Jamieson Hire Terms & conditions
Vehicle Repairs by a Jamieson Accredited Repairer
Unless previous arrangements for repairs and maintenance have been agreed upon, the following will apply: Any faults, damage, or wear and tear issues found that need repairs or maintenance carried out on any equipment, MUST be reported to the Jamieson Workshop (08 8283 0966) for further instructions. Jamieson will only allow repairs and maintenance to be carried out by Certified, Qualified & Authorised Repairers.
1. Maintenance & Use of Equipment etc.
THE Hirer agrees (a) to keep the equipment in good order properly maintained [AS ABOVE] and serviced so that the equipment shall at all times be in first class condition (reasonable wear and tear only excepted); (b) to indemnify the Owner against loss of damage to the equipment (including lawful confiscation thereof); (c) not to alter or make any addition to the equipment without the previous consent in writing of the Owner and not to alter any identifying number or mark thereon; (d) to keep the equipment in the personal control of the Hirer and not to attempt or purport to sell, dispose of or encumber the equipment in any way; (e) not to assign this Agreement or the Hirer’s rights hereunder without the prior written consent of the Owner; (f) to notify the Owner immediately in writing of any change in the Hirer’s address; (g) not to use the equipment except in the State in which the Hirer’s address appearing hereon is located or such other State or States as the Owner may from time to time in writing approve; (h) not to relocate the equipment without the Owner’s approval; (i) to produce the equipment for inspection from time to time at the request of the Owner; (j) to notify the Owner immediately following any loss or damage to the equipment; (k) not to use or install the equipment in a manner that would lead to the equipment becoming a fixture to land; and (l) any replacement or repair or addition to the equipment forms part of the equipment and becomes the property of the Owner.
THE Hirer further agrees (a) to insure and keep the equipment insured against fire accident, collision, theft, loss damage and third party, personal injury and public liability risks(at no less than $20 million dollars on a per incident basis) and such other risks as the Owner may require for an amount equal to the full insurable value of the equipment and to insure and keep the Owner insured against all for (or liability limited to such extent as the Owner may approve in writing) howsoever arising in respect thereof with a reputable responsible and solvent insurer in the name of the Owner as owner and the name of the Hirer as Hirer for respective rights and interest; (b) to hand to the Owner all policies of insurance and to pay promptly all premiums and stamp duty in respect of such policies and to permit the Owner to receive all insurance monies and production hereof shall be proof of the irrevocable authority of the Owner to receive the same; (c) to comply with all relevant acts, regulations and by-laws relating to the registration of licensing of the equipment or in any manner whatsoever relating to the equipment or the use thereof and pay promptly all requisite fees and charges; (d) not to do or permit or suffer to be done anything which might or could prejudice any insurance as aforesaid, (e) to indemnify the Owner against any claims and costs whatsoever arising our of the use, operation or keeping of the equipment or any defect therein present or future or in any manner relating thereto;(f) at the expiration of this Agreement or upon the sooner determination of this Agreement to deliver up the equipment at the Hirer’s expense to the Owner at the address of the Owner appearing hereon or such other place as the Owner may in writing direct in good order repair and condition; and (g) if the Hirer fails to obtain any insurance required by this clause, or if the Owner so elects, then the Owner may effect such policy or policies of insurance in place of the Hirer and may recover the cost of such policy as an amount due under this Agreement.
3. Payment Terms
THE Hirer further agrees (a) to pay the Owner either on the date hereof otherwise at the times and in the manner provided in the Schedule hereto the total agreed rate described in the Schedule for the whole period of this Agreement; (b) to make all payments to the office of the Owner shown on the reverse hereof or such other place as the Owner may direct in writing; (c) to pay interest at the rate of 15% per annum on any monies payable hereunder which may from time to time be overdue; (d) to pay to the Owner any and all costs incurred (including legal costs on a full indemnity basis) in retaking or attempting to retake possession of the equipment; (e) to repay to the Owner on demand any monies which the Owner may think fit to pay to make good any failure by the Hirer to comply with any obligation hereunder or any other obligation incurred by the Hirer in respect of the equipment and any other costs and expense (including legal costs on a full indemnity basis) which the Owner incurs or may incur in the enforcement or protection of the rights of the Owner hereunder or in the equipment including (among other things) monies paid by the Owner in releasing any lien claimed over the equipment, in dismantling and removing the equipment from any premises and in the repair or renovation to such premises; (f) that the Owner may enter any premises where the Owner believes the equipment may be located for the purpose of inspecting or testing the equipment; and (g) that the Owner is hereby irrevocably authorised to use the name of the Hirer, and to act on behalf of the Hirer in exercising any rights or instituting carrying on or enforcing any legal proceedings which the Owner may think desirable to protect the rights of the Owner in the equipment.
4. Hirer’s Breach & Enforcement
IF during this Agreement (a) the Owner ascertains that the Hirer has made a false statement in relation to this instrument; (b) the Hirer does not pay the agreed rate upon the date hereof as aforesaid or thereafter at any time does not pay within 14 days of the applicable date referred to in the Schedule any instalment therein described; (c) the Hirer shall commit any breach of the terms, conditions and provisions herein contained which the Hirer shall fail to rectify within 14 days notice by the Owner to do so; (d) the Hirer shall commit or suffer an act of bankruptcy or being a company shall go into liquidation or receivership; (e) execution or distress against the Hirer or the Hirer’s goods shall be levied; (f) any insurance proposal made by Hirer in respect of the equipment be declined or any insurance policy in respect of the equipment be cancelled; (g) the Hirer shall do or cause to be done, permit or suffer any act or thing likely to endanger the safety or condition of the equipment; or (h) the Hirer is convicted of an indictable offence or is sentenced to imprisonment; then in any such case the Owner may at its option (without prejudice to any other right or remedy of the Owner herein contained or implied or at general law): (i) take appropriate action to enforce the performance of this Agreement by the Hirer and/or to recover damages for breach thereof; or (ii) by notice to the Hirer terminate this Agreement and in such event the Hirer shall forthwith return the equipment to the Owner (or to such place as may be nominated by the Owner) and in the event of the Hirer failing to so return the equipment the Owner may at any time thereafter retake possession of the equipment and the Hirer hereby authorizes the Owner to enter upon any premises where the equipment may be located and take possession of the equipment and the Hirer hereby waives and releases the Owner from any liability for any damage or loss occasioned thereby.
5. Essential Terms
IT is hereby expressly agreed and declared that the provisions contained in Clause 3 (a) hereof (punctually pay the agreed rate) Clause 1 (d) hereof (as to possession and title to the equipment) and Clause 1 (a) hereof (as to the maintenance and repair of the equipment) are (without limiting the essentiality of any other provision herein contained or implied) essential terms of the Agreement and that the breach, non-observance or non-performance by the Hirer of any one or more such terms shall be deemed to be a breach of an essential term of this Agreement and a repudiation of this Agreement by the Hirer.
IN the event that the Owner terminates this Agreement following a breach by the Hirer of an essential term hereof or upon a repudiation of this Agreement by the Hirer (whether being a breach or repudiation referred to in Clause 5 hereof or otherwise) then (without prejudice to any other rights or remedies of the Owner herein contained or implied or at general law) the Hirer shall pay to the Owner upon demand the aggregate of (a) all unpaid agreed rate to the date of termination of this Agreement or to the date of repossession of the equipment (whichever shall first occur) together with any other monies which may be payable to the Owner pursuant to the terms and conditions hereof, and (b) the balance of the total agreed rate in respect of the period from the date of termination of this Agreement or the date of repossession of the equipment (whichever shall first occur) until the end of the period of this Agreement referred to in the Schedule hereto, after discounting to its present value each instalment which would otherwise have been payable at a later date by applying a discount rate equal to the greater of the rate of interest implicit in this Agreement or the rate of interest implicit in agreements of a similar nature to this Agreement entered into by the Owner at or immediately prior to the date of termination hereof. Upon payment to the Owner of all monies payable hereunder and interest thereon (if applicable) the Hirer shall be relieved of all liability to the Owner for agreed rate under this Agreement.
7. Hirer of Equipment Only
THE Hirer acknowledges that, unless otherwise expressly provided herein, nothing herein contained shall confer on the Hirer any property or interest in or to the equipment and it is agreed that any purported right or representation or exception which may have been given to the Hirer relating to the purchase or acquisition of the equipment (or equipment of a similar value and description) by the Owner is hereby expressly negative and, if actually given, is hereby avoided (except where this Agreement is governed by the law of the State of South Australia insofar as certain warranties and conditions may be implied by the Sales of Goods Act 1895 (SA) (as amended).
8. Condition of Equipment
THE Hirer warrants that before signing this Agreement he has examined the equipment and has satisfied himself as to the condition of the equipment and its suitability for the Hirer’s purposes and the Hirer agrees that no express warranty, condition or representation has been given by the Owner as to the quality, fitness, safety, suitability or otherwise of the equipment prior to or at any time during the continuance of this Agreement and the Hirer’s obligation to pay agreed rate and otherwise hereunder shall continue notwithstanding the occurrence of any defect or breakdown in the equipment. Nothing contained in this Agreement shall be construed as an express warranty or representation of any kind by or on behalf of the Owner. The Hirer further agrees that so far as the law permits all conditions and warranties which might be implied on the part of the Owner are hereby negative and excluded. Liability for a breach of any implied condition or warranty on the part of the Owner which is not capable of exclusion shall be limited (but only to the extent permitted by law) to any one or more of the replacement of the equipment, the supply of equivalent equipment, the repair of the equipment, the payment of the cost of replacing the equipment or renting equivalent equipment or the payment of the cost of having the equipment repaired, whichever the Owner shall in its discretion think fit.
9. Binding Effect of Agreement
THIS Agreement shall not be binding upon the Owner until the acceptance of the Owner has been endorsed hereon and the provisions of this Clause shall not be affected or prejudiced by reason of any pre-payment of monies by the Hirer or the delivery of the equipment to the Hirer and any such delivery shall pending acceptance as aforesaid be deemed merely as conditional but in the event of the equipment coming into the possession of the Hirer before such acceptance, the obligations of the Hirer herein as to insurance, care and use of the equipment and otherwise shall be deemed in force from such possession. The signing of any such acceptance shall constitute an acceptance although no attempt be made to advise the Hirer thereof. Any agreement arising from such acceptance shall be governed by the law of the State of South Australia. The Hirer consents to the non-exclusive jurisdiction of the courts in South Australia with regard to any dispute arising under or out of the Agreement and waives any right to claims those courts are an inconvenient forum.
ANY notice to be given by the Owner shall without prejudice to any other method of giving the same be deemed to have given if placed in the post addressed to the Hirer at the last known place of abode or business of the Hirer, postage paid and shall be deemed to have been received on the second business day following such posting.
11. Owner Has Right to Sell or Assign Equipment
THE Owner may (subject always to the rights of the Hirer hereunder) sell or assign either absolutely or by way of security its rights under this Agreement and to the equipment.
12. Hirer to Pay Tax, Stamp Duty etc.
THE Hirer agrees to indemnify the Owner against any liability or additional liability which the Owner may incur under any Goods and Services Tax Act or Income Tax Assessment Act by reason of the use of the equipment by the Hirer for any purpose other than as stated by the Hirer to the Owner.
A Certificate given by the Owner or any person duly authorized by the Owner shall be prima facie evidence of the amount of monies due, owing or recoverable from the Hirer hereunder.
THE Hirer agrees to pay all stamp duties and other duties (including Financial Institutions duty and Goods and Services Tax), fees and imposts payable to any Government or semi-Government body in respect of or arising as a result of this Agreement or the equipment referred to herein. It is acknowledged that an estimate of the stamp duty and financial institutions duty payable has been included in the agreed rate referred to in the Schedule to this Agreement but that such estimate shall in no way be construed as limiting the obligations of the Hirer pursuant to this Clause should additional duties be payable.
15. No Waiver of Rights
NO waiver by the Owner of any default, breach or repudiation of this Agreement by the Hirer shall affect the rights of the Owner in respect of any further or continuing default, breach or repudiation.
16. Time of Essence
IN respect of any provision herein requiring the Hirer to do any matter or thing within a stipulated time, time shall be of the essence.
17. Variation of Hire Period
IN the event that the Hirer requests a variation of the period of this Agreement or of the equipment hired under this Agreement the Owner may in its absolute discretion agree to such variation and forward an Acknowledgment of Variation of Hire Agreement to the Hirer setting out the details of any such change. Such variation shall be effective from the date specified therein and shall be binding on the Hirer upon the signing of the Acknowledgment by the Hirer. The total agreed rate payable hereunder shall be varied accordingly and in all other respects the terms and conditions of this Agreement shall remain unchanged. In the event that a copy of the Acknowledgment signed by the Hirer is not received by the Owner within seven (7) days of the date of the Acknowledgement, the Owner may elect not to be bound by such variation.
18. Maintenance Charges
IN the event that maintenance charges have been included in the agreed rates payable hereunder, the Hirer acknowledges (a) that such charges have been included in the agreed rates at the request of the Owner who is in no way responsible for the maintenance of the equipment; and (b) that any failure of performance or breach on the part of the party providing the maintenance services shall in no way affect the obligations of the Hirer to the Owner under this Agreement.
NO objection shall be made to the Owner entering this Agreement as agent for any other person (whether disclosed or otherwise) or to the fact that such other person may have or acquire the property in the equipment.
ANY reference in this Agreement to the singular shall include the plural and vice versa, and any reference herein to the masculine or neuter genders shall include corporation or any other legal entity; and any reference to “the equipment” shall include any attachments to the equipment or any parts or accessories from time to time in addition to or in replacement of any part of the equipment referred to in the Schedule hereto.
THIS Agreement shall bind the Hirer, his successors, executors, administrators and assigns and endure to the benefit of the Owner, its successors and assigns.
IN the event that any provision (or part thereof) contained in this Agreement is rendered void invalid or unenforceable, then such provision (or part thereof) shall be severed from this Agreement without affecting the remaining provisions hereof.
IN the event of the Hirer failing to return the equipment at the expiration of this Agreement then the period of this Agreement shall be deemed extended from month to month at a monthly agreed rate equal to the average monthly agreed rate during the term of this Agreement and upon the terms set forth in this Agreement but so that such extended period may be determined by the Owner demanding possession of the equipment at any time or by the Hirer delivering the equipment to the Owner.
24. Retention of Title & PPSR Registration
24.1 – The Owner will retain legal title and ownership of the equipment at all times during the term of the Lease.
24.2 – The Hirer hereby acknowledges that the Lessee’s rights and obligations in respect of the equipment is expressly limited to that of a lessee.
Jamieson Hire Pty Ltd – Terms & Conditions
24.3 – Except for the purpose of securing the Owner’s interest in the equipment, the Hirer is prohibited from charging, pledging or otherwise encumbering the equipment as security or collateral security for any reason whatsoever.
24.4 – To secure the prompt payment of all amounts payable by the Hirer and the prompt performance of the Hirer’s obligations under this Agreement, the Hirer grants to the Owner a Security Interest and more particularly, to the extent this lease constitutes a PPS Lease, a Purchase Money Security Interest, over the equipment.
24.5 – PURSUANT to section 115 of the Personal Property Securities Act 2009 (SA) (as amended) (“PPSA”), the Hirer agrees that the following provisions of the PPSA will not apply to this Agreement: sections 95, 96, 130, 132(3)(d), 132(4), 142, 143. Pursuant to section 157(3) of the PPSA, the Hirer also waives the right to receive a verification statement (as defined in the PPSA).
25. Option to Buy/Must Buy Equipment
25.1 – This clause 25 applies where the Schedule to this Agreement provides that the Owner has offered to sell the equipment referred to in the Schedule to the Hirer and the Hirer has accepted the offer in writing.
25.2 – The purchase price for the equipment shall be the price stated in the Schedule or as otherwise agreed between the Owner and the Hirer in writing.
25.3 – The agreed purchase price for the equipment must be paid in full before legal title to the equipment is transferred to the Hirer and the Owner retains full legal title to the equipment pending such transfer of legal title to the Hirer.
25.4 – Unless otherwise agreed in writing, the purchase price is exclusive of any incidental charges, taxes or expenses associated with the equipment including (without limitation) the delivery of the equipment to the Hirer.
25.4 – The Hirer hereby acknowledges and agrees that the equipment:
(a) is free from any defects and is of merchantable quality;
(b) is fit for the purpose for which goods of the same kind are commonly supplied;
(c) complies with any applicable industry standards;
(d) conforms to the Hirer’s specifications (if any);
(e) is accepted in its present condition as at the relevant date the sale and purchase thereof is agreed and that the Hirer will not be entitled to set-off or reduce the purchase price, unless agreed by the Owner in writing.
25.5 – The Owner hereby warrants that:
(a) the equipment is free from any liens, charges or encumbrances to third parties;
(b) the supply of the equipment does not infringe the rights of any third party;
(c) it has full legal and equitable title to the equipment.
26. Cleaning Fee
The Owner retains the right to charge a fee not exceeding $500.00 for the cleaning of the equipment where the Owner in the Owner’s absolute discretion considers that the equipment has not been cleaned all properly cleaned by the Hirer prior to its surrender.
27. Security Deposit
In addition to the rental charges, at the option of the Owner, the Hirer is required to pay to the Owner a security deposit amount as specified in the Schedule prior to taking possession of the equipment as security for the performance by the Hirer of the terms and conditions of this Agreement. Without limiting the rights of the Owner under this Agreement, the Owner may use the whole or part of the security deposit for any repairs, damage or other expenses arising out of the Hirer’s use of the equipment. Further, the security deposit shall be forfeited to the Owner in full in the event of default of this Agreement by the Hirer.
28. Change of Equipment
28.1 – If the Hirer leases further equipment from the Owner, the Owner may require the Hirer to complete and sign a new Schedule but the terms and conditions of this Agreement shall otherwise continue to apply to the lease of such further equipment.
28.2 – The Owner may replace any of the equipment (outgoing equipment) with substitute further equipment (incoming equipment) if: –
(a) the incoming equipment is equivalent in all material respects and for all material purposes, then upon giving two days notice;
(b) the incoming equipment is a superior or newer item and substantially equivalent for all material purposes, then upon reasonable notice;
(c) the Owner considers that the outgoing equipment is unsafe or insubstantial need of repair (in which case no notice shall be required); or,
(d) as agreed between the parties.
29. Entire Agreement
This Agreement constitutes the entire agreement between the parties as to its subject matter and supersedes any prior agreements, understandings or representations of any kind. This Agreement may be amended in writing by both the Owner and the Hirer.
30. Governing Law & Jurisdiction
30.1 – This Agreement is governed by the laws of the State of South Australia save and except where the Commonwealth law applies in priority to all to the exclusion of the relevant South Australian law.
30.2 – The parties hereby submit to the exclusive jurisdiction of the Courts of the State of South Australia, whether in the exercise of their State all cross-vesting jurisdiction.