Terms of Hire

1. Definitions 

1.1 “Contract” means the terms and conditions contained herein, together with any quotation, Hire form, invoice or other document or amendments expressed to be supplemental to this Contract. 

1.2 “HMC Group Solutions” means HMC Group Solutions Pty Ltd, its successors and assigns or any person acting on behalf of and with the authority of HMC Group Solutions Pty Ltd. 

1.3 “Client” means the person/s, entities or any person acting on behalf of and with the authority of the Client requesting HMC Group Solutions to provide the services as specified in any proposal, quotation, order, invoice or other documentation, and:

(a) if there is more than one Client, is a reference to each Client jointly and severally; and

(b) if the Client is a partnership, it shall bind each partner jointly and severally; and
(c) if the Client is a part of a Trust, shall be bound in their capacity as a trustee; and 
(d) includes the Client’s executors, administrators, successors and permitted assigns. 

1.4 “Equipment” means all Equipment (including any accessories) supplied on hire by HMC Group Solutions to the Client (and where the context so permits shall include any incidental supply of Services). The Equipment shall be as described on the invoices, quotation, authority to hire, or any other work authorisation forms as provided by HMC Group Solutions to the Client (where the context so permits the terms ‘Equipment’ or ‘Services’ shall be interchangeable for the other). 

1.5 “Minimum Hire Period” means the Minimum Hire Period as described on the invoices, quotation, authority to hire, or any other forms as provided by HMC Group Solutions to the Client. 

1.6 “Hire Period” means the term of the hire of the Equipment as specified on any invoices, quotation, authority to hire, or any other forms as provided by HMC Group Solutions to the Client and which may include weekends and/or public holidays, and continues until the supply of the Services is completed or the Hire Contract is terminated in accordance with these terms and conditions or such further period as agreed by the parties in writing. 

1.7 “Hire Docket” means the form issued by HMC Group Solutions at the time an order is submitted to HMC Group Solutions and includes job details, Equipment and other relevant details. 

1.8 “Dry Hire” means that the Equipment is supplied by HMC Group Solutions without an operator. 

1.9 “Wet Hire” means that the Equipment is supplied by HMC Group Solutions with an operator who shall at all times remain an employee or representative of HMC Group Solutions. 

1.10 “Site” means the location/s at which the Equipment is to be operated. 

1.11 “LTD Waiver” means the Loss, Theft, and Damage Waiver charge as set out in the hire Contract (where applicable) where claim is made for the purpose of repair or replacement of HMC Group Solutions’s Equipment).. 

1.12 “LTD Waiver Fee” means an amount equal to ten percent (10%) and/or five hundred ($500.00) whichever is the greater on all processed claims, subject to clause 11. 

1.13 “PPSA” means the Personal Property Securities Act 2009 (Cth) as amended from time to time. 

1.14 “PPSR” means the Personal Property Securities Register established under the PPSA. 

1.15 "Confidential Information” means information of a confidential nature whether oral, written or in electronic form including, but not limited to, this Contract, either party’s intellectual property, operational information, know-how, trade secrets, financial and commercial affairs, contracts, client information (including but not limited to, “Personal Information” such as: name, address, D.O.B, occupation, driver’s license details, electronic contact (email, Facebook or Twitter details), medical insurance details or next of kin and other contact information (where applicable), previous credit applications, credit history) and pricing details. 

1.16 “Cookies” means small files which are stored on a user’s computer. They are designed to hold a modest amount of data (including Personal Information) specific to a particular client and website, and can be accessed either by the web server or the client’s computer. If the Client does not wish to allow Cookies to operate in the background when ordering from the website, then the Client shall have the right to enable / disable the Cookies first by selecting the option to enable / disable provided on the website, prior to ordering Equipment via the website. 

1.17 “Charges” means the cost of the hire of the Equipment (plus any GST where applicable) as agreed between HMC Group Solutions and the Client subject to clause 5 of this Contract. 

1.18 “GST” means Goods and Services Tax as defined within the “A New Tax System (Goods and Services Tax) Act 1999” (Cth). 

2. Acceptance 

2.1 The Client is taken to have exclusively accepted and is immediately bound, jointly and severally, by these terms and conditions if the Client places an order for, or accepts Delivery of, the Equipment. 

2.2 In the event of any inconsistency between the terms and conditions of this Contract and any other prior document or schedule that the parties have entered into, the terms of this Contract shall prevail. 

2.3 Any amendment to the terms and conditions contained in this Contract may only be amended in writing by the consent of both parties. 

2.4 Electronic signatures shall be deemed to be accepted by either party providing that the parties have complied with Section 9 of the Electronic Transactions Act 2000 or any other applicable provisions of that Act or any Regulations referred to in that Act. 

2.5 Both parties acknowledge and agree that this Contract does not constitute a partnership between the parties or constitute one party as agent or representative of another. 

2.6 The special conditions (if any) set out by HMC Group Solutions in any quotation, order or other document shall form part of this Contract, unless otherwise stated. In the event of any inconsistency between the special conditions and any other term of this Contract, the special conditions shall prevail to the extent of the inconsistency. 

2.7 None of the Equipment shall be sublet or cross-hired by the Client. The Client shall not assign or transfer their interest in this Contract or part with possession of all or any portion of the Equipment without the prior written consent of HMC Group Solutions, which consent may be arbitrarily withheld. 

3. Errors and Omissions 

3.1 The Client acknowledges and accepts that HMC Group Solutions shall, without prejudice, accept no liability in respect of any alleged or actual error(s) and/or omission(s): 

(a) resulting from an inadvertent mistake made by HMC Group Solutions in the formation and/or administration of this Contract; and/or 

(b) contained in/omitted from any literature (hard copy and/or electronic) supplied by HMC Group Solutions in respect of the Equipment hire 
and/or/services. 

3.2 In the event such an error and/or omission occurs in accordance with clause 3.1, and is not attributable to the negligence and/or wilful 

misconduct of HMC Group Solutions; the Client shall not be entitled to treat this Contract as repudiated nor render it invalid. 

4. Change in Control 

4.1 The Client shall give HMC Group Solutions not less than fourteen (14) days prior written notice of any proposed change of ownership of the Client and/or any other change in the Client’s details (including but not limited to, changes in the Client’s name, address, contact phone, or fax number/s, change of trustees or business practice). The Client shall be liable for any loss incurred by HMC Group Solutions as a result of the Client’s failure to comply with this clause. 

5. Charges and Payment 

5.1 The Client shall pay the Charges to HMC Group Solutions for the duration of the Hire Period, which (at HMC Group Solutions’s sole discretion) shall be either: 

(a) as indicated on invoices provided by HMC Group Solutions to the Client in respect of Equipment supplied on hire; 

(b) HMC Group Solutions’s current Charges as at the date of Delivery, according to HMC Group Solutions’s current pricelist rates (rates are subject to change upon written notice to the Client and shall take effect from the date of notice. In the event that the Client does not accept the revised rates, the Client has the right to terminate without prejudice upon the required notice of termination); or

(c) calculated on a working day of eight (8) hours per day (from 7.00am to 3.30pm, allowing a thirty (30) minute lunch break); or 

(d) HMC Group Solutions’s quoted Charges (subject to clauses 5.2), which will be valid for the period stated in the quotation or otherwise for a period of thirty (30) days. 

5.2 HMC Group Solutions reserves the right to vary the Charges, in the event that: 

(a) a variation to HMC Group Solutions’s quotation is requested; or

(b) where HMC Group Solutions is required to mobilisation and demobilisation Equipment when HMC Group Solutions is required to transport the Equipment to and from HMC Group Solutions’s depot, unless otherwise agreed; or

(c) where Equipment is used outside HMC Group Solutions’s standard working hours (as specified in clause 5.1(c) above) or on a weekend or public holiday. “Excess” is more than eight (8) hours per calendar day; or 

(d) rates in respect of HMC Group Solutions’s personnel are subject to additional Charges for loading, penalties and allowances as applicable to HMC Group Solutions personnel pursuant to their terms of engagement (including but not limited to, night shifts, weekends, standby, overtime, public holidays, meals, travel and accommodation rates); or 

(e) a fuel levy shall be payable where the price of diesel fuel exceeds the fuel price specified in HMC Group Solutions’s pricelist rates. 

5.3 Variations will be charged for on the basis of HMC Group Solutions’s quotation, and will be detailed in writing, and shown as variations on HMC Group Solutions’s invoice. The Client shall be required to respond to any variation submitted by HMC Group Solutions within ten (10) working days. Failure to do so will entitle HMC Group Solutions to add the cost of the variation to the Charges. Payment for all variations must be made in full at the time of their completion. 

5.4 At HMC Group Solutions’s sole discretion, a deposit (in the form of a bond) shall be required at the commencement of this Contract, which shall be refunded to the Client by within thirty (30) days of the return of the Equipment, provided that the Client has complied with their obligations hereunder. The deposit may be used to offset any applicable charges payable by the Client and any outstanding balance thereof shall be due as per clause 5.5. 

5.5 Time for payment for the Equipment being of the essence, the Charges will be payable by the Client on the date/s determined by HMC Group Solutions, which may be:

(a) the date specified on any invoice or other form as being the date for payment; or 

(b) failing any notice to the contrary, the date which is thirty (30) days following the date of any invoice given to the Client by HMC Group Solutions. 

5.6 Payment may be made by cash, cheque, bank cheque, electronic/on-line banking, credit card (a surcharge per transaction may apply) or by any other method as agreed to between the Client and HMC Group Solutions. 

5.7 HMC Group Solutions may in its discretion allocate any payment received from the Client towards any invoice that HMC Group Solutions determines and may do so at the time of receipt or at any time afterwards. On any default by the Client HMC Group Solutions may re-allocate any payments previously received and allocated. In the absence of any payment allocation by HMC Group Solutions, payment will be deemed to be allocated in such manner as preserves the maximum value of HMC Group Solutions’s Purchase Money Security Interest (as defined in the PPSA) in the Equipment. 

5.8 The Client shall not be entitled to set off against, or deduct from the Charges, any sums owed or claimed to be owed to the Client by HMC Group Solutions nor to withhold payment of any invoice because part of that invoice is in dispute. 

5.9 Unless otherwise stated the Charges does not include GST. In addition to the Charges the Client must pay to HMC Group Solutions an amount equal to any GST HMC Group Solutions must pay for any supply by HMC Group Solutions under this or any other agreement for the hire of the Equipment. The Client must pay GST, without deduction or set off of any other amounts, at the same time and on the same basis as the Client pays the Charges. In addition, the Client must pay any other taxes and duties that may be applicable in addition to the Charges except where they are expressly included in the Charges. 

5.10 Receipt by HMC Group Solutions of any form of payment other than cash shall not be deemed to be payment until that form of payment has been honoured, cleared or recognised. 

6. Credit Card Information 

6.1 HMC Group Solutions will: 

(a) keep the Client’s personal details, including credit card details for only as long as is deemed necessary by HMC Group Solutions; 

(b) not disclose the Client’s credit card details to any third party;

(c) not unnecessarily disclose any of the Client’s Personal Information, except in accordance with the Privacy Policy (clause 25) or where 
required by law. 

6.2 The Client expressly agrees that, if pursuant to this Contract, there are: 

(a) any unpaid Charges; 

(b) other amounts due and outstanding by the Client;

(c) any Equipment (or any part of them) supplied on hire that are lost or damaged;

(d) any other additional charges that are due from the Client which were not known at the time of the return of the Equipment,

HMC Group Solutions is entitled to immediately charge the Client’s nominated credit card for these amounts, and is irrevocably authorised to complete any documentation and take any action to recover from the credit card issuer any and all amounts which may be due by the Client pursuant to the terms of this Contract. 

7. Hire Period 

7.1 The Hire Period shall commence, and Charges shall be paid by the Client to HMC Group Solutions, from the time the Equipment departs from HMC Group Solutions’s premises and will continue until (whichever last occurs):

(a) the termination of the Hire Period; or

(b) the return of the Equipment to HMC Group Solutions’s premises in good operating condition, reasonable wear and tear excepted; or 

(c) the date which the Equipment is available for Recovery by HMC Group Solutions, as notified by the Client (if such Recovery is agreed to by HMC Group Solutions), provided the Equipment is recovered in good operating condition, reasonable wear and tear excepted; or

(d) the expiry of the Minimum Hire Period. 

7.2 Notwithstanding clause 6, the Client shall provide a minimum of one (1) weeks’ notice to HMC Group Solutions of their intention to return the Equipment, and the date of expiry or cessation of this Contract shall in all cases be treated as a full day’s hire. 

7.3 Notwithstanding anything contained in this Contract to the contrary, HMC Group Solutions reserves the right to take possession of the Equipment at any time and without notice to the Client when, in HMC Group Solutions’s opinion, the Equipment is endangered or imperilled by any reason or cause whatsoever. The Client indemnifies HMC Group Solutions in respect of any loss arising from any act done under or by virtue of this clause 7.3. Any action taken by either HMC Group Solutions or the Client as set forth herein shall be without prejudice to any other rights or remedies that HMC Group Solutions or Client may have respectively. 

7.4 Off-hire receipts will only be issued when the Equipment has been either collected by HMC Group Solutions, or returned to HMC Group Solutions’s premises. 

8. Extension of the Hire Period 

8.1 If, and only if not later than one (1) month before the expiry of the Hire Period, the Client gives notice to HMC Group Solutions requesting an extension of the Hire Period, such extension is, if any, subject to HMC Group Solutions’s agreement, the availability of the Equipment and the following conditions: 

(a) the Charges and all other payments due under this Contract having been received by HMC Group Solutions in full as at the expiry of the Hire Period; 

(b) there is no breach of the Client’s covenants, the Hire Period shall be extended for the period specified between the parties, commencing on the day following the date of expiration of the Hire Period and at the Charges, as varied, on the same terms and conditions of this Contract, except for the insertion of the extended term. 

9. Delivery and Recovery 

9.1 As agreed by HMC Group Solutions and at HMC Group Solutions’s sole discretion:

(a) delivery of the Equipment (“Delivery”) shall take place when shall take place when the Client takes possession of the Equipment at either HMC Group Solutions’s premises or the Site;

(b) recovery of the Equipment (“Recovery”) will be completed when the Equipment has been either collected from the Site and/or returned to 
HMC Group Solutions’s premises. 

9.2 Unless otherwise specified: 

(a) the costs of Delivery and Recovery, including the supply of additional labour, equipment, materials and transportation expenses and other requirements are in addition to the Charges. 

(b) Client is responsible for the supply of all necessary labour and other handling equipment to offload and load the Equipment at the Site. 

9.3 HMC Group Solutions may deliver the Equipment by separate instalments. Each separate instalment shall be invoiced and paid for in accordance with the provisions in these terms and conditions. 

9.4 In the event the Client is unable to accept Delivery and/or Recovery as arranged, or there are any delays due to free and clear access to the site not being available, HMC Group Solutions shall be entitled to charge all additional costs involved with the redelivery and/or storage, or subsequent attempts at Recovery, as applicable, and all Charges lost as a direct result of the Equipment being unavailable. 

9.5 Any time or date given by HMC Group Solutions to the Client is an estimate only. The Client must still accept Delivery even if late and HMC Group Solutions will not be liable for any loss or damage incurred by the Client as a result of any delay in Delivery and/or Recovery of the Equipment, commencement of work or interruption to the continuity of work due to reasons beyond the practical control of HMC Group Solutions (including, but not limited to, any event outlined in clause 27.8, breakdown of plant, transport delays, accidents, or other labour difficulties, etc.). 

10. Access and Inspection 

10.1 The Client must upon being given reasonable notice by HMC Group Solutions, use its best endeavours to procure that HMC Group Solutions and its representatives gain entry to the Site to inspect, maintain and/or repair the Equipment or to repossess the Equipment. 

11. Loss, Theft, and Damage Waiver 

11.1 Notwithstanding clause 11.8 the Client hires the Equipment at the Client’s own risk and indemnifies HMC Group Solutions against any and all loss in respect of or damage to the Equipment, including any consequential loss, unless the Client pays the LTD Waiver Fee, subject to this clause 11. 

11.2 LTD Waiver is not insurance, but is an agreement by HMC Group Solutions that the Client’s liability for damage to the Equipment can be limited in some circumstances only, to an amount called the LTD Waiver Fee. The amount payable is 10% on top of the base hire rate. The Client is not entering into a contract of insurance with HMC Group Solutions by paying for the LTD Waiver Fee. 

11.3 Upon payment by the Client of the optional LTD Waiver Fee subject to clause 11.5, HMC Group Solutions shall be responsible for the cost of repairs or replacement of the Equipment due to damage occurring during the Hire Term, subject to any excess payable by HMC Group Solutions, if;

(a) for theft, the Client has promptly reported the incident to the police and provided HMC Group Solutions with a written police report; 

(b) the Client has co-operated with HMC Group Solutions and provided HMC Group Solutions with the details of the incident, including any written or photographic evidence HMC Group Solutions require. 

11.4 The LTD Waiver Fee for each item of Equipment is the amount calculated as follows:

(a) Replacement: 

(i) Subject to clause 11.4 (b) the LTD Waiver Fee for each item of Equipment that is lost, stolen or damaged beyond repair will be the amount equal to the greater of:

(a) five hundred dollars ($500.00); or

(b) ten percent (10%) of the New Replacement Cost;

(b) where the New Replacement Cost is less than five hundred dollars ($500.00), the LTD Waiver Fee will be an amount equal to the New Replacement Cost.

(c) Repair: 

(i) Subject to clause11.4(d), the LTD Waiver Fee for each item of Equipment that is partially damaged and can be repaired will be the amount equal to the greater of:

(a) five hundred dollars ($500.00); or 

(b) ten percent (10%) of the repair cost; 

(d) where the repair cost of the Equipment is less than five hundred dollars ($500.00), the LTD Waiver Fee will be an amount equal to the lesser of the repair cost and the New Replacement Cost. 

11.5 This clause:

(a) in no way entitles the Client to, or implies the availability of, compensation from HMC Group Solutions of any liability incurred by the Client in relation to the use of the Equipment; 

(b) will not continue to operate after the Expiry Date, unless an extension of the Hire Term has been granted by HMC Group Solutions in writing, and 
an additional agreed fee is paid by the Client; and

(c) will not apply to loss or damage which relates to, or arises from:

(i) breach of any statutory laws or regulations in connection with the use of the Equipment by HMC Group Solutions; or 

(ii) misuse, abuse, wilful and/or malicious acts negligent and/or reckless use and/or overloading of the Equipment; or 

(iii) damage to motors or other electrical Equipment or components within the Equipment caused by an electrical overload, surge in electrical current or the use of under-rated or excessive lengths of extension leads with the electrical Equipment; or 

(iv) theft, loss or damage (including vandalism) by whatever cause to accessories supplied with the Equipment (including, but not limited to, manuals, user guides, batteries, cables); or 

(v) has been caused by collision with a bridge, carpark, awning, gutter, tree or any other overhead structure or object due to insufficient clearance; or 

(vi) the Equipment being in an unsafe or un-roadworthy condition that arose during the course of the Hire and that caused or contributed to the damage or loss, and the Client or driver was aware of or ought to have been aware of the unsafe or un-roadworthy condition 
of the Equipment; or 

(vii) where the Client is not a company or government department and the Equipment is driven by any person other than the Client and any other person named on the front of this Contract; or 

(viii) where the Equipment is wilfully or recklessly damaged either by the Client, or any other person named on the front of this form, or any person driving the Equipment under the authority of the Client; or 

(ix) lack of appropriate storing or non-adherence to other normal maintenance requirements(including lack of lubrication) or a failure to properly service or maintain the Equipment that could reasonably be expected of the Client under this Contract; or 

(x) disregard for instructions given to the Client by HMC Group Solutions in respect of the proper use of the Equipment or in contradiction of the manufacturer’s instructions if supplied with the Equipment upon commencement of the Hire Term; or 

(xi) unexplained disappearance of the Equipment; or 

(xii) theft of the Equipment in circumstances where site security is available (including, but not limited to, locked yards, buildings and sheds), where proper security is not used by the Client to secure the Equipment whilst it is left unattended; 

(xiii) any tyre or tubes damage not attributable to normal wear and tear; or 

(xiv) windscreens, mirrors, glass or Perspex; or 

(xv) damage to the Equipment, or to any third party property, cause by the Client using, or permitting the Equipment to be used, in any area prohibited by this Contract; or 

(xvi) any water damage to Equipment or any underbody damage, and any resulting damage thereof, to the Equipment, whilst it is located, used, loaded, unloaded, transported on or over water, wharves, bridges or vessels of any kind; or

(xvii) exposure to any corrosive or caustic substance, such as cyanide, saltwater, acid, etc. 

11.6 Where clause 11.3 is not affected the Client accepts full responsibility for the safekeeping of the Equipment and must effect insurance (and maintain any such insurance) with an insurer acceptable to HMC Group Solutions in the name of HMC Group Solutions and the Client for their respective rights and interests whilst the Equipment is at the Site, or in transit between the Site and HMC Group Solutions’s premises in respect of the following: 

(a) the full replacement value of the Equipment against such risk as HMC Group Solutions may nominate, or in the absence of such nomination, against loss or damage by theft, fire, accident and such other risks as are insured against by prudent persons engaged in a similar business to that of the Client, excluding liability for claims being the subject of compulsory third party injury insurance on vehicles registered by HMC Group Solutions; 

(b) a policy of employer’s indemnity insurance and works compensation insurance in respect of all employees of the Client in respect of damage or loss caused by the use, maintenance, repair and storage of the Equipment; 

(c) public risk liability (at least 20 million) and product defect liability, and any other such insurance in support of the indemnities contained in this Contract, and must in respect of any policy of insurance, deliver to HMC Group Solutions a certificate of currency of the policy and promptly pay all premiums and stamp duty payable in respect of the policy. 

11.7 HMC Group Solutions will maintain current insurance policies in respect of the Equipment to its full insurable value. 

11.8 In the event that the Equipment provided by HMC Group Solutions is the subject of an insurance claim made by HMC Group Solutions, as a result of any action or inaction of the Client, then the Client accepts full liability for the value of Equipment (or part thereof) that is lost, stolen or damaged in any way any during the entire hire term, irrespective of whether the insurance claim is successful. 

12. Risk 

12.1 The Client shall assume all risks and liabilities for and in respect of the Equipment and for injuries to or death of persons and damage to property howsoever arising from the possession, use, maintenance, repair or storage of the Equipment. 

12.2 The Client shall be solely responsible for any loss or damage to the Equipment, including (without limiting the generality of the foregoing) damage done by corrosion, rust, oxidation, and chemical reactions of every nature and kind whatsoever. 

12.3 The Client acknowledges and agrees that:

(a) the Client has satisfied themselves as to the condition and suitability of the Equipment, and its fitness for the Client’s purposes; 

(b) the Client has, prior to signing this Contract, examined the Equipment and satisfied themselves as to its compliance with the specifications 
and validity of the warranties of the manufacturer or HMC Group Solutions;

(c) once satisfied with the condition and suitability of the Equipment, the Client must sign HMC Group Solutions’s pre-hire check sheet. 

13. Title 

13.1 The Equipment is and will at all times remain the absolute property of HMC Group Solutions, and the Client must return the Equipment to HMC Group Solutions upon request to do so. 

13.2 The Client must not, and must not attempt to, assign, mortgage, pledge, sell, charge, encumber, sublet, part with possession of, grant any lien, license or other encumbrance over, or otherwise dispose of or deal with, or permit or suffer to exist any lien or other encumbrance over, the Equipment or any part thereof, or any of the rights of the Client to the Equipment, or any of the rights of the Client under this Contract, and must keep the Equipment free from any distress, execution or other legal process. 

13.3 Nothing contained in this Contract renders on the Client any right or property or interest in the Equipment other than as a hirer. 

13.4 The Client must notify all persons who come in contact with the Equipment, including those who have an interest in the Services being undertaken, of the existence on the restriction on the creation of liens, or similar interests, whether by way of pledge or otherwise, in or over 
the Equipment, and will notify any persons seizing the Equipment or any part thereof of the restrictions contained in this clause 13.4. 

14. Condition of Equipment and Inspections 

14.1 The Equipment will be inspected by a representative of each party to establish the general condition thereof and a statement of condition of the Equipment will be prepared:

(a) immediately prior to the commencement of this Contract; and

(b) as soon as practicable following termination of this Contract. 

14.2 The Client acknowledges and agrees that they will, at their own cost, reinstate the Equipment to its condition as specified in the pre-hire inspection, normal wear and tear excepted. 

15. Wet Hire 

15.1 Unless otherwise agreed to in writing between the parties, HMC Group Solutions shall not be deemed the principal contractor and shall not be obligated to maintain any contract works insurance cover or be responsible with regard to any work cover requirements (including, but not limited to, compliancy under any relevant legislation or policy, etc.). 

15.2 The Client shall:

(a) be responsible for ensuring that HMC Group Solutions is notified of the location of any underground services on the Site; and 

(b) provide amenities and first aid services to HMC Group Solutions’s employees in compliance with all applicable work health and safety legislation in operation in the state where the services are undertaken; and 

(c) should it be necessary for the Equipment to be towed in, or out of the Site, then the Client shall be responsible for all damage and/or salvage costs involving the Equipment, and said costs shall be in addition to the Charges and either:

(i) charged to the Client’s account, plus a margin of ten percent (10%); or

(ii) payable direct to the salvage company by the Client. 

(d) provide adequate security for any Equipment left at the Site overnight or during periods when the Site is left unattended, unless it has been otherwise agreed in writing that HMC Group Solutions arrange such security on the Client’s behalf. 

15.3 HMC Group Solutions reserves the right not to enter the Site if HMC Group Solutions believes it unsafe, and the Client shall remain liable for the Charges payable until the issue is resolved. 

15.4 Notwithstanding that the operator of the Equipment shall at all times remain an employee or representative of HMC Group Solutions and the operator shall operate the Equipment in accordance with the instructions of the Client, and accordingly, the Client shall be liable for all responsibility and costs incurred as a result of the actions of the operator whilst following the Client’s instructions. 

15.5 In the event the Client requires an employee of HMC Group Solutions to undertake a recognised safety course or medical examination during working hours, the Client will be liable to pay the hourly hire Charges for that period, notwithstanding that the Equipment is not being operated during such time. If any course is undertaken outside of the Term then the Client shall be liable to pay HMC Group Solutions’s standard (and/or overtime, if applicable) hourly labour rate. 

16. Dry Hire 

16.1 The Client shall ensure that the Equipment is operated by a properly experienced and qualified person in accordance with HMC Group Solutions’s and manufacturer’s requirements and/or recommendations. 

17. HMC Group Solutions’s Employees 

17.1 The Client agrees not to employ, contract, subcontract or utilise in any way an employee or past employee of HMC Group Solutions (other than through HMC Group Solutions) for a period of no less than twelve (12) months after that employee’s last employment with HMC Group Solutions. 

17.2 The Client agrees that if clause 17.1 is contravened HMC Group Solutions will be able to invoice the Client at its current hourly rate the hours that the employee has been employed, contracted, subcontracted or utilised in any way by the Client and agrees to pay said invoice in accordance with the standard payment terms contained in this Contract. 

18. Compliance with Laws 

18.1 The Client and HMC Group Solutions shall comply with the provisions of all statutes, regulations and bylaws of government, local and other public authorities that may be applicable to the Services, including any SafeWork codes of practice or work health and safety laws (WHS) relating to construction sites and any other relevant safety standards or legislation, particularly those in relation to asbestos and/or other hazardous materials (and the safe removal and disposal of the same). The Client agrees to indemnify HMC Group Solutions against all claims arising from health issues related to exposure to asbestos on Site. 

18.2 The Client shall obtain (at the expense of the Client) all licenses and approvals or notices (including local Government approvals) that may be required in relation to use or transport of the hire Equipment. 

19. Personal Property Securities Act 2009 (“PPSA”) 

19.1 In this clause financing statement, financing change statement, security agreement, and security interest has the meaning given to it by the PPSA. 

19.2 Upon assenting to these terms and conditions in writing the Client acknowledges and agrees that these terms and conditions constitute a security agreement for the purposes of the PPSA and creates a security interest in all Equipment that has previously been supplied and that will be supplied in the future by HMC Group Solutions to the Client. 

19.3 The Client undertakes to:

(a) promptly sign any further documents and/or provide any further information (such information to be complete, accurate and up-to-date in all respects) which HMC Group Solutions may reasonably require to:

(i) register a financing statement or financing change statement in relation to a security interest on the PPSR;

(ii) register any other document required to be registered by the PPSA; or

(iii) correct a defect in a statement referred to in clause 19.3(a)(i) or 19.3(a)(ii); 

(b) indemnify, and upon demand reimburse, HMC Group Solutions for all expenses incurred in registering a financing statement or financing change statement on the PPSR established by the PPSA or releasing any Equipment charged thereby;

(c) not register a financing change statement in respect of a security interest without the prior written consent of HMC Group Solutions; 

(d) not 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 HMC Group Solutions. 

19.4 HMC Group Solutions and the Client agree that sections 96, 115 and 125 of the PPSA do not apply to the security agreement created by these terms and conditions. 

19.5 The Client waives their rights to receive notices under sections 95, 118, 121(4), 130, 132(3)(d) and 132(4) of the PPSA. 

19.6 The Client waives their rights as a grantor and/or a debtor under sections 142 and 143 of the PPSA. 

19.7 Unless otherwise agreed to in writing by HMC Group Solutions, the Client waives their right to receive a verification statement in accordance with section 157 of the PPSA. 

19.8 The Client must unconditionally ratify any actions taken by HMC Group Solutions under clauses 19.3 to 19.5. 

19.9 Subject to any express provisions to the contrary (including those contained in this clause 14), nothing in these terms and conditions is intended to have the effect of contracting out of any of the provisions the PPSA. 

19.10 Only to the extent that the hire of the Equipment exceeds a two (2) year hire period with the right of renewal shall clause 14 apply as a security agreement in the form of a PPS Lease in respect of Section 20 of the PPSA, in all other matters this clause 14 will apply generally for the purposes of the PPSA. 

20. Security and Charge 

20.1 In consideration of HMC Group Solutions agreeing to supply Equipment, the Client charges all of its rights, title and interest (whether joint or several) in any land, realty or other assets capable of being charged, owned by the Client either now or in the future, to secure the performance by the Client of its obligations under these terms and conditions (including, but not limited to, the payment of any money). 

20.2 The Client indemnifies HMC Group Solutions from and against all HMC Group Solutions’s costs and disbursements including legal costs on a solicitor and own client basis incurred in exercising HMC Group Solutions’s rights under this clause. 

20.3 The Client irrevocably appoints HMC Group Solutions and each director of HMC Group Solutions as the Client’s true and lawful attorney/s to perform all necessary acts to give effect to the provisions of this clause 20 including, but not limited to, signing any document on the Client’s behalf. 

21. Defects, Warranties and Returns, Competition and Consumer Act 2010 (CCA) 

21.1 All conditions and warranties, express or implied, whether arising by statute or otherwise, as to the condition, suitability, quality, fitness for any purpose or safety of or title to the Equipment are hereby negative and excluded to the full extent permitted by the law, and HMC Group Solutions gives no such warranty or condition, and the Client acknowledges that HMC Group Solutions has not given any such warranty or condition. 

21.2 The terms of this Contract that exclude or limit HMC Group Solutions’s liability shall apply only to the extent permitted by law, and subject to the provisions of the Competition and Consumer Act 2010 and other statutes from time to time in force which cannot be excluded, restricted or modified, or which can only be excluded, restricted or modified to a limited extent, and if any such statutes apply to this Contract, then to the extent to which HMC Group Solutions is entitled to do so, HMC Group Solutions’s liability under such statutes shall be limited at HMC Group Solutions’s absolute option to:

(a) the replacement of the Equipment or the supply of plant similar to the Equipment; or

(b) the payment of the cost of having the Equipment repaired; or

(c) the repair of the Equipment; and

(d) Hire Charges will be suspended in full until the Equipment is replaced (at HMC Group Solutions’s discretion) or returned to operating condition. 

21.3 Notwithstanding clauses 21.1 to 21.2 but subject to the CCA, HMC Group Solutions shall not be liable for any defect or damage which may be caused or partly caused by, or arise as a result of:

(a) the Client failing to properly maintain or store any Equipment; 

(b) the Client interfering with the Equipment in any way without HMC Group Solutions’s written approval to do so; 

(c) the Client using the Equipment for any purpose other than that for which it was designed; 

(d) the Client continuing the use of the Equipment after any defect became apparent or should have become apparent to a reasonably 
prudent operator or user; 

(e) the Client failing to follow any instructions or guidelines provided by HMC Group Solutions; 

(f) fair wear and tear, any accident, or act of God. 

22. Limitation of Liability 

22.1 Subject to clause 21: 

(a) HMC Group Solutions shall be under no liability whatsoever to the Client for any indirect and/or consequential loss and/or expense (including loss of profit or any rectification costs), or any third party claims, suffered by the Client in connection with the use of the Equipment and/or the provision of Services by HMC Group Solutions, or arising out of a breach by HMC Group Solutions of these terms and conditions. Alternatively, HMC Group Solutions’s liability shall be limited to damages which under no circumstances shall exceed the Charges; 

(b) the Client acknowledges and agrees that HMC Group Solutions is not liable:

(i) to the Client for any loss, cost (whether indirect or consequential) or damage or delay through breakdown, mechanical defect or 
accident to or of the Equipment;

(ii) to any person for any loss or damage to any property stolen from the Equipment or damaged or otherwise lost during the Hire Period 
or left in the Equipment after return of the Equipment to HMC Group Solutions’s depot;

(iii) to the Client for any form of breakdown, whether mechanical electrical or structural to the Equipment whilst on hire to the Client. 

22.2 The Client assumes liability for an indemnifies and holds harmless HMC Group Solutions, its agents and employees from and against all claims, costs, damages, losses or expenses of any kind howsoever, arising under tot (including but not limited, negligence), contract, strict liability, statue or otherwise from the arrangements between the Client and HMC Group Solutions and including (without limitation) in relation to death of or injury to any person, loss, damage or destruction of any property including the Equipment and any goods in transit. This indemnity shall not include the Equipment. 

22.3 To the full extent permitted by law, the Client releases, holds harmless and discharges HMC Group Solutions, its agents and employees in respect of all claims and demands on HMC Group Solutions and any loss or damage caused to the Client or its agents. 

23. Default and Consequences of Default 

23.1 Interest on overdue invoices shall accrue daily from the date when payment becomes due, until the date of payment, at a rate of two and one half percent (2.5%) per calendar month (and at HMC Group Solutions’s sole discretion such interest shall compound monthly at such a rate) after as well as before any judgment. 

23.2 If the Client owes HMC Group Solutions any money the Client shall indemnify HMC Group Solutions from and against all costs and disbursements incurred by HMC Group Solutions in recovering the debt (including but not limited to internal administration fees, legal costs on a solicitor and own client basis, HMC Group Solutions’s contract default fee, and bank dishonour fees). 

23.3 Further to any other rights or remedies HMC Group Solutions may have under this Contract, if the Client has made payment to HMC Group Solutions, and the transaction is subsequently reversed, the Client shall be liable for the amount of the reversed transaction, in addition to any further costs incurred by HMC Group Solutions under this clause 23 where it can be proven that such reversal is found to be illegal, fraudulent or in contravention to the Client’s obligations under this Contract. 

23.4 Without prejudice to HMC Group Solutions’s other remedies at law HMC Group Solutions shall be entitled to cancel all or any part of any order of the Client which remains unperformed and all amounts owing to HMC Group Solutions shall, whether or not due for payment, become immediately payable in the event that:

(a) any money payable to HMC Group Solutions becomes overdue, or in HMC Group Solutions’s opinion the Client will be unable to meet its payments as they fall due; or

(b) the Client has exceeded any applicable credit limit provided by HMC Group Solutions;

(c) the Client becomes insolvent, convenes a meeting with its creditors or proposes or enters into an arrangement with creditors, or makes an assignment for the benefit of its creditors; or

(d) a receiver, manager, liquidator (provisional or otherwise) or similar person is appointed in respect of the Client or any asset of the Client. 

24. Cancellation 

24.1 Without prejudice to any other remedies HMC Group Solutions may have, if at any time the Client is in breach of any obligation (including those relating to payment) under these terms and conditions, HMC Group Solutions may suspend or terminate the supply of Equipment to the Client and any of its other obligations under the terms and conditions. HMC Group Solutions will not be liable to the Client for any loss or damage the Client suffers because HMC Group Solutions has exercised its rights under this clause. 

24.2 HMC Group Solutions may cancel these terms and conditions or cancel Delivery of Equipment at any time before the Equipment is delivered by giving written notice to the Client. On giving such notice HMC Group Solutions shall repay to the Client any sums paid in respect of the Charges. HMC Group Solutions shall not be liable for any loss or damage whatsoever arising from such cancellation. 

24.3 In the event that the Client terminates this Contract, or otherwise cancels Delivery, the Client:

(a) must provide notice of such to HMC Group Solutions at least twenty-four (24) hours prior to the specified date of Delivery; and

(b) the Client shall be liable for any and all loss incurred (whether direct or indirect) by HMC Group Solutions as a direct result of the cancellation (including, but not limited to, any loss of profits). 

24.4 Except so far as clause 24.1 applies, on termination HMC Group Solutions shall be entitled to:

(a) retain all monies paid to it under this Contract; and

(b) recover from the Client any other monies due and owing under this Contract as at the date of termination. 

24.5 On termination, the Client must deliver up to HMC Group Solutions the Equipment (together with all parts and accessories) in clean and good order as delivered (with allowance for fair wear and tear). 

24.6 Upon termination of this Contract following the occurrence of an Default Event, the Client must pay to HMC Group Solutions by way of liquidated damages, in addition to and without prejudice to any other right or remedy of HMC Group Solutions, an amount equal to the total of:

(a) the unpaid balance of the Charges for the Hire Period which would have been payable until the expiration of the Hire Period had the Contract not been terminated;

(b) HMC Group Solutions’s costs and expenses incurred in repossessing and storing, insuring and registering the Equipment and in entering on and removing the Equipment from land or premises on which the Equipment was situated, and make good any injury or damage caused to the land or premises; 

(c) HMC Group Solutions’s costs and expenses of repairs reasonably necessary to bring the Equipment to an operational/useable condition; 

(d) interest calculated in accordance with clause 23.1 of this Contract. 

24.7 On, or before, termination of this Contract, the Client shall return the Equipment to HMC Group Solutions’s premises and the Client acknowledges and agrees that the Charges are payable:

(a) until such time as the Equipment is returned to HMC Group Solutions’s premises and returned to its condition as specified in the on-hire inspection, normal wear and tear excepted; and

(b) for the entirety of the Hire Period, notwithstanding that the Equipment may be returned to HMC Group Solutions prior to termination. 

25. Privacy

25.1 All emails, documents, images or other recorded information held or used by HMC Group Solutions is Personal Information, as defined and referred to in clause 25.3, and therefore considered Confidential Information. HMC Group Solutions acknowledges its obligation in relation to the handling, use, disclosure and processing of Personal Information pursuant to the Privacy Act 1988 (“the Act”) including the Part IIIC of the Act being Privacy Amendment (Notifiable Data Breaches) Act 2017 (NDB) and any statutory requirements, where relevant in a European Economic Area (“EEA”), under the EU Data Privacy Laws (including the General Data Protection Regulation “GDPR”) (collectively, “EU Data Privacy Laws”). HMC Group Solutions acknowledges that in the event it becomes aware of any data breaches and/or disclosure of the Clients Personal Information, held by HMC Group Solutions that may result in serious harm to the Client, HMC Group Solutions will notify the Client in accordance with the Act and/or the GDPR. Any release of such Personal Information must be in accordance with the Act and the GDPR (where relevant) and must be approved by the Client by written consent, unless subject to an operation of law. 

25.2 Notwithstanding clause 25.1, privacy limitations will extend to HMC Group Solutions in respect of Cookies where transactions for purchases/orders transpire directly from HMC Group Solutions’s website. HMC Group Solutions agrees to display reference to such Cookies and/or similar tracking technologies, such as pixels and web beacons (if applicable), such technology allows the collection of Personal Information such as the Client’s:

(a) IP address, browser, email client type and other similar details; 

(b) tracking website usage and traffic; and

(c) reports are available to HMC Group Solutions when HMC Group Solutions sends an email to the Client, so HMC Group Solutions may collect and review that information (“collectively Personal Information”)

In order to enable / disable the collection of Personal Information by way of Cookies, the Client shall have the right to enable / disable the Cookies first by selecting the option to enable / disable, provided on the website prior to proceeding with a purchase/order via HMC Group Solutions’s website.

25.3 The Client agrees for HMC Group Solutions to obtain from a credit reporting body (CRB) a credit report containing personal credit information (e.g. name, address, D.O.B, occupation, driver’s license details, electronic contact (email, Facebook or Twitter details), medical insurance details or next of kin and other contact information (where applicable), previous credit applications, credit history) about the Client in relation to credit provided by HMC Group Solutions.

25.4 The Client agrees that HMC Group Solutions may exchange information about the Client with those credit providers and with related body corporates for the following purposes:

(a) to assess an application by the Client; and/or 

(b) to notify other credit providers of a default by the Client; and/or 

(c) to exchange information with other credit providers as to the status of this credit account, where the Client is in default with other credit providers; and/or 

(d) to assess the creditworthiness of the Client including the Client’s repayment history in the preceding two (2) years. 

25.5 The Client consents to HMC Group Solutions being given a consumer credit report to collect overdue payment on commercial credit. 

25.6 The Client agrees that personal credit information provided may be used and retained by HMC Group Solutions for the following purposes (and for other agreed purposes or required by):

(a) the provision of Equipment; and/or

(b) analysing, verifying and/or checking the Client’s credit, payment and/or status in relation to the provision of Equipment; and/or

(c) processing of any payment instructions, direct debit facilities and/or credit facilities requested by the Client; and/or

(d) enabling the collection of amounts outstanding in relation to the Equipment. 

25.7 HMC Group Solutions may give information about the Client to a CRB for the following purposes:

(a) to obtain a consumer credit report;

(b) allow the CRB to create or maintain a credit information file about the Client, including credit history. 

25.8 The information given to the CRB may include:

(a) Personal Information as outlined in 25.3 above;

(b) name of the credit provider and that HMC Group Solutions is a current credit provider to the Client; 

(c) whether the credit provider is a licensee; 

(d) type of consumer credit; 

(e) details concerning the Client’s application for credit or commercial credit (e.g. date of commencement/termination of the credit account and the amount requested); 

(f) advice of consumer credit defaults, overdue accounts, loan repayments or outstanding monies which are overdue by more than sixty (60) days and for which written notice for request of payment has been made and debt recovery action commenced or alternatively that the Client no longer has any overdue accounts and HMC Group Solutions has been paid or otherwise discharged and all details surrounding that discharge (e.g. dates of payments);

(g) information that, in the opinion of HMC Group Solutions, the Client has committed a serious credit infringement; 

(h) advice that the amount of the Client’s overdue payment is equal to or more than one hundred and fifty dollars ($150). 

25.9 The Client shall have the right to request (by e-mail) from HMC Group Solutions:

(a) a copy of the Personal Information about the Client retained by HMC Group Solutions and the right to request that HMC Group Solutions correct any incorrect Personal Information; and 

(b) that HMC Group Solutions does not disclose any Personal Information about the Client for the purpose of direct marketing. 

25.10 HMC Group Solutions will destroy Personal Information upon the Client’s request (by e-mail) or if it is no longer required unless it is required in order to fulfil the obligations of this Contract or is required to be maintained and/or stored in accordance with the law. 

25.11 The Client can make a privacy complaint by contacting HMC Group Solutions via e-mail. HMC Group Solutions will respond to that complaint within seven (7) days of receipt and will take all reasonable steps to make a decision as to the complaint within thirty (30) days of receipt of the complaint. In the event that the Client is not satisfied with the resolution provided, the Client can make a complaint to the Information Commissioner at www.oaic.gov.au. 

26. Building and Construction Industry Security of Payments Act 1999 

26.1 At HMC Group Solutions’s sole discretion, if there are any disputes or claims for unpaid Equipment hire and/or Services then the provisions of the Building and Construction Industry Security of Payments Act 1999 may apply. 

26.2 Nothing in this Contract is intended to have the effect of contracting out of any applicable provisions of the Building and Construction Industry Security of Payments Act 1999 of New South Wales, except to the extent permitted by the Act where applicable. 

27. General 

27.1 Any dispute or difference arising as to the interpretation of these terms and conditions or as to any matter arising hereunder, shall be submitted to, and settled by, either arbitration in accordance with the Commercial Arbitration Act 2010 or its replacement(s) or the relevant governing agency for the state in which the Equipment was provided and/or the Services were performed such as the New South Wales Civil & Administration Tribunal (NCAT). 

27.2 The failure by either party to enforce any provision of these terms and conditions shall not be treated as a waiver of that provision, nor shall it affect that party’s right to subsequently enforce that provision. If any provision of these terms and conditions shall be invalid, void, illegal or unenforceable the validity, existence, legality and enforceability of the remaining provisions shall not be affected, prejudiced or impaired. 

27.3 These terms and conditions and any contract to which they apply shall be governed by the laws of New South Wales, the state in which HMC Group Solutions has its principal place of business, and are subject to the jurisdiction of the Albury Local Court of New South Wales. 

27.4 HMC Group Solutions may licence and/or assign all or any part of its rights and/or obligations under this Contract without the Client’s consent. 

27.5 The Client cannot assign or licence without the written approval of HMC Group Solutions. 

27.6 HMC Group Solutions may elect to subcontract out any part of the provision services but shall not be relieved from any liability or obligation under this Contract by so doing. Furthermore, the Client agrees and understands that they have no authority to give any instruction to any of HMC Group Solutions’s sub-contractors without the authority of HMC Group Solutions. 

27.7 The Client agrees that HMC Group Solutions may amend their general terms and conditions for subsequent future contracts with the Client by disclosing such to the Client in writing. These changes shall be deemed to take effect from the date on which the Client accepts such changes, or otherwise at such time as the Client makes a further request for HMC Group Solutions to provide Equipment on hire to the Client. 

27.8 Neither party shall be liable for any default due to any act of God, war, terrorism, strike, lock-out, industrial action, fire, flood, storm or other event beyond the reasonable control of either party. 

27.9 Both parties warrant that they have the power to enter into this Contract and have obtained all necessary authorisations to allow them to do so, they are not insolvent and that this Contract creates binding and valid legal obligations on them.



Authorised by:

Harrison McMahon

Managing Director

HMC Group Solutions

V1.0 03/2022