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- The person or entity described on any enquiry (“the Customer”) makes application to Atlas Marine PTY Ltd T/A Superior Jetties ABN 94 100 384 254 (“the Supplier”) for the hire of Plant and/or Equipment from the supplier on the Terms and Conditions set out in this Agreement.
- The Customer warrants to the Supplier that:
(a) it is able to pay all debts as and when they become due and payable;
(b) there current or threatened actions against the Customer for non-payment of debt or the imposition of any process pursuant to the Corporations Act 2001 or the Bankruptcy Act 1966.
- The Customer agrees to pay all accounts within the approved trading terms advised by the Supplier at the time of approval.
- If the Customer fails to pay all invoices within the approved time period then the Supplier may take any and all of the following actions in its absolute discretion:
(a) remove all Equipment from all sites without notice;
(b) cancel or suspend the provision of any of the Services;
(c) retake possession of all Plant wherever situates
- This Agreement applies to the exclusion of all other terms and conditions which may purport to be imposed or imported by the Customer in any Purchase Order, Order Confirmation or any other documentation provided by the Customer, unless such additional terms have expressly been agreed to in writing by the Supplier.
TERMS & CONDITIONS OF HIRE
“ACL” means Australian Consumer Law.
“Agreement” means this Agreement any Guarantee, and any variations and alterations made in accordance with this Agreement.
“Consumer” has the meaning given to that term in ACL.
(a) In relation to Equipment Hire, the equipment specified in Hire Documents including, but not limited to Superior Modular Docks (SMD), dogbone connectors, gangways, cables, cleats, pontoons and any other accessories;
(b) In relation to Plant Hire, the plant, machinery or other equipment, not referred to in (a), specified in the Hire Documents;
“Event Customer” means a customer who requires Equipment, other than Plant for a fixed short-term period for a party, festival or similar event with a pre-determined dismantle and removal date.
“Hire Documents” means:
(a) any quotation, estimate or acknowledgement of order produced by the Supplier in response to any request, purchase order, invitation or other enquiry by the Customer;
(b) any documents created for the purpose of evidencing the delivery, collection, removal, addition or alteration of the Equipment; and
(c) any documents produced by the Supplier in relation to any transaction entered into by the parties pursuant to this Agreement.
“Hire Term” commences on the date of delivery and installation of the Equipment and ends on either the date the Equipment is collected by the Supplier, or such earlier Off Hire Date. “Initial Hire Period” means the hire term specified in the Hire Documents.
“Insolvency Event” means any action is proposed, threatened or commenced that has the object of any compulsory or voluntary process pursuant to the Corporations Act 2001, the Bankruptcy Act 1966 or any common law power resulting in the appointment of a receiver or other external controller to the property of any entity or the control and management of any entity.
“Off Hire Code” means a unique identifier code provided to the Customer as evidence of the Off-Hire Date.
“Off Hire Date” is the date on which the Customer notifies the Supplier in writing that the Customer no longer requires the Equipment.
“Premises” means the Premises of the Supplier as specified in the Hire Documents
“Rates” means the fees and charges payable by the Customer for the use of the Equipment pursuant to this Agreement, whether as contained in the Hire Documents or otherwise notified by the Supplier.
“Rehire Period” means that part of the Hire Term that automatically commences upon the end of the Initial Hire Period, unless the Customer notifies the Supplier that it wishes to cease its hire of the Equipment at or before the end of the Initial Hire Period.
“Replacement Value” means the total cost to the Owner, including all delivery and statutory charges of purchasing the relevant Equipment of an equivalent age and condition, excluding Equipment that is less than 12 months old which will be valued as new equipment
“Services” means the services specified in clause
“Site” means the site specified in the Hire Documents.
“Suppliers Website” means the universal resource locator (“URL”) www.superiorjetties.com or any successor URL, including forwarded or sub-domains.
TITLE AND OWNERSHIP
- Ownership in and title to the Equipment remains with the Supplier at all times and under all circumstances.
- The Equipment shall at all times, be taken to be personal property of the Supplier and not fixtures, despite having been connected to an electricity point, gas supply outlet, plumbing connection or another appliance or otherwise affixed to land owned or occupied by the Customer or a third party.
- The Customers right to use the Equipment is as a bailee only.
- The Customer is not entitled to offer, sell, assign, sub-let, charge, mortgage, pledge or create any form of security interest over or otherwise deal in any way with any of the Equipment.
- Unless otherwise agreed by the Supplier, the Customer must identify and store the Equipment in a manner that clearly shows that it is the property of the Supplier.
HIRE RATES AND PAYMENT
- The Rates for the applicable Hire Term shall be as set out in the Hire Documents.
- The Rates for the use of the Equipment for the Initial Hire Period will be charged in accordance with the agreed terms and will be due and payable by the Customer in accordance with the agreed payment terms.
- Payment terms for hire of the Equipment are strictly cash on or before delivery (COD) unless the Customer has obtained an approved credit account with the Supplier.
- If the Customer is a COD customer, valid credit card details must be supplied for additional charges and rehire amounts.
- The Customer must object to any invoice, by notice in writing to the Supplier within 48 hours of the date of invoice, or the Customer is deemed to have accepted the invoice.
PERIOD OF HIRE
- The Supplier agrees to hire the Equipment to the Customer for its exclusive use for the Hire Term.
- The Customer must notify the Supplier in writing no less than seven (7) days prior to the end of the Initial Hire Period, that it wishes to either:
(a) cease hire of the Equipment at the end of the Initial Hire Period; or
(b) extend the Hire Term,
- Unless otherwise agreed pursuant to clause 18. the Hire Term will be automatically extended in successive weekly terms at the rates specified in the Hire Documents until the Customer complies with clause 18 or this Agreement is otherwise lawfully terminated.
USE OF EQUIPMENT AND DAMAGED OR MISSING EQUIPMENT
- The Customer shall at all times keep the Equipment in good working order and condition and will not in any way, repair or alter the Equipment without the prior written consent of the Supplier. The Equipment must at all times, only be used in a safe, lawful and skilful manner, strictly in accordance with its intended use and all applicable laws and regulations.
- The Customer further warrants to obtain all permits required to satisfy all legislation including but not limited to planning, environmental, health and safety laws.
- The Customer shall be responsible for any and all loss, damage or theft to the Equipment for any reason whatsoever (including flood events, cyclones and severe weather events), including liability to pay the costs for the repair or replacement of that Equipment, except damage which in the Supplier’s sole and absolute discretion, is caused by reasonable wear and tear.
- Any Equipment which is not able to be safely collected by the Supplier from the Site or which is not returned by the Customer to the Supplier at the end of the Hire Term, will be charged to the Customer as missing Equipment.
DELIVERY, INSTALLATION AND REMOVAL
- The Supplier will only accept responsibility for defective or deficient Equipment if the Customer gives written notice of the alleged defect of deficiency within 48 hours of delivery.
- The Customer accepts all liability for any interference by the Equipment with services supplied to the site.
- Any document produced and signed by an officer of the Supplier purporting to determine any amount of Equipment that is installed, dismantled, damaged or missing and any dollar amounts of liability for those events is prima facie evidence of the facts and matters stated in the document. Unless the Customer notifies the Suppler in writing within 48 hours of being provided with the document, of any challenge, the Customer waives its right to dispute the document as evidence of the facts and matters stated in it. Exclusion of Warranties
- To the extent permitted by law, the Supplier excludes all warranties, implied or express, in relation to the Equipment.
- The liability of the Supplier is limited to:
(a) In the case of goods, the replacement or repair of the goods or the supply of equivalent goods; or payment of an equivalent amount;
- In the case of services, the supply of the services again: or the payment of the cost of having the services supplied again. Limitation of Liability
- Under no circumstances shall the Supplier be liable for any loss or damage howsoever caused (including as a result of a breach of contract or negligence of the Supplier, its servants, agents, employees, contractors and assigns), including indirect or consequential loss or damage, or any special, punitive or exemplary damages), arising out of, or in connection with the Customer’s possession or use of the Equipment during the Hire Term, including but not limited to, death or personal injury or damages to tangible or intangible property of the Customer or any third party.
- The Customer shall indemnify the Supplier against all liability, claims, damage, loss, costs and expenses (including, without limitation, legal fees, costs and disbursements on a full indemnity basis), whether incurred or awarded against the Supplier, arising out of or in connection with the Customer’s possession or use of the Equipment during the Hire Term.
- The indemnity in Clause 31 above is a continuing obligation, separate and independent from the other obligations of the parties and survives termination, completion and expiration of the term of hire of the Equipment. It is not necessary for a party to incur an expense or make any payment before enforcing a right of indemnity conferred under this Agreement.
TERMINATION BY THE SUPPLIER
- The Supplier may terminate this Agreement and immediately repossess the Equipment in any of the following events:
(a) the Supplier’s rights in the Equipment may or become prejudiced by any act or omission of the Customer.
(b) the Customer is subject to an Insolvency Event;
(c) the Customer breaches any provision of this agreement or fails to pay any amount owed to the Supplier on any account when such amount is due.
RETENTION OF TITLE
- This Agreement constitutes a ‘Security Agreement’ for the purposes of the Personal Property Securities Act 2009 (Cth) (“PPSA”) and the Supplier’s interest in the Equipment constitutes a ‘security interest’ for the purposes of the PPSA.
- The Customer agrees that the Supplier retains a Purchase Money Security Interest (“PMSI”) in the Equipment pursuant to this Agreement.
- The Customer acknowledges that title to the Equipment always remains with the Supplier and consents to the supplier registering its PMSI interest in the Equipment.
- The Customer irrevocably authorises the Supplier, its servants or agents, to enter upon any land or premises where the Equipment is present, whether or not by force, to recover possession of the Equipment and releases and indemnifies the Supplier, its servants or agents against all liability incurred, including to third parties, as a result of the Supplier exercising its rights pursuant to this clause.
- To the extent permitted by PPSA the Hirer and the Owner agree that the following PPSA provisions do not apply to this Agreement:
(a) Section 125 (obligation to dispose of or retain collateral);
(b) Section 130 (notice of disposal), to the extent that a notice is required)
(c) Section 132(3)(d) (contents of statement of account after disposal);
(d) Section 132(4) (statement of account if no disposal);
(e) Section 134 (2) (retention of collateral notice);
(f) Section 135 (notice of retention);
(g) Section 137 (persons entitled to notice may object to proposal);
(h) Section 142 (redemption of collateral);
(i) Section 143 (reinstatement of security agreement).
- To better secure the Supplier, the Customer hereby charges any and all of its real property, wherever situate and existing at the date of this Agreement or acquired by the Customer after the date of this Agreement with all amounts that may be due and owing to the Supplier by the Customer on any account whatsoever.
- The Customer consents to the Supplier registering the charge granted by clause 88 and executing its rights without further notice to the Customer.
- The Customer hereby appoints any current director of the Supplier as its lawful attorney expressly for the purpose of executing any mortgage or other document necessary to perfect the security granted in clause 88.
- Any notice required to be given to the Supplier pursuant to this Agreement must be sent to either the postal or email address published on the Supplier’s Website or stated in the Hire Documents.
- Any notice required to be given to the Customer pursuant to this Agreement must be sent to either the postal or email address stated on the first page of this Agreement.
- Notices are deemed to have been received:
(a) In the case of notices sent in the post, 3 days after they have been posted by the sending party; and
(b) In the case of notices sent by email, the same day that the email was sent by the sending party.
- If any provision of this Agreement becomes unenforceable for any reason, then that provision shall be severed, and the remaining parts of the agreement shall be binding on the parties.
LAW AND JURISDICTION
- This Agreement is governed by the law of Queensland and the Parties submit to the non-exclusive jurisdiction of the courts of Queensland.
- The Supplier may amend the terms of this Agreement by: (a) Giving the Customer notice in writing, including a copy of the amended terms; or (b) Notifying the Customer that amended terms are available for review on the Suppliers Website.
- In either case, the amended terms will apply to this agreement mutatis mutandum on and from the expiration of 30 days after the notice is given.
- The Customer may not transfer or assign its rights and obligations pursuant to this Agreement without the written consent of the supplier.
- The Supplier may assign, transfer or novate its rights and obligations pursuant to this Agreement with or without notice to the Customer
Please visit superiorjetties.com to view our current Terms and Conditions of Hire.