TERMS & CONDITIONS OF HIRE
1. Definitions and Interpretation
- In this agreement, unless the context otherwise requires, capitalised terms have the meaning given to them in the Proposal, and:
Additional Costs means any additional costs, expenses, damages or losses suffered or incurred by us.
Business Day means a day on which banks are open for general banking business in Victoria, excluding Saturdays, Sundays and public holidays.
Corporations Act means the Corporations Act 2001 (Cth).
Fee Variation has the meaning given in clause 3.2.
Hire Period means the term and/or length of period that you will utilise the services.
Insolvency Eventmeans the occurrence of any one or more of the following events in relation to you:
- you are or state that you are insolvent or you are deemed or presumed to be insolvent under any applicable laws;
- an application or order is made for your winding up, bankruptcy or dissolution or a resolution is passed or any steps are taken to pass a resolution for your winding up or dissolution;
- an administrator, provisional liquidator, liquidator or person having a similar or analogous function under the laws of any relevant jurisdiction is appointed in respect of you or any action is taken to appoint any such person and the action is not stayed, withdrawn or dismissed within 10 Business Days;
- a controller is appointed in respect of any of your property;
- you are deregistered under the Corporations Act or other legislation or notice of your proposed de-registration is given to you;
- a distress, attachment or execution is levied or becomes enforceable against you or any of your property;
- you enter into or take action to enter into an arrangement, composition or compromise with, or assignment for the benefit of, all or any class of your creditors or members or a moratorium involving any of them;
- a receiver or manager (or both) or trustee in bankruptcy is appointed in respect of you or your property;
- a petition for the making of a sequestration order against your estate is presented and the petition is not stayed, withdrawn or dismissed within 10 Business Days or you present a petition against yourself; or
- anything analogous to or of a similar effect to anything described above under the law of any relevant jurisdiction occurs in respect of you.
Price means the fees and charges and price (as agreed between the parties) and any additional costs incurred as a result of any breach of your obligations outlined in clause 4.
Liability means any expense, cost, liability, loss, damage, claim, demand or proceeding (whether under statute, contract, equity, tort (including negligence), indemnity or otherwise), howsoever arising, whether direct or indirect and/or whether present, unascertained, future or contingent.
Party means a party to this agreement, and Parties means all of them.
Personal Information has the meaning given in the Privacy Act;
Privacy Act means the Privacy Act 1988 (Cth);
Start Date means the date set out in the Agreement as the beginning of the hire period.
Skip Bin(s) and Trailer means any waste bin, trailer or other waste disposal equipment provided to you.
Services means the service provided by us of hiring out skip bin and trailer to you.
In this agreement, unless the context otherwise requires:
- the singular includes the plural and vice versa;
- headings are for convenience only and do not affect interpretation;
- a reference to a clause, paragraph, schedule or annexure is a reference to a clause, paragraph, schedule or annexure, as the case may be, of this agreement;
- if any act which must be done under this agreement is to be done on a day that is not a Business Day then the act must be done on or by the next Business Day;
- a reference to any legislation or law includes subordinate legislation or law and all amendments, consolidations, replacements or re-enactments from time to time;
- where a word or phrase is defined, its other grammatical forms have a corresponding meaning;
- a reference to a natural person includes a body corporate, partnership, joint venture, association, government or statutory body or authority or other legal entity and vice versa;
- includes and similar words mean includes without limitation;
- no clause will be interpreted to the disadvantage of a Party merely because that Party drafted the clause or would otherwise benefit from it;
- a reference to a party to an instrument includes that party’s executors, administrators, successors, permitted assigns and persons substituted by novation from time to time;
- a reference to this agreement or any other instrument includes the instrument, all schedules and all annexures as novated, amended, supplemented, varied or replaced from time to time;
- a reference to a covenant, obligation or agreement of two or more persons binds or benefits them severally;
- a reference to time is to local time in Victoria, Australia; and
- a reference to $ or dollars refers to Australian Dollars.
- This agreement takes effect on and from the Start Date. No cancellations will be accepted by us after the Start Date, other than in accordance with clause 3.2.
- We will proceed with the provision of the Services within a reasonable time after the later of:
(1) the Start Date;
(2) the satisfaction of any other conditions precedent contemplated by this agreement.
3 Our obligations
- In consideration of your payment of the Fee, we will provide the Services in accordance with this agreement.
- If this agreement expresses a time within which the Services are to be provided, you acknowledge and agree that any such time is an estimate only and creates no obligation on us to provide the Services by that time.
- Despite anything to the contrary, to the maximum extent permitted by law, we will not be responsible, and will have no Liability, for any works, services, goods, materials or items which:
(1) do not form part of the Services, as expressed in this agreement; or
(2) have not been provided by us.
This clause 3.1(c) will survive the termination or expiry of this agreement.
- (a) Subject to clause 3.2(b), you may request a variation or change to the Services (length of hire and date of hire), by providing notice to us, with details of the variation or change.
- If a variation is requested less than 72 hours prior to the start date for the Services, a cancellation fee, being 100% of the Services charge, may be charged by us to you.
- Despite anything to the contrary:
(1) we will not be obliged to vary or change the Services, including the timing for the provision of the Services, unless:
(A) we confirm:
(a) we accept the variation or change; and
(b) the effect of the variation or change, including to the price (Price Variation),
(B) the price has been adjusted to reflect the Price Variation; and
(2) without limiting and in addition to clause 4.2(b)(1), where:
(A) the Services are varied or changed, or the costs of providing the Services increase; and
(B) the cause of that variation, change or increase relates to, or is connected with, an event or circumstance beyond our reasonable control,
you must pay us the additional costs and expenses we suffer or incur as a debt due and immediately payable to us.
4 Your obligations
- You must comply with:
(1) this agreement;
(2) our reasonable requests or requirements; and
(3) all laws.
- You acknowledge and accept the use of skip bin tracking technology, should we need to implement this process at any stage of this agreement.
- The load limit for our skip bins is 500kg (Standard skip),800kg (Super Skip), 400kg (Mini Skip). Skips returned ‘overloaded’ may be weighed and a charge of $0.30 per 1 kilogram will be applied (“overload fee”). The overload fee is not a penalty, and is a reasonable estimate of our likely extra costs.
- The following materials are considered hazardous and not acceptable by us: Batteries, mattresses, medical and/ or radioactive waste, oil filters, oil, grease, paint, acids, asbestos, liquid/s and tyres. Incorrect disposal of asbestos or other dangerous materials may lead to criminal prosecution. Soil containing fire ants should also be excluded from our skip bins. You are liable for any cost related to the disposal of asbestos or fire ants.
- You agree that you are liable for any fines incurred while in possession of our skip bins and trailer.
- Once delivered, you agree that you will not attempt to move the skip bin and trailer from their placed position. You will contact us as soon as possible if the skip bin and trailer is involved in an accident.
- You must provide as identity a valid Driving Licence and credit card (or one other form of ID). You agree that details of these documents may retained by us.
- You agree to pay full costs for the replacement of parts and / or repairs to our skip bin and trailer should the skip bin and trailer be subjected to damage or theft of parts during the period of hire. These parts/ repairs will be undertaken by a representative of us as seen necessary.
- You will ensure that the skip bin and trailer will not be used for any illegal purpose;
- The skip bin and trailer are the property of us and you at no time have right, title or interest in the skip bin and trailer except that it is hired to the you for the disposal of waste.
- The skip bin and trailer must be made available for pickup by us at the end of the hire period stipulated on the hire agreement.
- We reserve the right solely at our discretion to extend the period of hire up to 48 hours maximum by telephone prior to the expiry of the agreement.
- The normal advertised daily hire rate will become payable if you fail to return a trailer at the end of the agreed hire period. This rate may be charged daily until the costs of the trailer are recovered.
- The replacement value of the skip bin and trailer hired is $6,400. You agree to this value as part of acceptance of this agreement.
- You agree that you will not tow or attempt to move the skip bin and trailer at any time throughout the term of this agreement.
- Should we need to take legal action to recover the skip bin and trailer, repair costs or any value of the skip bin and trailer then you agree to pay any associated court cost’s and/or solicitor’s fees required to take the legal action.
- You agree that you will not sell or attempt to sell, sub-let, rent, mortgage, assign, encumber, create or allow to be created any interest over our skip bin and trailer.
- If you provided us a Credit Card for payment, you authorise us to charge your credit card with any additional charges including, but not limited to the following:
(1) Fees or charges related to overloading, loading forbidden items, tolls and/ or fines, extended hire, parking offenses, any damage or loss, recovery costs, transport costs, legal expenses incurred in the loss/ damage or recovery of skip bin and trailer.
- You agree that one of our representatives may enter any premises where the skip bin and trailer may be located for the purpose of taking repossession of the skip trailer.
- You must pay us:
(1) the Fee upon delivery of the skip bin and trailer to the delivery address; and (2) any other amount payable to us under this agreement.
- If any payment has not been made in accordance with the Payment Terms, where the payment is more than 7 days overdue, we may (at our absolute discretion):
(1) immediately cease providing the Services, and recover as a debt due and immediately payable from you, our Additional Costs of doing so;
(2) charge interest at a rate equal to the Reserve Bank of Australia’s cash rate from time to time plus 8% per annum, calculated daily and compounding monthly, on any such amounts unpaid after the due date;
(3) engage debt collection services and/or commence legal proceedings in relation to any such amounts; and/or
(4) report you to any independent credit data agencies.
- You must provide all assistance which we request to enable us to comply with our obligations under this agreement or at law.
- You warrant that you have not relied upon any warranty, representation, statement, offer or documentation made or provided by or on behalf of us, whether before or after the Start Date.
- This clause 5 will survive the termination or expiry of this agreement.
- The Fee may be increased on 1 July each year upon written notice to you.
- Any change in the Fee will take effect from the next billing cycle following such change.
- The standard methods of payment of all fees under this agreement are via bank transfer or credit card.
- A transaction fee applies if paying by credit card, as updated from time to time.
- You must pay the price and any other amounts payable upon delivery of the skip bin and trailer to the delivery address, unless specified otherwise by us in writing.
- Despite anything to the contrary, to the maximum extent permitted by law:
(1) our maximum aggregate Liability arising from or in connection with this agreement (including the Services and/or the subject matter of this agreement) will be limited to, and must not exceed, the portion of the Fee paid by you to us for the Services the subject of the relevant claim; and
(2) we will not be liable to you for any loss of profit (including anticipated profit), loss of benefit (including anticipated benefit), loss of revenue, loss of business, loss of goodwill, loss of opportunity, loss of savings (including anticipated savings) and loss of reputation.
whether under statute, contract, equity, tort (including negligence), indemnity or otherwise.
- Despite anything to the contrary, to the maximum extent permitted by law, we will have no Liability, and you release and discharge us from all Liability, arising from or in connection with any:
(1) loss of, or damage to, any property or any injury to, or death of, any person;
(2) damage to your reputation;
(3) failure or delay in providing the Services; or
(4) breach of this agreement or any law, where caused or contributed to by any:
(a) event or circumstance beyond our reasonable control; or
(b) act or omission of you or anyone else.
(c) You agree that, to the maximum extent permitted by law, this agreement excludes all terms, conditions and warranties implied by statute, in fact or on any other basis, except to the extent such terms, conditions and warranties are fully expressed in this agreement.
(d) This clause will survive the termination or expiry of this agreement.
- This agreement will terminate immediately upon written notice by:
(1) either Party, if mutually agreed in writing between the Parties;
(2) us, if you are in breach of this agreement and that breach has not been remedied within five Business Days of being notified by us;
(3) us, if you are subject to an Insolvency Event; or
(4) you, if we are in breach of a material term of this agreement and that breach has not been remedied or overcome within 15 Business Days of being notified by you.
- In the event that you terminate this agreement under clause 9 within the Term, you must pay to us early termination costs equivalent to the loss caused to us as a consequence of you terminating this agreement within the Term.
- Termination of this agreement will not affect any rights or liabilities which a Party has accrued under it.
Upon termination of this agreement, you will:
(1) where this agreement is terminated under clauses 9(a)(1) to 9(a)(3)(inclusive), pay:
(A) the Fee in full; and
(B) all Additional Costs resulting from the termination of this agreement, to us as a debt due and immediately payable;
(2) where this agreement is terminated under clause 9(a)(4), immediately pay the Fee and all other amounts due and payable to us, as if an invoice had been issued by us to you under clause 5.2 on the date of termination;
(3) not disparage or otherwise make any unfavourable statements or comments regarding us or our Personnel, either directly or by implication, verbally or in writing;
(4) immediately return to us all property, belonging to us;
This clause will survive the termination or expiry of this agreement.
You represent and warrant to us:
- you have full legal capacity and power to enter into this agreement, to perform your obligations under this agreement;
- you are not subject to an Insolvency Event;
- this agreement constitutes legal, valid and binding obligations, enforceable in accordance with its terms; and
- the execution and performance by you of this agreement and each transaction contemplated by it does not conflict with any law, order, judgment, rule or regulation applicable to you or any instrument binding on you.
- A notice or other communication given under this agreement must be:
(1) in writing, in English and signed by the sender; and
(2) addressed and delivered to the intended recipient by hand, prepaid post or email in accordance with the notice details last notified by the recipient to the Parties.
- A Party’s notice details are set out in this agreement. A Party may change its notice details by written notice to the other Parties.
- A notice or communication is taken as having been given: (1) when left at a Party’s current address for notices; (2) if mailed, on the third Business Day after posting (if delivered to an address within the same country) or on the tenth Business Day after posting (if delivered to an address within another country); or (3) if sent by email, if sent before 5pm on a Business Day in the place of receipt then on the Business Day when it is sent, otherwise on the following Business Day.
- Any failure or delay by a Party in exercising a power or right (either wholly or partially) in relation to this agreement does not operate as a waiver or prevent that Party from exercising that power or right or any other power or right. A waiver must be in writing.
10.4 Powers, rights and remedies
- Except as provided in this agreement or permitted by law, the powers, rights and remedies of a Party under this agreement are cumulative and in addition to any other powers, rights and remedies the Party may have.
10.5 Consents or approvals
- Except as provided in this agreement, a Party may give, attach conditions to or withhold any consent or approval under this agreement at its sole and absolute discretion. A Party is not obliged to give reasons for giving or withholding its consent or approval or for giving its consent or approval subject to conditions.
- We may assign, transfer or otherwise deal with all or any of our rights or obligations under this agreement without your prior written consent.
- You may not assign, transfer or otherwise deal with all or any of your rights or obligations under this agreement without our prior written consent.
- Any purported dealing in breach of this clause is of no force or effect.
10.7 Further assurance
- Each Party must promptly do all things and execute all further instruments necessary to give full force and effect to this agreement and their obligations under it.
10.8 Costs and expenses
- Each Party must pay its own costs and expenses (including legal costs) in connection with the negotiation, preparation and execution of this agreement and any instrument relating to it.
10.9 Relationship of Parties
- This agreement is not intended to create a partnership, joint venture or agency relationship between the Parties. Nothing in this agreement gives a Party authority to bind the other Party in any way.
10.10 Independent legal advice
- Each Party acknowledges and agrees that it has had an opportunity to read this agreement, it agrees to its terms and, prior to executing it, it has been provided with the opportunity to seek independent legal advice about its terms.
- If a provision of this agreement is held to be void, invalid, illegal or unenforceable, that provision must be read down as narrowly as necessary to allow it to be valid or enforceable.
- If it is not possible to read down a provision (in whole or in part), that provision (or that part of that provision) is severed from this agreement without affecting the validity or enforceability of the remainder of that provision or the other provisions in this agreement.
10.12 Entire agreement
- This agreement contains the entire understanding between the Parties, and supersedes all previous discussions, communications, negotiations, understandings, representations, warranties, commitments and agreements, in respect of its subject matter.
- This agreement may only be amended by written instrument executed by all Parties.
- This agreement may be executed in any number of counterparts that together will form one instrument.
10.15 Governing law and jurisdiction
- This agreement is governed by the laws of Victoria. Each Party irrevocably and unconditionally submits to the exclusive jurisdiction of the courts operating in Victoria and any courts entitled to hear appeals from those courts and waives any right to object to proceedings being brought in those courts.