Terms & Conditions

METRO SCAFFOLD HIRE PTY LTD

(ABN 34 103 093 456)

1. Agreement

• The terms and conditions of this Agreement comprise the entire agreement between the Customer and the Owner (unless varied in accordance with clause 12 below). No additional terms and conditions, including any terms that may be contained in documents or otherwise agreed whether in writing or orally between the Customer and the Owner, form part of this Agreement.

2. Definitions

• In this Agreement unless the context otherwise requires:
• “Agreement” means this agreement between the Owner and the Customer for hire of the Hired Equipment, the provision of Labour and the provision of Cartage (as the case may be).
• “Cartage” means the transportation of the Hired Equipment to and from site.
• “Cartage Charges” means the charges for the Cartage.
• “Charges” means the Cartage Charges, the Labour Charges and the Hire Charges (or any one or more of them as the case may be) contained either in the Owner’s list of standard prices, the Owner’s quotation to the Customer or the Owner’s invoices to the Customer. In the event that Cartage Charges, Labour Charges and Hire Charges (or any one or more of them as the case may be) are contained in the Owner’s invoices to the Customer, then those charges shall be deemed not only to form part of this Agreement but also to have been agreed by the Customer.
• “Claim” means any allegation, debt, cause of action, Liability, claim, proceedings, suit or demand of any nature whatsoever and howsoever arising and whether present or future, fixed or unascertained, actual or contingent and whether at law, in equity, pursuant to statute or otherwise;
• “Credit Account” means any billing arrangement the Owner has extended to the Customer that has been previously approved by the Owner.
• “Customer” means any person, company, corporation, trustee, statutory authority or body corporate (or employee, agent or representative with apparent or actual authority, as the case may be) that enters into this Agreement.
• “Hire Charges” means the hire charges for the Hired Equipment, calculated on a daily basis.
• “Hired Equipment” means any and all equipment hired by the Customer from the Owner pursuant to this Agreement.
• “Hire Period” means the period of time that commences when either the Customer takes possession of the Hired Equipment or the Owner delivers to the Customer the Hired Equipment and ends when the Owner retakes control and possession of the Hired Equipment, both days of which are to be included in calculation of the Hire Period.
• “Labour” means the supply by the Owner to the Customer of persons to erect, modify and dismantle the Hired Equipment.
• “Labour Charges” means the charges for the Labour.
• “Liability” means any liability or obligation (whether actual, contingent or prospective), including for any Loss irrespective of when the acts, events or things gave rise to the liability occurred including liability for any direct, consequential or indirect losses, economic losses or loss or profits.
• “Loss” means any and all damage, loss, cost and expense (including legal costs and expenses of whatsoever nature or description) including any liability for consequential or indirect losses, economic losses or loss of profits.
• “Owner” means Metro Scaffold Hire Pty Ltd (ACN 103 093 456) trading as Metro Scaffold Hire.
• “Return Date” is the date identified on the Owner’s invoice as being the date on which the Hired Equipment must be returned (where applicable).

3. Charges

• 3.1 The Customer must pay to the Owner the Charges without any deduction or setoff.
• 3.2 The Charges may be revised by the Owner after the commencement of the Hire Period and the Owner has the right to invoice the Customer at the revised Charges if, and only if, the Owner first provides to the Customer written notice of the revised Charges no less than 28 days before any such invoice is rendered.  If no such notice is provided, the Charges before revision apply and are required to be paid by the Hirer in accordance with clause 4 below.
• 3.3 In addition to the Charges, the Customer agrees to pay without any deduction or setoff:
  • (a) charges for cleaning, reconditioning, renewing or replacing the Hired Equipment where considered necessary by the Owner; and
  • (b) any applicable levies, fines, penalties and other government charges arising from the Customer’s use of the Hired Equipment.

4. Payment

• 4.1 For any Customer with a Credit Account, that Customer must pay all Charges and any other amounts payable pursuant to this Agreement without deduction or setoff within 30 days of the date of the Owner’s invoice.
• 4.2 For any Customer without a Credit Account, the Customer must:
  • (a) obtain two trade references to be provided to the Owner before commencement of the Hire Period;
  • (b) if the references are satisfactory to the Owner, the terms of payment are as set out in clause 4.1;
  • (c) if the references are not satisfactory to the Owner, cash before delivery or possession.
• 4.3 If a Customer without a Credit Account requires delivery of the Hired Equipment before references can be provided, the Customer will pay without deduction or setoff:
  • (a) the Charges quoted by the Owner immediately before the Hire Period commences; and
  • (b) any additional charges pursuant to clause 3.3 within 10 business days after the end of the Hire Period.
• 4.4 If the Customer does not pay any invoice rendered by the Owner in full by the payment due date, the Owner may, in its absolute discretion:
  • (a) charge, in addition to any other Charges or costs payable under this Agreement:
    • (i) interest, calculated daily on the total outstanding balance, at a rate of 10% per annum;
    • (ii) all costs and expenses incurred by the Owner in recovering any unpaid amounts from the Customer or other third party under this Agreement, including legal costs on a full indemnity basis,

    and the Customer hereby agrees to pay such additional charges, costs and expenses without setoff or counterclaim.

  • (b) suspend the provision of any Labour or Cartage until payment of the outstanding invoice.
  • (c) terminate this Agreement upon giving 48 hours prior written notice.

5. Delivery, risk, use and return of Hired Equipment

• 5.1 If the Customer does not require the Owner to provide Cartage, the Customer is responsible for the taking possession of the Hired Equipment from the Owner’s premises and the delivery of the Hired Equipment to site.
• 5.2 Risk in the Hired Equipment shall pass to the Customer upon delivery by the Owner to the Customer’s work site or collection by the Customer of the Hired Equipment from the Owner.
• 5.3 Within 2 business days of the Customer taking possession of the Hired Equipment, the Customer must provide written notification to the Owner if the Hired Equipment is either damaged (providing full particulars of that damage), lost or stolen.
• 5.4 If the Customer fails to notify the Owner of any damage to the Hired Equipment in accordance with clause 5.3 above, the Customer shall be deemed to have taken possession of the Hired Equipment in an undamaged condition and the Customer shall be liable for the cost of repairs or replacement (as the case may be and in the absolute discretion of the Owner) of the damaged Hired Equipment.
• 5.5 During the Hire Period, the Customer must not sublet any Hired Equipment or transfer any Hired Equipment to a separate location without prior written consent from the Owner.
• 5.6 Unless otherwise agreed by the parties (in which case clause 5.7 below applies), the Customer is responsible for the return of the Hired Equipment to the Owner on the Return Date in accordance with the following:
  • (a) returns of Hired Equipment must occur on weekdays between the hours of 7am and 4pm;
  • (b) upon return of the Hired Equipment to the Owner’s premises, the Hired Equipment will be immediately counted and a Hire Return Docket issued by the Owner to the Customer, which shall serve as evidence of the return of the quantities of Hired Equipment identified in the docket.
• 5.7 If the Customer requests the Owner to collect the Hired Equipment, and the Owner agrees, the Owner will use its best endeavours to collect the Hired Equipment within 3 working days from the Return Date, but it will not be liable to the Customer for any Liability or Claim or Loss if it fails to do so.
• 5.8 The Owner’s act of retaking control or possession of the Hired Equipment at the end of the Hire Period is not evidence that the Owner accepts the condition in which the Hired Equipment was returned to the Owner, and all of its rights in relation to being indemnified pursuant to clause 6 are preserved.

6. Indemnities

• 6.1 The Customer shall indemnify the Owner and will keep the Owner indemnified from any Claim, Loss, Liability or damage it has suffered, or may suffer arising from, or otherwise in connection with:
  • (a) any negligent, willful or fraudulent act or omission on the part of the Customer or its employees, servants, contractors in relation to the use of the Hired Equipment;
  • (b) any breach by the Customer of this Agreement;
  • (c) any claims made against the Owner in respect of any injury to persons, loss of productivity or loss of, or damage to property arising out of or in connection with the delivery, servicing, storage, possession, use, modification or failure of the Hired Equipment during the Hire Period;
  • (d) any damage to or loss of or theft of the Hired Equipment.

7. Limitations and Exclusion of Liabilities

• 7.1 Indirect or consequential Loss

  The Owner shall not be liable to the Customer for any indirect or consequential cost, loss, expense or damage of any kind including loss of profit, loss of revenue, loss of any contract, loss of anticipated profit, loss of business opportunity, special or exemplary damages, cost of finance, loss of sales, loss of goodwill, loss of reputation, payment of liquidated sums or damages under this, or any other agreement or at law, in equity or pursuant to statute.

• 7.2 Late delivery/collection of Hired Equipment, provision of Cartage and provision of Labour

  The Owner shall not be liable to the Customer for any Claim, Loss or Liability arising out of, in or in connection with any delay in the:

  • (a) delivery / collection of the Hired Equipment;
  • (b) provision of Cartage; and/or
  • (c) provision of Labour.

• 7.3 Maximum amount of Liability

  The maximum liability of the Owner to the Customer for any Claim, Loss or Liability arising out of the performance, non-performance or breach of this Agreement, whether under the law of contract, tort, pursuant to Statute or otherwise, shall be limited to an amount equal to the total amount of Charges and any additional charges, costs or expenses paid by the Customer to the Owner pursuant to this Agreement.

• 7.4 Duration of Liability

  The Owner shall be deemed to have been discharged from all liability in respect of the performance or non-performance or breach of this Agreement, whether under the law of contract, tort, pursuant to Statute or otherwise, at the expiration of three months from the end of the Hire Period, and the Customer (and persons claiming through or under the Customer) shall not be entitled to commence any action or claim or make any demand whatsoever against the Owner (or any employee, agent, subcontractor or officer of the Owner) arising out of, in or in connection with this Agreement and the provision or purported provision of Cartage, Labour and Hire Equipment (as the case may be) after that date.

• 7.5 Extent of Warranty

  The Owner does not give any warranty nor accept any liability in relation to the performance or non-performance of any Labour, Hired Equipment or Cartage required by this Agreement except to the extent, if any, required by law or specifically provided for in this Agreement. If apart from this clause any warranty would be implied whether by law, custom, pursuant to Statute or otherwise, that warranty is to the full extent permitted by law hereby excluded.

  Nothing herein contained shall be read or applied so as to purport to exclude, restrict or modify or have the effect of excluding, restricting or modifying the application in relation to the supply of any goods or services pursuant to this Agreement of all or any of the relevant provisions of the Competition and Consumer Act 2010 (Cth) (as amended) or any relevant State Act or Territorial Ordinance which by law cannot be excluded, restricted or modified.

8. Termination

• 8.1 The Owner may terminate this Agreement on written notice to the Customer at any time if the Customer:
  • (a) fails to pay any Charges or other amounts payable under this Agreement;
  • (b) otherwise breaches this Agreement and fails to remedy the breach within 5 days of notification of such breach; or
  • (c) commits an act of bankruptcy, or is placed into external administration, as the case may be.
• 8.2 Upon termination, the Customer must:
  • (a) permit the Owner to take all steps necessary to retrieve the Equipment, at the cost of the Customer;
  • (b) immediately pay all outstanding Charges, additional charges, costs and expenses payable under this Agreement;
  • (c) indemnify and keep the Owner indemnified against any Claim, Loss or Liability arising out of in or in connection with the Owner exercising its rights pursuant to this clause.
• 8.3 For the avoidance of doubt, the Owner retains the right of access to any site, building or location in the control of the Customer, where the Hired Equipment may be, for the purpose of repossessing any of the Hired Equipment.
• 8.4 Termination of this Agreement does not affect the accrued rights of parties, whether at law or in equity.

9. Ownership of Hired Equipment

• 9.1 The Customer acknowledges that the Owner owns the Hired Equipment and at all times, the Owner retains title to the Hired Equipment.
• 9.2 Except as provided in clause 10, the Customer is not entitled to offer, sell, assign, sublet, charge, mortgage, pledge or create any form of security interest over, or otherwise deal with the Hired Equipment in any way.
• 9.3 The Customer acknowledges that the Owner may hire or lease equipment from a third party if it cannot provide the equipment to the Customer, and if this occurs, title in the equipment remains with the third party owner.
• 9.4 In the event that the Owner agrees to sell any Hired Equipment to the Customer, title in that Hired Equipment will remain with the Owner until the price for that Equipment together with all monies payable by the Customer to the Owner under this Agreement are paid and received in full by the Owner.

10. Lost or Stolen Hired Equipment

• 10.1 In the event that:
  • (a) the Hired Equipment is not returned to the Owner at the end of the Return Date;
  • (b) during the Hire Period, the Owner receives notice from the Customer that some or all of the Hired Equipment has been lost or stolen; or
  • (c) where after reasonable notice from the Owner, the Customer is unable to produce some or all of the Hired Equipment;

  the Owner is immediately entitled to invoice the Customer for the total amount of the retail sale price of the Hired Equipment lost or stolen which the Customer must pay without deduction or setoff.  Until this amount is paid, Charges will continue to be payable and accrue for the Hired Equipment lost or stolen.

• 10.2 In the event that clause 10.1 is enlivened, but subsequently the Hired Equipment is found and returned to the Owner in an undamaged condition, the Customer shall be entitled to a credit equal to the sum invoiced and paid by the Customer to the Owner

11. Personal Property Securities Act

• 11.1 The Owner may register any actual or impending security interest in relation to any security interest contemplated or constituted by this Agreement in the Hired Equipment and the proceeds arising in respect of any dealing in the Hired Equipment.
• 11.2 The parties acknowledge that the Agreement constitutes a security agreement and gives rise to a purchase money security interest in favour of the Owner over the Hired Equipment, supplied to or to be supplied to the Customer as grantor pursuant to these terms and that the equipment supplied or to be supplied under these terms fall within the Personal Property Securities Act 2009 (Cth) (PPSA).
• 11.3 The Customer:
  • (a) waives its right under section 157 of the PPSA to receive a copy of the verification statement relating to a security interest created under this Agreement;
  • (b) agrees that to the extent permitted by the PPSA, the following provisions of the PPSA will not apply and are contracted out of: section 95 (to the extent that it requires the secured party to give notices to the grantor), section 96, section 118 (to the extent that it allows a secured party to give notice to the grantor), section 121(4), section 125, section 130, section 132(3)(d), section 132(4), section 135, section 142 and section 143;
  • (c) agrees that the following provisions of the PPSA will not apply and the Customer will have no rights under them: section 127; section 129(2) and (3), section 130(1), section 132, section 134(2), section 135, section 136(3), (4), (5), and section 137.

12. Variation

• 12.1 This Agreement can only be varied by:
  • (a) the Owner, giving the Customer 28 days’ notice of varied terms, upon which the Customer is entitled to terminate this Hire Agreement; or
  • (b) agreement in writing between the Owner and Customer.

13. General

• 13.1 No delay or omission by either party to exercise any right, power or remedy available under this Agreement will impair any such right, power or remedy nor will it be construed to be a waiver of that party’s rights.
• 13.2 This Agreement is governed by the laws of Western Australia and the parties each agree to submit to and accept generally the non-exclusive jurisdiction of the courts and appellate courts of Western Australia with respect to any legal action or proceedings which may be brought at any time relating in any way to this Agreement.
• 13.3 This Agreement is a claim for payment under the Construction Contracts Act 2004 (WA).
• 13.4 Any provision of this Agreement that is prohibited or unenforceable is ineffective to the extent of the prohibition or unenforceability.  That does not invalidate the remaining provisions of this Agreement.