Hire Agreement – PlantPro

THIS AGREEMENT is BETWEEN:
(1) PLANT PRO PTY LTD (ACN 674 071 642) (Owner);

(2) The party identified as the Hirer in Owner’s reservation form (Hirer); and

(3) The party identified as a Guarantor (if any) in Owner’s reservation form (each a Guarantor).

GENERAL TERMS & CONDITIONS OF HIRE

1. DEFINITIONS
1.1 In this Agreement:

(a) “Agreement” means these General Terms and Conditions of Hire, Owner’s reservation form and any schedules or annexures to this Agreement;

(b) “Additional Charges” means the Additional Charges specified in Owner’s reservation form (if any) payable by Hirer where the Equipment is used for more than the Specified Hours;

takes possession of the Equipment;

(d) ”Completion Date” means the date of delivery of the

Equipment to Owner;

(e) “Deposit” means the deposit specified in Owner’s reservation form (if any);

(f) “Dry Hire” means the lease of the Equipment to

Hirer without an Operator or labour provided by Owner;

(g) “Equipment” means the equipment described in Owner’s reservation form and any replacement for that equipment and includes all accessories and other equipment;

(h) “Hire Fee” means the hire fee specified in Owner’s reservation form and includes any rate or fees applicable for the provision of an Operator where this Agreement is a Wet Hire or as otherwise agreed by the parties;

(i) “Hirer” means the person, firm, organisation or corporation hiring Equipment from Owner and includes any officer, employee or agent of Hirer who signs this or any other document purportedly on Hirer’s behalf who shall be taken by Owner as having full authority to sign on Hirer’s behalf;

(j) “Hire Period” means the hire period specified in Owner’s reservation form (if any) and includes any period of time commencing on the Commencement Date and extending until the Completion Date;

(k) “Location” means the place specified in Owner’s reservation form (if any) or such other place agreed in writing by the parties from time to time that the Equipment may be used or, as the context requires, the premises or address at which Hirer and Owner have agreed in writing from time to time that the Equipment will be kept, used or stored (as the case may be);

(l) “Major Repairs” means any of the items of repairs specified in Owner’s reservation form (if any) and which may include other items of repair as agreed in writing between the parties from time to time;

(m) “Operating Instructions” means any operating instructions or manual provided to Hirer with respect to the Equipment;

(n) “Operator” means an operator of the Equipment

provided by Owner;

(o) “Servicing Period” means the accumulated hours or kms which require a service as per the Equipment manufacturers recommended service period interval;

(p) “Specified Hours” means the Specified Hours

specified in Owner’s reservation form (if any); and

(q) “Wet Hire” means where the Equipment is hired with an

Operator.

2. GRANT AND HIRE PERIOD
2.1 Grant
Owner agrees to lease the Equipment to Hirer on a Dry Hire basis.

2.2 Hire Period
(a) Hirer shall lease the Equipment for the Hire Period.

(b) Owner may, in its discretion, agree to extend the Hire Period, should this occur then either a new Hire Agreement will be signed, or conditions will remain the same as the original Hire Agreement.

3. HIRE FEE AND PAYMENT
3.1 Hire Fee and Deposit
(a) Hirer shall pay the Hire Fee and Additional Charges in accordance with this Agreement during the Hire Period.

(b) Where required, Hirer must pay the Deposit on or before the Commencement Date. Owner reserves the right not to provide the Equipment to Hirer if Hirer fails to pay the Deposit in full.

3.2 Payment
The Hire Fee and Additional Charges shall be payable strictly in accordance with following terms:

(a) For Hirer with approved credit accounts the Hire Fee and Additional Charges (if applicable) are payable within 30 days of the date of each invoice provided to Hirer by Owner without set off or deduction which will be provided on a monthly basis;

(b) For Hirer with no credit account or accounts which exceed their approved credit limits, Hirer must pay 1 months’ Hire Fee in advance and remain one month in advance at all times;

(c) For Hirer with no credit account and in the case of hire periods less than one month, Hirer must pay an amount in advance as nominated by Owner and remain in advance at all times;

(d) Hirer must pay the Hire Fee and Additional Charges by direct electronic payment to a bank account nominated by Owner or such other method of payment as agreed between the parties; and

(e) If Hirer does not pay any amount payable in accordance with this Agreement by the due date, Owner reserves the right to charge Hirer an amount equal to 8% interest compounded daily on any amounts that remain due and payable until the date of payment of those amounts in full.

3.3 Hirer’s other payments
Unless otherwise agreed by the parties in writing, Hirer must pay all repair, service and operating expenses in respect of the Equipment including (without limitation) the cost of fuel and lubricant, the cost of replacement parts and accessories and the costs of complying with any requirements referred to in clause 7.

4. WET HIRE
4.1 In the event of Wet Hire of the Equipment:

(a) the Operator shall operate the Equipment in accordance with Hirer’s lawful direction and instructions. Owner shall not be liable for any actions of the Operator or any direct or indirect loss or damage suffered or incurred either directly or indirectly by Hirer or Hirer’s officers, employees, contractors or agents in connection with the operation of the Equipment by the Operator;

(b) Hirer shall provide amenities and first aid services to Owner’s Operator of the Equipment in compliance with all relevant health & safety legislation;

(c) subject to any applicable workplace, safety or other relevant laws, the fees applicable for the hire of an Operator shall be based on signed timesheets but will be no less than a minimum working day of ten (10) hours per day, allowing a thirty (30) minute unpaid lunch break. Additional charges shall apply if the Equipment is used in addition to these hours or on a weekend or public holiday, at Owner’s discretion;

(d) it is Hirer’s responsibility to ensure that any required safety courses, medicals and inductions are attended or completed by the Operator of the Equipment and Hirer agrees and acknowledges that any time taken to attend or complete such course shall be charged as per the normal Hire Fee rates;

(e) Owner and the Operator shall not be required to comply with any direction or instruction from Hirer if it is unsafe, unlawful or unreasonable to do so.

5. DELIVERY & INSTALLATION
5.1 Delivery
(a) Unless otherwise agreed, transportation costs to and from the Location, including the supply of additional labour, Equipment, materials and transportation expenses and other requirements are at the cost of Hirer.

(b) Unless otherwise specified, Hirer is responsible for the supply of all necessary craneage, labour and other handling equipment to offload, assemble, erect, dismantle and load the Equipment at the Location or any other location.

5.2 Prior Inspection
(a) Hirer agrees as between Hirer and Owner that Hirer, on taking delivery of the Equipment, will accept the Equipment on an “as is” basis with all faults and defects (if any) and that the General Condition Report provided by Owner shall be conclusive evidence of the state of the Equipment;

(b) The Equipment will be deemed to having been accepted as suitable for Hirer’s requirements unless Hirer has provided Owner with written notification to the contrary within 36 hours of the delivery or collection of the Equipment. The failure to provide such notice will irrevocably constitute acceptance of the Equipment by Hirer for all purposes of this Agreement and will bind Hirer absolutely that the Equipment has been fully and unconditionally accepted by Hirer for the purposes of this Agreement;

(c) Hirer acknowledges that Owner may acquire or will acquire the Equipment for the sole purpose of this Agreement. Accordingly, if Hirer fails to accept the Equipment in accordance with this clause 5, Hirer will pay Owner as and by way of liquidated damages the sums Hirer would have been liable to pay under this Agreement had Hirer accepted the Equipment and then immediately returned them to Owner.

5.3 Installation
(a) If applicable, Owner will notify Hirer prior to the Commencement Date as to whether the Equipment is to be installed mobilised or de-mobilised by Owner or Hirer.

(b) If installation, mobilisation, demobilisation or delivery is to be undertaken by Owner, any associated charges may apply at Owner’s discretion.

6. TITLE TO EQUIPMENT
Hirer acknowledges that in all circumstances Owner retains title to the Equipment (even if Hirer goes into liquidation or becomes bankrupt during the Hire Period) and the Equipment is not deemed to be a fixture.

7. HIRER’S OBLIGATIONS
7.1 Service and Maintenance
Subject to this clause 7, Hirer must:

(a) at its own expense , at every Servicing Period ensure that the Equipment is serviced, maintained and repaired in accordance with all manufacturer’s recommendations and specifications, Operating Instructions and guidelines or other reasonable directions of Owner given from time to time and otherwise ensure that the Equipment is in proper working order and condition and in good substantial repair. Full copies of all service sheets and evidence of such servicing must be provided to Owner by email or such other method notified by Owner from time to time;

(b) undertake Major Repairs (at Hirer’s sole cost) of the Equipment at every Servicing Period or when required, which shall include (but shall not be limited to) checking and, if required, repairing or adjusting, including any damage to the Equipment;

(c) complete the manufacturer’s oil sampling analysis at every oil change period on all components in the Equipment and provide SOS sampling record to Owner by email or such other method notified by Owner from time to time;

(d) supply and apply all fuel, oil, lubricants, water, grease

G.E.T. and other consumables necessary for the operation, service and maintenance of the Equipment;

(e) promptly replace all parts which may from time to time become worn out, lost, stolen, compulsorily acquired, destroyed, seized, confiscated, damaged beyond repair or permanently rendered unfit for use by damage or obsolescence. All replacement parts will be the property of Owner;

(f) keep the Equipment clean; and

(g) repair and replace all tyre and track wear to the condition as per the time of on hire;

(h) do, repair or undertake any other thing as indicated in Owner’s reservation form (if any) including keeping and replacing all satisfactory and condition fluid levels, electrical wiring, electrical switches, lights, leaks, vee belts, tyre/undercarriage wear, ground engaging tools (GET) and bucket/tray.

7.2 Failure to Service
Where Hirer fails to service or maintain the Equipment in accordance with clause 7.1, Owner shall be entitled to increase Hirer Fee by 100% until such time as the Equipment is serviced in accordance with clause 7.1.

7.3 Owner Servicing
(a) Owner reserves the right to take possession of the Equipment in the instance that Hirer fails to comply with any conditions in clause 7.1 or if Owner wishes to

implement its own servicing or undertake major repairs to the Equipment and Hirer must promptly provide the Equipment to Owner (or its agents or subcontractors) for such purpose.

(b) Any costs which are the responsibility of Hirer as per this Agreement which are incurred by Owner by exercising their rights under Clause 7.3(a) will be charged to Hirer at retail rates to reinstate the Equipment to a satisfactory level inline with how the Equipment would be if Hirer adhered to the agreement.

7.4 Indemnity
Hirer shall indemnify Owner for any loss or damage caused either directly or indirectly to the Equipment in connection with or arising from:

(a) Hirer’s failure to comply with clauses 7.1 or 7.5;

(b) the misuse of the Equipment or use of the Equipment contrary to the obligations of Hirer under this Agreement;

(d) damage or wear to the Equipment in accordance with clause 7.5.

7.5 Notice of Damage
(a) Except in the case where this Agreement is a Wet Hire and any damage is caused to the Equipment by reason of the negligence of the Operator of the Equipment, Hirer must provide written notice as soon as practicable to Owner in the event that there is any significant or serious damage or disrepair to the Equipment (including any corrosion or damage to the Equipment caused by salt water) or the operation of the Equipment. Where the Equipment is damaged, Owner reserves the right to:

(i) provide notice to Hirer requiring Hirer to immediately repair or service the Equipment;

(ii) take possession of the Equipment, at the

Hirer’s cost; or

(iii) have the Equipment repaired by Owner at the

Hirer’s cost.

(b) For the avoidance of doubt, Hirer shall be liable for all costs and expenses directly or indirectly relating to the repair of the Equipment where it is damaged for any reason while on hire to Hirer.

7.6 General Obligations
Hirer must:

(a) use the Equipment in a skilful and proper manner and only for the purposes and within the capacity for which the Equipment was designed;

(b) accept full responsibility and liability for the safe keeping of the Equipment and indemnify Owner for all loss, theft or damage of the Equipment however caused and, without limiting the generality of the foregoing, whether or not such loss, theft or damage is attributable to any abandonment of any Equipment, negligence, failure or omission of Hirer;

(c) ensure that any person using the Equipment operates the Equipment safely and in accordance with the Operating Instructions and all relevant statutes, regulations, by laws and requirements of any authority that apply to the Equipment;

(d) ensure that the Equipment is stored safely and securely and is protected from theft, seizure or damage;

(e) comply in all respects with all applicable laws, regulations, requirements and rules reasonably

necessary for the safe and lawful operation of the Equipment, including the obtaining of any required permits or authorisations required for the use of the Equipment;

(f) not in any way part with possession of the whole or part of the Equipment, nor sell, assign, mortgage, pledge, sub lease, lend, grant a ‘security interest’ in or otherwise deal with the whole or part of the Equipment without the express written consent of Owner;

(g) inform Owner immediately if any items or part of the Equipment are stolen, lost, destroyed or damaged; and

(h) not remove or cover up any plates or other marks that Owner may affix or cause to be affixed to the Equipment to indicate that the Equipment is the property of Owner.

7.7 Records
Hirer must keep complete records with respect to the obligations of Hirer specified in this clause 7 and provide such records to Owner on demand.

8. BREAKDOWN
8.1 Where the Equipment becomes unusable or unsafe to use, Hirer must:

(a) immediately stop using the Equipment;

(b) take all necessary steps to prevent injury to Hirer or any other persons or property as a result of the condition of the Equipment;

(d) not repair or attempt to repair the Equipment without Owner’s prior written approval.

8.2 Where this Agreement is a Wet Hire and the Equipment becomes unusable or unsafe to operate, Owner reserves the right to immediately stop using the Equipment and take reasonable steps to re-engage the Equipment as soon as practical.

9. OWNER’S OBLIGATIONS
9.1 Owner shall:

(a) ensure that the Equipment, if required, remains licensed and registered during the Hire Period; and

(b) maintain any insurances that Owner elects to hold for its own benefit, noting that such insurances do not limit Hirer’s obligations under clause 10 unless Hirer has elected and paid for the Damage Waiver in accordance with clause 10.4.

10. INSURANCE

10.1 Hirer’s Insurance (Default Position)
(a) Hirer must, at its sole cost, take out and maintain for the duration of the Hire Period:

(i) full comprehensive motor vehicle insurance (or plant and equipment insurance, as applicable) covering loss, theft, damage or destruction of the Equipment for an amount not less than the new replacement value of the Equipment;

(ii) any other insurance reasonably required by Owner; and

(iii) ensure that Owner is listed as an interested party (as owner of the Equipment) on all such policies.

(b) Hirer must provide all certificates of currency for all required insurances immediately upon request.

10.2 Owner’s Insurance (For Owner’s Benefit Only)
Any insurance maintained by Owner is for Owner’s own benefit and does not relieve the Hirer of its obligations under clause 10.1 unless the Hirer has elected and paid for the Damage Waiver under clause 10.4.
10.3 Hirer’s Liability for Damage (Default Position)
Except where Hirer has elected and paid for the Damage Waiver in accordance with clause 10.4, Hirer is liable for:
(a) all loss of, theft of, or damage to the Equipment, however caused; and
(b) all costs incurred by Owner in repairing or replacing the Equipment, including associated transport, recovery and assessment costs.
10.4 Optional Damage Waiver (10% of Hire Fee)
(a) Hirer may elect to purchase a Damage Waiver by paying an additional amount equal to 10% of the Hire Fee.
(b) If Hirer validly elects and pays for the Damage Waiver before the Commencement Date:
(i) Owner will bear the cost of repairing accidental damage to the Equipment occurring during the Hire Period, subject to Hirer paying any insurance excess or deductible applicable to that damage; and
(ii) Hirer will not be liable for such accidental damage, except to the extent that the damage arises from misuse, abuse or overloading of the Equipment, operation by an unlicensed or unqualified operator, breach of this Agreement, failure to maintain fluid levels or perform basic daily checks or loss or damage caused by theft where Hirer has failed to secure the Equipment.
10.5 Reimbursement of Owner’s Costs
If Hirer does not elect and pay for the Damage Waiver, Hirer must reimburse Owner on demand for all costs, losses and expenses incurred by Owner in connection with any loss of, theft of, or damage to the Equipment.

11. TERMINATION
11.1 Termination by Owner
Notwithstanding any other condition of this Agreement, and without prejudice to any other remedies Owner may have against Hirer, Owner may terminate this Agreement at any time without notice in the following cases:

(a) where Hirer is subject to any winding up petition or order, appointment or receiver, official management, assignment, arrangement, or compromise for the benefit of creditors, an act of bankruptcy or any action taken or threatened to be taken to place Hirer in bankruptcy, a judgment which is unsatisfied or partly unsatisfied, a sequestration order, a writ or execution or where Hirer ceases to carry on business;

(b) where Hirer breaches this Agreement and Hirer has failed to remedy that breach within 7 days of written notice being provided to Hirer, such notice specifying the breach and requiring rectification of the breach;

(c) where Hirer fails to pay any amount payable to Owner under this Agreement within 7 days of the date that those monies become due and payable;

(d) Hirer is convicted of a serious offence;

(e) any judgment or process is entered against Hirer and is not satisfied forthwith;

(f) the Equipment is abandoned, condemned, seized or appropriated by any lawful authority or person and not released within 7 days; or

(g) by way of 30 days’ written notice of termination of this

Agreement to Hirer.

11.2 Costs & Expenses
Hirer must, on demand, reimburse Owner for all costs, charges, expenses, fees, disbursements (including all legal costs on an indemnity basis) paid or incurred by Owner as a result of or incidental to:

(a) any breach, default or repudiation of this Agreement by Hirer; and

(b) the exercise or attempted exercise of any right, power, privilege, authority or remedy of Owner under or by virtue of this Agreement, including all amounts incurred in preparation and service of a notice under this Agreement and in repossessing the Equipment from Hirer under the terms of this Agreement and in enforcing this Agreement generally.

11.3 Return of Equipment
(a) Upon the expiration or termination of this Agreement pursuant to this Agreement, Hirer must, subject to

any alternative arrangements agreed in writing between the parties, immediately deliver the Equipment to Owner at Hirer’s expense and in the same condition as the Equipment was originally delivered to Hirer, including being:

(i) fully fuelled; and

(ii) clean and free from debris, dirt, mud, concrete, or other build‑up.

(b) If the Equipment is returned without being fully fuelled or cleaned in accordance with clause 11.3(a), Hirer must pay Owner’s reasonable costs of refuelling, cleaning and restoring the Equipment to the required condition. These costs may be charged as Additional Charges.

(c) If the Equipment is not returned to Owner within a period of time as notified to Hirer by Owner, Owner shall be entitled to take possession of the Equipment without notice for which purpose Hirer hereby authorises Owner, its servants and agents to enter upon any land or premises of Hirer or under its control upon which the Equipment is situated at the time of termination to search such premises and to remove the Equipment there from.

12. INDEMNITIES
12.1 Indemnity
Without limiting any other indemnity given by Hirer under this Agreement, Hirer shall indemnify Owner and Owner’s directors, agents, servants, sub-agents, subcontractors and employees against all liability, loss, claims, actions, suits, demands, costs, expenses, including all legal costs and expenses, in any way arising out of or in connection with any or all of the following:

(a) the use of the Equipment by Hirer whether caused by the negligence of Hirer, its servants or agents or by negligence of any other person whomsoever or arising out of the condition of the Equipment or the use to which it is put;

(b) the repair and maintenance, storage or possession of the Equipment;

(d) the delivery, selection, purchase, acceptance or rejection, ownership, repair or operation of the Equipment and by whomsoever used or operated (other than Owner); or

(e) the seizure, distress, execution or other legal process, confiscation or forfeiture of the Equipment.

12.2 Survival of indemnities
The indemnities specified in clause 12.1 and any other indemnities provided in this Agreement will continue in full force and effect notwithstanding the termination or expiration of this Agreement.

13. LIABILITIES, WARRANTIES, REPRESENTIONS AND CONDITIONS
13.1 Exclusion of Liabilities, Warranties and Conditions
To the extent that the Commonwealth, State and Territorial laws permit:

(a) all express and implied conditions, terms, warranties and representations which are not expressly contained in this Agreement are hereby excluded;

(b) 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; and

(c) Owner shall not be responsible or liable to Hirer, whether on grounds of breach of contract, contractual duty or negligence, for any loss or damage that Hirer may directly or indirectly sustain or suffer arising from or in connection with:

(i) any defects in or miscalculation, breakdown or failure of performance of the Equipment, and Hirer hereby exonerates and releases Owner from all claims and demands in respect thereof; or

(ii) the termination of this Agreement by Owner.

13.2 Hirer’s Warranties and Representations
Hirer warrants and represents that:

(a) Hirer has full power and authority to execute this Agreement and to perform and observe all of its terms and provisions;

(b) this Agreement has been duly executed by Hirer and is a legal and binding agreement of Hirer enforceable against it in accordance with the terms of this Agreement;

(c) Hirer has disclosed to Owner all facts, circumstances and other information of which Hirer knows or should reasonably know relating to the hire of the Equipment and which are material to, or may have an effect on, Owner;

(d) Hirer holds all licences, permits and authorities required to operate the Equipment; and

(e) the hire of the Equipment will not breach any law or requirement or direction of any authority.

14. PPSA
14.1 For the purposes of this clause 14, “PPSA” means the Personal Property Securities Act 2009 and the Personal Property Securities Regulations 2010, as amended from time to time.

14.2 If the Equipment may be subject to the PPSA, then Owner may effect and maintain registration of a ‘security interest’ (as that term is defined in the PPSA) in the Equipment and the proceeds arising in respect of any dealing in the Equipment. Hirer must do anything (such as obtaining consents and signing documents) which Owner requires for the purpose of:

(a) creating and registering Owner’s security interest including (but not limited to) providing details of any item of collateral sufficient to complete registration of the security interest in accordance with the PPSA;

(b) ensuring that Owner’s security interest is and remains enforceable, perfected and otherwise effective under the PPSA;

(c) enabling Owner to gain first priority (or any other priority agreed to by Owner in writing) for its security interest; or

(d) enabling Owner to exercise its rights in connection with the security interest or the PPSA.

14.3 Owner’s rights under this Agreement are in addition to and not in substitution of Owner’s rights under any other law (including the PPSA) and Owner may choose whether to exercise rights under this Agreement and/or under such other law, in its discretion. For the avoidance of doubt, any security interest that Owner may have in the Equipment will attach to ‘proceeds’ in accordance with the PPSA.

14.4 To the extent that Chapter 4 of the PPSA applies to any security interest under this Agreement, the following provisions of the PPSA are “contracted out” of in accordance with section 115 of the PPSA and shall not apply: sections 95, 96, 121(4),

125, 130, 129(2), 129(3), 132(3) (d), 132(4), 135, 142 and 142.

14.5 In addition to any rights conferred upon Owner under the PPSA, Hirer agrees and acknowledges that in addition to those rights Owner shall, if Hirer is in default of this Agreement, have the right to seize, purchase, take possession or apparent possession of, retain, deal with or dispose of any goods (including the Equipment) not only under those provisions under the PPSA but also as additional and independent rights under this Agreement. Hirer agrees that Owner may exercise any of its rights under this clause 14.5 in any way it deems fit including (in respect of dealing and disposal) by private or public sale, lease or licence.

14.6 Pursuant to section 157(3) of the PPSA, Hirer waives its rights to receive a verification statement in relation to registration events in respect of commercial property pursuant to section 157(1) of the PPSA.

14.7 Owner and Hirer agree not to disclose information of the kind that can be requested under section 257(1) of the PPSA.

14.8 Hirer must not dispose or purport to dispose of, or create or purport to create or permit to be created any ‘security interest’ in the Equipment without the express written consent of Owner.

(a) Hirer must not lease, hire, sub hire, bail, lend or part with possession of the Equipment (Sub-hire) without the express written consent of Owner, which may be provided or withheld in its absolute discretion. In the instance that Owner consents to a Sub-hire in writing, the Sub-hire must be in writing and in a form acceptable to Owner and must be expressed to be subject to the rights of Owner under this Agreement. Hirer must not vary the Sub-hire arrangement or terms without Owner’s consent in writing.

(b) Hirer must ensure that Hirer is provided at all times (and where Hirer requests) 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.

14.9 Hirer must take all steps, including registration under the PPSA, 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 PPSA;

(b) enable Hirer to gain (subject always to the rights of Owner) first priority (or any other priority agreed by Owner in writing) for the security interest; and/or

14.10 To assure Hirer’s performance of its obligations under this clause 14 and this Agreement, Hirer hereby gives to Owner an irrevocable power of attorney to do anything Owner considers Hirer should do under this Agreement. Owner may recover from Hirer the cost of doing anything under this clause 14, including registration fees.

15. GUARANTEE
15.1 In consideration of the hire of the Equipment to Hirer, each Guarantor irrevocably and unconditionally:

(a) guarantees, as a principal debtor and jointly and severally with each other Guarantor, that Hirer will:

(i) pay the Hire Fee and Additional Charges and all other amounts to be paid under this Agreement in accordance with the terms of this Agreement; and

(ii) comply with all the other terms of this Agreement on its part to be complied with; and

(b) as separate undertakings:

(i) agrees to indemnify and keep indemnified Owner, as a separate and continuing obligation, against all liability, loss, claims, actions, suits, demands, costs and expenses (including all legal costs on a full indemnity basis) suffered or incurred by Owner arising from or in connection with any breach of this Agreement; and

(ii) agrees that Owner may recover from any one or more Guarantors the whole or any part of the amounts guaranteed or indemnified, without Owner being required to first demand payment from, or take action against, Hirer or any other Guarantor.

15.2 The guarantee and indemnity specified in clause 15.1 continues in force until Hirer complies with all of its obligations under this Agreement.

15.3 A Guarantor agrees to pay to Owner on demand Owner’s costs and expenses, including legal costs, relating to any action taken under this guarantee and indemnity.

16. GOODS AND SERVICES TAX
16.1 In this clause the expressions “adjustment note”, “consideration”, “GST”, “input tax credit”, “supply”, “tax invoice”, “recipient” and “taxable supply” have the meaning given to those expressions in the A New Tax System (Goods and Services Tax) Act 1999.

16.2 Unless otherwise stated, all amounts payable or any consideration to be provided under this Agreement are exclusive of GST.

16.3 Notwithstanding any other provision in this Agreement, if GST is imposed on any supply made under the Agreement, the supplier may in addition to the consideration, recover an amount equal to the consideration multiplied by the current GST rate. Payment of the additional amount will be made at the same time as payment for the taxable supply subject to the supplier delivering a valid tax invoice to the recipient at or before the time of payment.

(a) If a variation in the rate of any GST is associated with the abolition or reduction of any tax, duty, excise or statutory charge which directly or indirectly affects the costs of a supplier in respect of any supply made under the Agreement, the consideration payable for the supply will be varied so that the supplier’s net financial position in respect of the supply remains the same.

(b) Any contract entered into by a party to the Agreement with a third party which involves supplies being made, the cost of which will affect the cost of any supplies made under or in connection with this Agreement, must include a clause in equivalent terms to this clause of the Agreement.

16.4 If this Agreement requires a party to reimburse or indemnify the other party for any expense, loss or outgoings, including the Reimbursable Expenses (“expense”), the amount required to be paid by the first party will be the sum of:

(a) the amount of the expense net of input tax credits (if any) to which the other party is entitled in respect of the expense (“net amount”); and

(b) if the other party’s recovery from the first party is a taxable supply, any GST payable in respect of that supply.

16.5 If a GST inclusive price is charged or varied, the recipient can withhold payment of the GST until the supplier provides a valid tax invoice or adjustment note as appropriate.

17. SPECIAL CONDITIONS
Any special conditions specified in Owner’s reservation form (if any) or otherwise as agreed between the parties in writing from time to time form part of this Agreement. In the event of any inconsistency between the special conditions and the provisions in this Agreement, the special conditions shall prevail.

18. SEVERABILITY
In the event of any part of this Agreement becoming void or unenforceable, whether due to the provision of any statute or otherwise, then that part shall be severed from this Agreement, to the intent that all parts that shall not be or become void or unenforceable shall remain in full force and effect and be unaffected by any such severance.

19. CONTRACT FORMATION
Owner is not required to sign this Agreement for it to be binding. Owner offers to hire the Equipment on the terms set out in this Agreement, and Hirer’s signature (or other form of acceptance) constitutes acceptance of that offer and forms a binding contract.

20. ENTIRE AGREEMENT
This Agreement forms the entire agreement between the parties and no regard shall be had to any other dealings. Any terms and conditions that may have been attached or embodied in any other document, tender, offer, quote, purchase order or included in correspondence are deemed to have been withdrawn in favour of this Agreement.

21. GOVERNING LAW AND JURISDICTION
This Agreement is governed by the laws of Western Australia and each party irrevocably submits to the non-exclusive jurisdiction of the Courts of Western Australia.

22. VARIATION
Owner may at any time vary this Agreement by providing Hirer with not less than 14 days’ written notice of its intention to do so. Any other variation of this Agreement must be agreed to in writing by Owner and Hirer.