Terms & Conditions

In consideration of one or more of P & D Rigging & Crane Hire Pty Ltd (A.C.N. 006 565 911) or any of its subsidiaries, subcontractors, servants and/or agents in existence now or in the future (hereinafter referred to as the Contractor) supplying goods or services, including but not limited to, plant and equipment hire or crane services, the Client (meaning and including the person or entity on the face hereof being the person or entity requiring the services to be operated by the Contractor, and includes any such person or entity claiming through, under or in trust of such person or entity) agrees to be bound by the following conditions. The Client acknowledges that the provisions of the these Terms and Conditions apply to all services supplied by the Contractor.

1. Payment and Account Keeping Charges

1.1 The Client agrees to pay invoices from the Contractor within 30 days from the date of the statement, unless otherwise stated on the invoice.

1.2 Breach by the Client of its obligation to pay the account within the terms of 1.1 shall entitle the Contractor to require immediate payment of all invoices rendered by the Contractor to the Client.

1.3 The preferred method of payment is direct debit to the Contractor’s account.

2. Account Application and Enquires Regarding Credit

2.1 The Client authorises the Contractor to make all enquiries which the Contractor deems necessary in order to assess the credit worthiness of the Client including, without limitation, enquiries to any referee or to any credit reporting or credit rating organisation.

2.2 The Contractor may, in its absolute discretion, grant credit to the Client and determine the terms on which such credit will be granted and vary the terms of or withdraw any credit granted to the Client at any time and from time to time.

2.3 The Client undertakes to inform the Contractor immediately of:–

(a) any direct or indirect change in the ownership or control of the Client (if there is any change to the partners, shareholders or directors of the Client, a new credit application is required).;

(b) any fact or circumstance which detrimentally affects the Client’s business or financial security or ability to comply with these General Conditions of Credit.

3. Acceptance of Application and Ongoing Credit

3.1 The acceptance or refusal of any credit application shall be entirely at the discretion of the Contractor.

3.2 The granting of credit and the continued provision of credit shall be at the absolute discretion of the Contractor and may be withdrawn at any time without notice.

3.3 These terms and conditions apply to every contract between the Contractor and the Client, and or any other terms whether oral or in writing which may deviate from or are inconsistent with these terms and conditions are expressly excluded, obviated and rejected by the Contractor. This exclusion and rejection includes any statement by the Client that the Client’s terms and conditions shall prevail and notwithstanding any stipulation by the Client regarding the manner of declaring such rejection.

4. Fees and Charges

4.1 Unless otherwise agreed in writing, the Client will pay the service charges at the rate referred to in the Contractor’s price list as amended from time to time, calculated from the time the crane leaves the Contractor’s depot until it returns to such depot.

4.2 The Contractor shall be entitled to charge services fees at the rate applicable to the job in respect of any period of delay (including but not limited to delays suffered as a result of by any bogging or breakdown of the crane occasioned by the Client’s instructions) so far as such delay is not caused by or contributed to the Contractor.

5. Safety, Responsibility and Specification

5.1 The Client shall declare the weight of the goods and the Contractor will rely on such declared weight when arranging for handling, therefore the Client shall be responsible for all extra cost and risk incurred by the Contractor and for any and all damage sustained in reliance on the declared weight. The Client must disclose to the Contractor the nature of the goods to be handled, lifted and/or carried.

5.2 All goods are handled, lifted and/or carried entirely at the owner’s risk.

5.3 The Contractor is not a common carrier and does not accept the obligation or liability of Common Carriers. The Contractor may refuse the handling, lifting and/or carriage of goods for any person or of any class of goods at its discretion and without being bound to give any reason for such refusal.

6. Insurance

6.1 The Contractor has current insurance cover for comprehensive motor vehicle third party, workers compensation, public risk and liability for goods handled, lifted and carried. Insurance of goods shall not be affected by the Contractor for the benefit of the Client except with the written agreement of the Contractor and on receipt of express written instructions from the Client setting out an accurate description and value of the goods, provided that the Client has allowed sufficient time for the Contractor to carry out the instruction on each occasion. Any such insurance shall be at the sole cost of the Client.

7. Liability and Indemnity

7.1 Except as required by statute, the Contractor shall be under no liability to the Client or any third party for any loss, including (but not limited to) loss of profits and consequential loss or for damage to persons or property caused by any act or omission, including (but not limited to) negligent acts or omissions of the Contractor or the Contractor’s employees or agents.

7.2 Except as required by statute, all express and implied conditions and warranties in relation to the goods and/or services supplied by the Contractor are hereby excluded and the Contractor’s liability hereunder (if any) shall be limited at the Contractor’s discretion to the resupply of the equivalent goods and/or services or to the value of the goods and/or services supplied by the Contractor. The Client acknowledges that the limitation of liability in this clause 7.2 is fair and reasonable.

7.3 The Client indemnifies, and must keep indemnified, the Contractor, its officers, employees and agents (each and collectively, those indemnified for the purpose of this indemnity) in respect of any claim, action, damage, loss, liability, cost, charge, expense, outgoing or payment which those indemnified pay, suffer, incur or are liable arising out of or in connection with:-

(a) any breach of these conditions by the Client;

(b) any unlawful conduct by the Client;

(c) any negligent act or omission of the Client;

(d) personal injury or death of any person or loss of or damage to any property (including the property of those indemnified) caused or contributed to by the Client.

8. Joint and Several Liability

8.1 If the Client consists of more than one individual or corporation, then the liabilities assumed by those individuals or corporations shall be joint and several. 2 Version: April 2016

 

9. Recovery Cost

9.1 If the Contractor takes action to recover an amount outstanding from the Client, or from the directors of the Client company, it shall be entitled to recover, in addition to the amount unpaid, interest at the rate of 15% per annum on amounts outstanding in excess of the period allowed by 1.1 together with its reasonable costs of the recovery action including, but not limited to legal costs and expenses.

9.2 Any debt collection, commission and / or any other out of pocket expenses including legal costs & contingencies fees shall be payable by the Client.

10. Privacy Act

10.1 The Client and each of the persons signing on its behalf:–

(a) hereby authorises the Contractor to make such enquiries (including of credit reporting agencies and bankers) as the Contractor considers necessary for the purpose of this application and for continuing to provide credit.

(b) have been informed, in accordance with section 18E (8) (c) of the Privacy Act 1988 (Cth), that certain items of personal information contained in this application and permitted to be kept on a credit information file, may be disclosed to a credit reporting agency.

(c) agree(s) that if the Contractor considers it relevant to collecting overdue payments in respect of commercial credit provided to the Client then the Contractor may receive from a credit reporting agency a credit report containing personal information about the Client and any person signing on its behalf in relation to collecting overdue payments.

(d) agree(s) that the Contractor may give to and seek from other credit providers information about the Client or any person signing on the Client’s behalf credit worthiness, credit standing, credit history or credit capacity where such information may be provided by credit providers pursuant to the Privacy Act 1988 (Cth).

11. Personal Property Securities Act 2009 (Cth) (PPSA)

11.1 In order to protect the Contractor’s ownership of property supplied to the Client under this Agreement, the Client:–

(a) grants to the Contractor a security interest in terms of, and as defined in, the Personal Property Securities Act 2009 (Cth) over all property supplied by the Contractor to the Client of whatsoever nature (other than as limited by the PPSA) which security interests are capable of, and shall be evidenced by, registration of security interests on the Personal Property Securities Register (the PPSR); and

(b) consents to the registration of the security interests on the PPSR in accordance with the PPSA; and

(c) agrees that all property supplied by the Contractor pursuant to this Agreement shall remain at all times the chattels of the Contractor.

11.2 The security interest granted pursuant to Clause 11.1 (a) of this Agreement is intended to be a purchase money security interest in respect of any property supplied by the Contractor to the Client.

11.3 The Client acknowledges that the Contractor is entitled to register a security interest on the PPSR recording the existence of the security interests granted or to be granted pursuant to this Agreement, and agrees to provide the Contractor with all assistance reasonably requested by the Contractor in order to facilitate such registration.

11.4 The Client acknowledges and covenants that:–

(a) the Contractor can exercise its rights as a secured creditor pursuant to this Clause 11 if there is any breach of this Agreement by the Client;

(b) it shall store all property provided to it by the Contractor separately and shall ensure it is clearly identified as property supplied to it, and owned, by the Contractor;

(c) the Contractor may enter onto the Client’s premises to remove all property supplied by the Contractor to the Client should there be a breach of this Agreement by the Client and the Client shall assist the Contractor with any such removal;

(d) in the event that the Client fails, refuses and/or neglects to follow all instructions in protecting the property supplied by the Contractor and/or ignores the proper storage processes thereby causing damage to the said property, the costs of repairing any damage to the property shall be borne by the Client.

11.8 The Client shall unconditionally ratify any actions taken by the Contractor under this clause.

12. Assignment/Subcontracting

12.1 The Contractor shall be entitled to arrange without reference to the Client for any other person, persons, firm or corporate (the Sub-Contractor) to undertake the Contractor’s obligations under this agreement in the event that the Contractor in its absolute discretion. In the event of subcontracting by the Contractor, the Client hereby indemnifies the Contractor in respect of any claim, action, damage, loss, liability, cost, charge, expense, outgoing or payment suffered by the Contractor to the extent that such loss or damage was caused by any acts, or negligence on the part of the Sub-Contractor or its servants or agents.

12.2 In such arrangement referred to at clause 8.1, the Contractor shall be deemed to act as the agent of the Sub-Contractor which the Sub-Contractor shall be entitled to the benefit of these conditions to the same extent as the Contractor.

13. Variation

13.1 These General Conditions of Credit may be varied or updated from time to time by the Contractor and the variations shall take effect upon a copy of the varied terms being provided to the Client.

14. Warranty

14.1 The Client represents and warrants that all information set out in any account application provided to the Contractor by the Client is true and correct in all respects and not, whether by omission, or otherwise, misleading and that the Client has not withheld from the Contractor any fact material to the decision of the Contractor to provide credit to the Client.

14.2 The Client further represents and warrants that it is presently in no financial difficulty and is capable of complying with these General Conditions of Credit.

15. Force Majeure

15.1 If performance of the services or provision of any equipment hire property is prevented or delayed, in part or all, by reason of act of God, or the consequence thereof including, but not limited to accident, breakdown or defect in the equipment, delays or damage in transportation or other causes beyond the Contractor’s control, the Contractor shall not be responsible and that Client shall not be entitled to make any claim in respect of such.

16. Severance

16.1 If any of these General Conditions of Credit are subsequently declared illegal or unenforceable, then such illegal or unenforceable terms or conditions shall be severed herefrom and the remaining terms and conditions shall continue in full force and effect.

17. Governing Law

17.1 These General Conditions of Credit shall be governed by the law of the State of Victoria and each party irrevocably and unconditionally submits to the non-exclusive jurisdiction of the courts of the State of Victoria.

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