or natural deterioration or wastage of the Goods or packaging;
– any act, omission or neglect of the Client, including insufficient or improper packaging, labelling or addressing, or failure to take delivery, or any handling, loading, storage or unloading of the Goods.
SE will not insure the Goods, and:
– the Goods are carried and stored at the Client’s sole risk and not at the risk of SE;
– it remains the Client’s responsibility to ensure that the Goods are insured adequately or at all;
– under no circumstances will SE be under any liability with respect to the arranging of any such insurance and no claim will be made against SE for failure to arrange or ensure that the Goods are insured adequately or at all.
Notwithstanding clause 29, in the event that the Client believes that they have any claim against SE then they must lodge any notice of claim for consideration and determination by SE within seven (7) days of the date of delivery, or for non-delivery within seven (7) days of the anticipated date of delivery or the removal or destruction of the Goods.
The failure to notify a claim within the time limits under clause 30.1 is evidence of satisfactory performance by SE of its obligations hereunder.
The Client undertakes that no claim or allegation shall be made against any servant or agent of SE which attempts to impose upon any of them any liability whatsoever in connection with the Goods and, if any such claim or allegation should nevertheless be made, to indemnify SE and any such servant or agent against all consequences thereof.
In the event that this agreement includes any handling, installation, removal, assembly or erection of any kind, these services are undertaken under the strict basis that SE accepts no liability for any loss, damage or injury of any kind whatsoever or howsoever arising, caused or incurred or incurring during any part of the movement. This disclaimer extends to include not only loss of, or damage to, itemised equipment itself, but loss, damage or injury to any person, property or thing damaged during the movement.