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Carnegie - 03 9571 9488

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Terms and Conditions

1. DEFINITIONS AND INTERPRETATION

1.1 ACL means the Australian Consumer Law which is contained in Schedule 2 of the Competition and Consumer Act 2010 (Cth).

1.2 Additional Charges means any charges or amounts required to be paid by the Customer to the Owner under Clause 4.

1.3 Agreement means any agreement for the supply of equipment upon hire between the Owner and the Customer incorporating these terms and conditions.

1.4 Customer means the person, company, firm or corporation hiring the equipment from the Owner as specified above, its servants or agents and any signatory to the Hiring Schedule.

1.5 Equipment means all equipment, accessories or parts supplied to the Customer by the Owner.

1.6 Hire Fees means the charges agreed between the Owner and the Customer for the hire of the Equipment set out in the Hiring Schedule/Tax Invoice attached to these terms and conditions.

1.7 Hire Period means the period commencing on the commencement date and concluding on the date referred to in the combined Hiring Schedule/Tax Invoice annexed to these terms and conditions or as extended or varied under sub-clauses 2.2, 2.4 or 2.8.

1.8 Owner means Bifalco Pty Ltd (ABN 17 369 794 774) trading as Smart Hire Company of 1076 Dandenong Road, Carnegie Vic 3163 AND 21-25 Coora Road, South Oakleigh Vic 3167.

1.9 PPSA means the Personal Property Securities Act 2009 (Cth)

1.10 Schedule means the combined Hiring Schedule/Tax Invoice attached to these terms and conditions.

1.11 Words importing the singular number will be deemed to include the plural and vice versa. Words importing the male gender will be deemed to include the female and neuter genders and vice versa.

1.12 A reference to a person includes a corporation, partnership and unincorporated body.

 

2. HIRE OF EQUIPMENT

2.1 The hiring of the Equipment will commence from the commencement date specified in the Schedule and continue for the term specified in the Schedule save as provided in sub-clause 2.4 and the Customer is entitled to use the equipment for the Hire Period. 

2.2 Any extension of the Hire Period must be agreed to by the Owner in writing.

2.3 The Customer agrees to return the Equipment to the address of the Owner on or before the end of the Hire Period as outlined in the Schedule or as extended as provided in sub-clause 2.2. Failure to do so will constitute an act of theft or conversion and will at the discretion of the Owner be immediately reported to the police.

2.4 In order to suspend hiring and the consequential Hire Fees and any Additional Charges the Customer must notify the Owner that the Customer has ceased using the Equipment, wishes to return it and obtain a written “off-hire” confirmation from the Owner. No suspension by reason of “off-hire” will be effective without the Owner’s confirmation.

2.5 The Customer will be liable for the full replacement value of the Equipment if it is stolen during the Hire Period.

2.6 The Customer must not sell or offer for sale, assign, mortgage, pledge, underlet, lend or otherwise deal with the Equipment or with any interest in it.

2.7 Failure, refusal or neglect to return the Equipment after expiry of the Hire Period, or the presenting of false, fictitious or misleading identification to the Owner will be construed as evidence of an intention to defraud, deceive or steal and to fraudulently convert the ownership of the Equipment and will be actioned at the Owner’s discretion accordingly.

2.8 The Customer will be liable for the full Hire Fees referred to in the Schedule until the replacement value of the Equipment is paid in full by the Customer to the Owner and the Customer is liable for all legal costs in recovery of monies owed.

 

3. PAYMENT FOR RENTAL

3.1 The Hire Fees will be as indicated in the Schedule and in the Tax Invoice(s) provided by the Owner to the Customer.

3.2 The Customer agrees to pay the Owner the Hire Fees and the Additional Charges in respect of the Equipment as specified in the Schedule for the Hire Period together with any applicable GST, interest, debt recovery costs, commissions, stamp duties, tolls, fines, penalties, levies or freight and other charges in connection with this Agreement and the hire.

3.3 The Hire Fees must be paid to the Owner at the time of hire and in the event the term of this Agreement is extended in accordance with clause 2.2 Hire Fees must be paid at the commencement of the extended term. Any Equipment not returned on time and in accordance with this agreement will be subject to continuing Hire Fees at the rate or as otherwise set out in the Schedule.

3.4 Customers having an approved account with the Owner are required to make payment of the Hire Fees in accordance with the terms of trade of their respective accounts. Account Customers will be deemed to be in default under this Agreement if those terms of trade are exceeded.

3.5 A cancellation fee may be charged by the Owner and will be payable by the Customer where Equipment has been specifically reserved by booking and the Customer cancels the booking without reasonable notice or fails to take delivery of the Equipment as arranged.

 

4. ADDITIONAL CHARGES

The Customer must in addition to the Hire Fees and, if required by the Owner, pay the Additional Charges as follows:

4.1 Any cost incurred by the Owner in cleaning the Equipment or restoring it to hiring condition after the Hire Period.

4.2 The cost of rectifying any damage to the Equipment caused by the Customer’s use.

4.3 Any fines or penalties paid or payable by the Owner caused directly or indirectly from the Customer’s use of the Equipment during the Hire Period.

4.4 Repossession costs pursuant to Clause 12.

4.5 The cost of consumable Items including, without limitation, fuel, blades, sanding or grinding discs supplied by the Owner and used by the Customer.

4.6 Any Equipment operating costs incurred by the Owner during the Hire Period..

4.7 The full cost of replacement of any Equipment lost or stolen during the Hire Period.

4.8 Any set-up of the Equipment or any folding, stacking, bagging, handling or any service calls carried out by the Owner at the Customers request during the Hire Period.

4.9 All charges associated with the Owner accepting payment of the Hire Fees by credit card.

 

5. SECURITY DEPOSIT

The Customer may at the time of commencement of the Hire Period and as a condition of hire be required to pay the security deposit referred to in the Schedule. The Owner may (but will not be bound) to apply all or any part of the security deposit to compensate the Owner in respect of any loss or damage it may suffer by reason of any default by the customer in performing the Customer’s obligations under this Agreement. Upon the expiration of the Hire Period and upon return of the Equipment to the Owner so much of the security deposit (if any) held by the Owner as has not been applied towards payment of any loss or damage as set out in these terms and conditions or is not required to make good any such loss or damage will be refunded to the Customer without interest.

 

6. CREDIT CARD AUTHORISATION

Where payment of the Hire Fees is made by way of credit card at the commencement of the Hire Period the Customer authorises and directs the Owner to charge any and all Hire Fees arising from any extension of the Hire Period and any Additional Charges referred to in Clause 4 to the credit card provided in connection with the hire.

 

7. CONDITIONS AND WARRANTIES, USE, OPERATION AND MAINTENANCE

In respect of all Equipment, including without limitation any accessories or consumables in connection with the hire, supplied by the Owner to the Customer the Customer will:

7.1 examine the Equipment prior to taking possession of it and confirm by the signature on the Schedule that it is (save for any matters noted in writing in the Schedule) suitable for the purpose required, clean and in good working order and condition;

7.2 agree to accept all dangers and risks associated with use of the Equipment acknowledging at all times that the use of the Equipment carries with it dangers and risks of injury;

7.3 ensure the equipment is not used by anyone other than the Customer without the express permission of the Owner which may be given or withheld entirely at the discretion of the Owner;

7.4 ensure that all persons operating or erecting the equipment are instructed in its safe and proper use and where required hold a valid Certificate of Competency or are fully licensed to use it;

7.5 only operate or use the Equipment in accordance with the instructions provided by the Owner which the Customer acknowledges receiving;

7.6 in addition to compliance with the operating instructions, maintain, store and transport the equipment strictly in  accordance with any other instruction provided by the Owner;

7.7 not permit the Equipment to be used by persons under the age of 18 years;

7.8 not take any Equipment out of the State of Victoria.

7.9 only use the Equipment in a skilful and workmanlike manner, for its intended purpose, in accordance with any manufacturer’s instructions and recommendations (whether supplied by the Owner or posted on the Equipment) in regard to its operation, maintenance and storage and only for the purpose and within the capacity for which the Equipment was designed, acknowledging that the Owner gives no warranty as to the said purpose or capacity;

7.10 comply with all occupational health and safety laws and regulations and all other statutory requirements relating to the use of the Equipment and associated operations;

7.11 use and ensure the Equipment is used and maintained only in accordance with all applicable laws, statutes, by laws and regulations and also the lawful direction of inspectors or officers having authority to make directions regarding the location, use or condition of the Equipment;

7.12 return the Equipment to the Owner clean of all foreign matter and in substantial repair. If in the Owner’s opinion the Equipment requires cleaning or repair upon return the costs of same will be charged to the Customer as provided in Clause 4;

7.13 immediately notify the Owner of any breakdown of the Equipment and not repair or attempt to repair the Equipment without the prior consent in writing of the Owner; 

7.14 subject to sub-clause 7.13 at its own expense service, clean, lubricate and maintain the Equipment in good and substantial repair and condition (reasonable wear and tear excepted unless caused by negligence or misuse on the part of or attributable to the Customer) except for pre-arranged servicing which will be carried out by the Owner during normal working hours;

7.15 not alter, make additions to, deface or erase any identifying mark, plate or number on the Equipment or in any other manner interfere with the Equipment;

7.16 accept full responsibility for the safekeeping of the Equipment and, except as specified in these terms and conditions, indemnify the Owner in respect of all loss, theft or damage to the Equipment however caused;

7.17 not be entitled to a lien over the Equipment nor, without the Owner’s prior written consent, part with possession of the Equipment or assign or transfer the benefit of the hire pursuant to these terms and conditions nor remove the Equipment nor allow same to be removed, from the Customer’s premises (as at the commencement of the Hire Period) or from the State of Victoria.

 

8. DELIVERY/ PICK UP / ACCESS

The Customer grants the Owner, its agents or sub-contractors at all reasonable times the right to enter any premises or site in which or at which the Equipment is located for the purpose of:

8.1 delivery, installation, pick up or removal of the Equipment; or

8.2 examination of the state of repair and condition of the Equipment.

 

9. WARRANTIES, INDEMNITY AND LIABILITY

9.1 The only conditions and warranties which are binding on the Owner in respect of the Equipment supplied by the Owner to the Customer are those imposed and required to be binding by statute (including without limitation the ACL) and otherwise all other conditions and warranties in respect of the hire of the Equipment by the Owner to the Customer are hereby expressly excluded and negatived.

9.2 Subject to sub-clause 9.1 the liability, if any, of the Owner arising from the breach of such conditions or warranties will at the Owner’s election be limited to and completely discharged by either of the following as determined by the Owner:

(a) the supplying of the hire again, or

(b) the payment of the cost of having the hire supplied again.

9.3 Subject to sub-clause 9.1, if any of the Equipment or components of the Equipment under hire is expressly warranted by a manufacturer or supplier other than the Owner, that warranty is the warranty of the manufacturer or supplier and the Owner will have no liability in respect of any breach thereof. The Owner may, in its absolute discretion, present warranty claims to the manufacturer or supplier on behalf of the Customer.

9.4 Except to the extent provided in sub-clause 9.1, the Owner will have no liability (including liability in negligence) to any person for any loss or damage consequential or otherwise, however suffered or incurred by any such person in relation to the Equipment supplied under hire by the Owner to the Customer and without limiting the generality of this provision, any loss or damage consequential or otherwise however suffered or incurred by any such person caused by or resulting directly or indirectly from any failure, defect or deficiency of whatever nature or kind in respect of the Equipment.

9.5 The Customer assumes all risk inherent in the use and operation of the Equipment by the Customer and/or the Customer’s servants, agents or sub-contractors and the Owner will not be liable in any circumstances for any defects or damages caused in whole or in part by misuse, abuse, neglect, improper application, repair or alteration (other than by the Owner) or accident, and in such cases, all warranties are null and void.

9.6 Should the Customer consider that it has any claim against the Owner which, having regard to these terms and conditions, the Customer is entitled to make, it is a condition of the Owner considering such claim that the Customer:

(a) immediately upon becoming aware of the circumstances giving rise to such a claim, notify the Owner in writing of the nature of the claim;

(b) provide the Owner its servants or agents with reasonable access, during normal working hours or as otherwise agreed to by the parties, to the Customer’s premises or any other place where the Equipment is located, for the purposes of conducting such tests and examinations as the Owner may in its absolute discretion consider necessary to determine whether or not the claim is justified.

9.7 The Customer indemnifies the Owner and must keep the Owner indemnified (to the extent permissible by law) in respect of any and all loss or damage, consequential or otherwise, however suffered or incurred by any person caused by or resulting directly or indirectly from any failure, defect or deficiency of whatever nature or kind of or in the Equipment.

9.8 In furtherance of the indemnity referred to in sub-clause 9.7 and without derogating from the obligation under that sub-clause the Customer must effect and maintain liability, property and causality insurance in such amounts as are necessary to fully protect the Owner and its Equipment against claims and damage of whatever nature or type.

9.9 Without limiting the operation of sub-clause 9.4 the Owner will not be liable to the Customer in respect of:

(a) any expenditure, damages and/or loss to the Customer due to break-down or failure of the Equipment resulting from wear and tear, negligence or default on the part of the Owner or any other reason whatsoever;

(b) delay in delivery of the Equipment caused by or in any way incidental to any strike, lock out, trade dispute, fire , tempest, break-down, riot, theft, crime disturbance, war, force majeure , legislation, the inability of the Owner to procure the necessary parts or labour due to any of the foregoing causes, or any other occurrences preventing or retarding the performance of the Equipment under hire and no responsibility or liability will attach to the Owner for any delay, default, loss or damage due to any of the above causes or any other cause beyond the control of the Owner.

(c) Any personal injury or property damage caused by the ordinary wear and tear of the Equipment, unavoidable, accident or improper or careless use of the Equipment by the Customer.

(d) Any damage resulting from the hire and subsequent use of the Equipment by the Customer.

 

10. CUSTOMER’S FURTHER WARRANTIES

The Customer warrants that:

10.1 the Equipment will be used in accordance with the conditions (if any) outlined in the Schedule;

10.2 the particulars in the Schedule are correct in every respect and are not  misleading in any way including, without limitation, by omission;

10.3 the Customer and/or (where relevant) the Customer’s operator holds a valid current driver’s licence, operating licence or permit valid for the type of equipment hired;

10.4 the Equipment will not be used for any illegal purpose;

10.5 the Customer’s vehicle is suitable for towing the Equipment (if required);

10.6 the Customer will not tamper with or modify the Equipment in any way, or permit another to do so.

 

11 RETENTION OF TITLE AND PPSA

11.1 The Customer acknowledges that the Owner retains title to the Equipment and that the Customer has the right to use the Equipment as bailee only.

11.2 The Owner may register any actual or impending security interest in relation to any security interest contemplated or constituted by this Agreement in the Equipment and the proceeds arising in respect of any dealing in the Equipment.

11.3 The Customer undertakes to –

(a) do anything that is required by the Owner to acquire and maintain one or more perfected security interests under the PPSA in the Equipment and its proceeds; to register a financing statement or financing change statement; and to  ensure that the Owner’s security position and rights are not adversely affected by the PPSA;

(b) not register a financing change statement in respect of a security interest contemplated or constituted by this Agreement without the prior written consent of the Owner; and

(c) not create or purport to create any security interest in the Equipment, nor register or permit to be registered, a financing statement or a financing change statement in relation to the Equipment in favour of a third party without the prior written consent of the Owner.

11.4 The Customer agrees –

(a) to waive its right to receive a copy of the verification statement relating to a security interest under this Agreement;

(b) that to the maximum extent permitted by the PPSA, the following provisions of the PPSA will not apply: sections 95, 96, 118, 121(4), 125, 130, 132(3)(d), 132(4), 135, 142 and 143;

(c) that the following provisions of the PPSA will not apply: sections 127, 129(2), 129(3), 130(1), 132, 134(2), 135, 136(3), 136(4), 136(5), and 137.

11.5 The Customer agrees that it will not disclose information of the kind mentioned in section 275)(1) of the PPSA pursuant to section 275(6) of the PPSA.

11.6 For the purposes of section 20(2) of the PPSA, the collateral is the Equipment including such equipment described in the Schedule provided by the Owner to the Customer from time to time.  This Agreement is a security agreement for the purposes of the PPSA.

11.7 The Customer agrees to notify the Owner in writing of any change to its details as set out in this Agreement or any relevant credit application with the Owner within 5 days from the date of such change.

11.8 The Customer warrants that the Equipment will not be used predominantly for personal, domestic or household use.

 

12. CHARGE

12.1 The Customer, in consideration of the Owner entering into the Agreement, HEREBY CHARGES in favour of the Owner all of the Customer’s interest in any land or other asset capable of being charged, wherever situate and whether present or to be acquired in the future, to secure all money payable to the Owner under the Agreement, whenever due and owing, or contingently owing but remaining unpaid by the Customer.

12.2 The Customer acknowledges and agrees that the Owner shall be entitled to lodge a caveat where the Owner deems it appropriate pursuant to this clause.

 

13. DEFAULT, REPOSSESSION AND REMEDIES

13.1 Time is of the essence of this Agreement. If the Customer defaults in the payment of any sum due under these terms and conditions or in the performance of any obligation contained in them or the Customer becomes insolvent or bankrupt or admits in writing an inability to pay its debts as they fall due or makes an assignment for the benefit of creditors, or if bankruptcy, reorganisation arrangements insolvency or liquidation proceedings or other proceedings for relief under any bankruptcy law or any other similar law are instituted by or against the Customer or if assets are levied upon or are otherwise seized or taken from the Customer by or on behalf of any other person, each of which events is hereby called an “event of default", then the Owner may at any time by written notice to the Customer immediately terminate this Agreement and/or declare the charges payable in respect of any unexpired part of the Hire Period immediately due and payable.

13.2 Having regard for the operation of Clause 11 in an event of default the Owner, after having given the Customer twenty-four (24) hours' notice, may retake and hold possession of the Equipment before, pending or after any action to recover any sums due under these terms and conditions free from all claims whatsoever by or through the Customer and the Owner may with or without legal process enter upon any premises where the Equipment or any part thereof may be found and recover the Equipment using such force as may be reasonably necessary so to do and repossess the Equipment without prejudice to any other remedy which it might have on account of an event of default.

13.3 The Owner may as a matter of right retain all payments made in respect of the hire and recover in full charges declared due and payable as set out in these terms and conditions as well as other damages (if any) that the Owner may have sustained as a result of an event of default, and neither the recovery of a judgment in such action or the collection of any portion of such charges or damages will be deemed inconsistent with or to waive or prevent any other right or remedy of the Owner under this Agreement or referred to or existing under applicable law it being understood and agreed that each and all of the rights and remedies of the Owner under this Agreement are cumulative to and not in lieu of each and every other such right and remedy.  

 

14. NON-MERGER

The covenants, agreements and obligations contained in this Agreement will not merge or terminate upon the termination of this Agreement and to the extent that they have not been fulfilled or satisfied or are continuing obligations they will remain in force and effect.

 

15. SEVERANCE

If any provision of this agreement is wholly or partly invalid, unenforceable, illegal, void or voidable, this agreement must be construed as if that provision or part of a provision had been severed from this agreement and the parties remain bound by all of the provisions and part provisions remaining after severance.

 

16. GOVERNING LAW

This Agreement is governed by the laws of the State of Victoria and each party submits to the non-exclusive jurisdiction of the Courts of the State of Victoria.

 

17. PRIVACY

17.1 The Owner treats all personal information as confidential and agrees to handle same in accordance with the National Privacy Principles under the Privacy Act 1988 (Cth) and the Privacy (Private Sector) Amendment Act 2000 (Cth) (the “Act”).

17.2 The Owner may need to collect personal information about the Customer. In order to assess the creditworthiness of the Customer, the Owner may exchange personal information about the Customer with a credit reporting agency or other businesses that report on creditworthiness. The Owner may also use that information in order to advise the Customer about other Goods and Services the Owner offers.

17.3 The Owner will disclose information collected about the Customer where required to do so under applicable laws, such as taxation and government benefit laws and under cash transactions and anti-money laundering reporting laws.

17.4 The Owner may engage third party service providers to assist in the provision of services to the Customer, and in those circumstances the Customer’s personal information may be disclosed in confidence.

17.5 The Customer is entitled to access the personal information that the Owner holds about the Customer as outlined in the Act.

17.6 The Customer acknowledges that the Owner may give certain personal information about the Customer to a credit reporting agency or other businesses that report on creditworthiness. The Customer acknowledges that the Owner can only give limited kinds of information as set out in the Act. The Customer acknowledges this information may be given before, during or after the provision of the hire to the Customer.

 

18. VARIATION OF TERMS AND CONDITIONS

The terms and conditions herein can and will only be varied by the Owner’s consent in writing and shall in no way release the Customer from any other obligations or requirements set out herein. Variation shall include assignment of this contract. 

 

19. WAIVER

The failure of the Owner at any time to require strict performance by the Customer of any matter will not be deemed a waiver of the Owner’s rights unless it is agreed to by the Owner in writing and the Owner will have the right to insist upon such performance at any time in the future.

 

20. PRINCIPAL LIABILITY

Any signatory for a Customer or a proprietary company Customer warrants that he or she is duly and properly authorised to act on behalf of the Customer and will be and remain personally responsible for the due performance of the Customer’s obligations as if the signatory was the Customer. If required by the Owner, the signatory will procure the execution by all Customer company directors of a guarantee to be prepared by or on behalf of the Owner.