Terms & Conditions of Trade
- “Hourly Hire” shall mean hourly hire Pty Ltd its successors and assigns or any person acting on behalf of and with the authority of Hourly hire Pty Ltd.
- “Client” shall mean the Client (or any person acting on behalf of and with the authority of the Client) as described on any quotation, work authorisation or other form as provided by Hourly hire to the Client.
- “Guarantor” means that person (or persons), or entity, which agrees to be liable for the debts of the Client on a principal debtor basis.
- “Works” shall mean Works supplied by Hourly hire to the Client (and where the context so permits shall include any supply of Materials as hereinafter defined) and are as described on the invoices, quotation, work authorisation or any other forms as provided by Hourly hire to the Client.
- “Materials” shall mean all Materials supplied by Hourly hire to the Client and includes any advice or recommendations (and where the context so permits shall include any supply of Works as defined above).
- “Equipment” shall mean Equipment supplied on hire by Hourly hire to the Client (and where the context so permits shall include any supply of Works) and is as described on the invoices, quotation, authority to hire, or any other work authorisation forms as provided by Hourly hire to the Client.
- “Price” shall mean the price payable for the Works as agreed between Hourly hire and the Client in accordance with clause 4 of this contract.
2. The Commonwealth Trade Practices Act 1974 (“TPA”) and Fair Trading Acts (“FTA”)
- Nothing in this agreement is intended to have the effect of contracting out of any applicable provisions of the TPA or the FTA in each of the States and Territories of Australia, except to the extent permitted by those Acts where applicable
- Any instructions received by Hourly hire from the Client for the supply of Works and/or the Client’s acceptance of Works supplied by Hourly hire shall constitute acceptance of the terms and conditions contained herein.
- Where more than one Client has entered into this agreement, the Clients shall be jointly and severally liable for all payments of the Price.
- Upon acceptance of these terms and conditions by the Client the terms and conditions are binding and can only be amended with the written consent of Hourly hire.
- The Client shall give Hourly hire not less than fourteen (14) days prior written notice of any proposed change of ownership of the Client or any change in the Client’s name and/or any other change in the Client’s details (including but not limited to, changes in the Client’s address, facsimile number, or business practice). The Client shall be liable for any loss incurred by Hourly hire as a result of the Client’s failure to comply with this clause.
- Works are supplied by Hourly hire only on the terms and conditions of trade herein to the exclusion of anything to the contrary in the terms of the Client’s order not withstanding that any such order is placed on terms that purport to override these terms and conditions of trade.
4. Price and Payment
At Hourly Hire's sole discretion the price shall be either:
- As indicated on invoices provided by Hourly hire to the Client in respect of Works supplied; or
- Hourly hire’s quoted Price (subject to clause 4.2) which shall be binding upon Hourly hire provided that the Client shall accept Hourly hire’s quotation in writing within Thirty (30) days.
Hourly hire reserves the right to change the Price in the event of a variation to Hourly hire’s quotation, including but not limited to, variations as a result of a rise in the cost of Materials and/or labour. Any variation from the plan of scheduled Works or specifications (including, but not limited to, any variation as a result of additional Works required due to hidden or unidentifiable difficulties beyond the reasonable control of Hourly hire such as hard rock barriers below the surface or iron reinforcing rods in concrete) will be detailed in writing and charged for on the basis of Hourly hire’s quotation and will be shown as variations on the invoice. Payment for all variations must be made in full at their time of completion. At Hourly hire’s sole discretion a non-refundable deposit may be required.
At Hourly Hire's sole discretion :
- Payment shall be due on delivery of the equipment; or
- Payment shall be due on the completion of works; or
- Payment shall be due before delivery of the equipment; or
- payment shall be due before commencement of the works; or
- Payment for approved clients shall be made by installments in accordance with Hourly Hire's payment schedule.
Where no payment schedule has been specified Hourly hire may submit a detailed payment claim at intervals not less than one (1) month for Works performed up to the end of each month. The value of Works so performed shall include the reasonable value of authorised variations and the value of materials delivered to the site but not yet installed. Time for payment for the Works shall be of the essence and will be stated on the invoice or any other forms. If no time is stated then payment shall be due twenty-one (21) days following the date of the invoice. Payment will be made by cash, or by cheque, or by bank cheque, or by direct credit, or by any other method as agreed to between the Client and Hourly hire. GST and other taxes and duties that may be applicable shall be added to the Price except when they are expressly included in the Price.
At Hourly Hire’s sole discretion delivery shall take place when the Client takes possession of the Equipment at the Client’s nominated address (in the event that the Works are delivered by Hourly hire or Hourly hire’s nominated carrier).
At Hourly hire’s sole discretion the costs of delivery are:
- Included in the price; or
- In addition to the price; or
- For the client's account.
The Client shall make all arrangements necessary to take delivery of the Equipment whenever it is tendered for delivery. In the event that the Client is unable to take delivery of the Equipment as arranged then Hourly hire shall be entitled to charge a reasonable fee for redelivery. Delivery to a third party nominated by the Client is deemed to be delivery to the Client for the purposes of this agreement.
The Client shall take delivery of materials tendered not with standing that the quantity so delivered shall be either greater or lesser than the quantity purchased provided that:
- Such discrepancy in quantity shall not exceed five percent (5%); and
- The price shall be adjusted pro-rata to the discrepancy.
The failure of Hourly Hire to deliver shall not entitle either party to treat this contract as repudiated. Hourly Hire shall not be liable for any loss or damage whatsoever due to failure by Hourly Hire to deliver (either partially or in full) promptly or at all, where due to circumstances beyond the control of Hourly Hire.
6. Equipment Hire
The Equipment shall at all times remain the property of Hourly hire and is returnable on demand by Hourly hire. In the event that the Equipment is not returned to hourly hire in the condition in which it was delivered Hourly hire retains the right to charge the Price of repair or replacement of the Equipment.
The Client shall:
- Keep the Equipment in there own possession and control and shall not assign the benefit of the Equipment nor be entitled to lien over the Equipment.
- Not alter or make any additions to the Equipment including but without limitation altering, make any additions to, defacing or erasing any identifying mark, plate or number on or in the Equipment or in any other manner interfere with the Equipment.
- Keep the Equipment, complete with all parts and accessories, clean and in good order as delivered, and shall comply with any maintenance schedule as advised by Hourly hire to the Client.
The Client accepts full responsibility for the safekeeping of the Equipment and the Client agrees to insure, or self insure, Hourly hire’s interest in the Equipment and agrees to indemnify Hourly hire against physical loss or damage including, but not limited to, the perils of accident, fire, theft and burglary and all other usual risks and will effect adequate Public Liability Insurance covering any loss, damage or injury to property or persons arising out of the use of the Equipment. Further the Client will not use the Equipment nor permit it to be used in such a manner as would permit an insurer to decline any claim.
If Hourly hire retains ownership of the Materials nonetheless, all risk for the Materials passes to the Client on delivery.If any of the Materials are damaged or destroyed following delivery but prior to ownership passing to the Client, Hourly hire is entitled to receive all insurance proceeds payable for the Materials. The production of these terms and conditions by Hourly hire is sufficient evidence of Hourly hire’s rights to receive the insurance proceeds without the need for any person dealing with Hourly hire to make further enquiries.
8. Underground Locations
Prior to Hourly hire commencing the Works the Client must advise Hourly hire of the precise location of all underground services on the site and clearly mark the same. The underground mains & Services the Client must identify include, but are not limited to, electrical services, gas services, sewer services, pumping services, sewer connections, sewer sludge mains, water mains, irrigation pipes, Telstra cables, fibre optic cables, oil pumping mains, and any other services that may be on site. Whilst Hourly hire will take all care to avoid damage to any underground services the Client agrees to indemnify Hourly hire in respect of all and any liability claims, loss, damage, costs and fines as a result of damage to services not precisely located and notified as per clause 8.1.