Absolute Cranes - general terms and conditions

These General Terms and Conditions describe the terms and conditions under which Absolute Cranes will supply equipment on a wet hire basis to the Customer, and govern all hire arrangements and services between Absolute Cranes and the Customer. Each Job Docket, these General Terms and Conditions together with any appendix, annexure or other document agreed in writing between both Parties comprise the entire Hire Agreement between Absolute Cranes and the Customer. Any commencement of the services ordered by the Customer is done strictly in accordance with these terms and conditions. Any terms and conditions supplied or communicated by the Customer are expressly rejected.

The person signing the Hire Agreement for and on behalf of the Customer hereby covenants with Absolute Cranes that they have the authority of the Customer to enter this Hire Agreement.

1. Definitions and interpretation

1.1. Definitions

Absolute Cranes means Absolute Crane Solutions Pty Ltd ACN 165 456 548.

Absolute Cranes Personnel means the person or persons employed or engaged by Absolute Cranes to drive, operate, use or transport the Equipment provided to the Customer as specified under the Hire Agreement and may include operators, riggers, dogmen, supervisors, drivers and any such other employee or agent of Absolute Cranes.

Charges means the fees specified in a Job Docket or provided to the Customer verbally or via email (as the case may be) for the use of the Equipment and the provision of Services determined in accordance with this Hire Agreement.

Claims means any claim, demand, remedy, suit, injury, damage, loss, cost, liability, action, proceeding, right of action, claim for compensation or reimbursement or liability incurred by or to be made or recovered by or against such person, corporation or legal entity however arising and whether ascertained or unascertained.

Customer means the person, company or firm named in the Job Docket and includes the Customer’s employees, agents, contractors and officers, and the person signing the Hire Agreement on behalf of the Customer.

Daily Rate means a daily rate specified in a Job Docket or as provided to the Customer by Absolute Cranes verbally or via email and which rate applies to the hours.

Equipment means the crane specified or described in a Job Docket or otherwise supplied by Absolute Cranes under the Hire Agreement.

Hire Agreement means the conditions set out in these General Terms and Conditions in conjunction with any Job Docket, appendix, annexure or other document agreed in writing between both Parties.

Hire Period means the period specified in the Job Docket for which the Equipment is on hire.

Hourly Rate means an hourly rate specified in a Job Docket or as provided to the Customer by Absolute Cranes verbally or via email.

Job Docket means a schedule, docket or other document whether signed by the Customer or not which details of the Equipment on hire, the Hire Period and such other information as Absolute Cranes may decide to require.

Laws means all applicable laws, codes, authorisations or rules in the relevant jurisdiction including any law or legal requirement under equity, statute, regulation, ordinance or by-law whether commonwealth, territorial, state or local and includes the WHS laws.

Parties includes both Absolute Cranes and the Customer.

PPSA means the Personal Property Securities Act 2009 (Commonwealth) as amended from time to time.

PPS Register means the Personal Property Securities Register established under the PPSA.

PPS Security Interest means a ‘security interest’ as defined in the PPSA and to which the PPSA applies.
Services means all services to be provide by Absolute Cranes under the Hire Agreement, including the hire of Equipment (and fuel) but excludes any outcome that has not been agreed with Absolute Cranes or is a result of the Customer’s breach of clause 4.

1.2. In the Interpretation of this Hire Agreement, unless the context requires otherwise:

(a) any words importing the singular include the plural and vice versa;

(b) capitalised words are defined terms and shall have their defined meaning;

(d) an obligation of two (2) or more Parties binds them jointly and severally;

(e) a reference to a person includes the legal representatives, employees, successors, and assignees of that person;

(f) a reference to a statute, ordinance, code or other law includes regulations and other statutory instruments under it, consolidations, amendments, re-enactments or replacements of any of them made by any legislative authority;

(g) a reference to $ or dollars means Australian Dollars;

(h) the Hire Agreement will constitute the entire agreement between Absolute Cranes and the Customer and supersedes all previous agreements, understandings, representations and negotiations; and

(i) to the extent of any inconsistency between documents forming the Hire Agreement, precedence of contract shall be determined in the following order of priority: 1) General Terms and Conditions, 2) Job Docket, 3) quotation, 4) any other document signed by both parties, 5) all other documents.

2. Hire of Equipment and provision of Services

2.1. Subject to clause 8, Absolute Cranes agrees to provide the Services to the Customer for the Hire Period.

2.2. A Hire Agreement is accepted by both Parties on the issuing of a Job Docket by Absolute Cranes. For the avoidance of doubt, this includes acceptance by the Customer of the Charges.

2.3. Absolute Cranes will provide Equipment on a wet hire basis, meaning that Absolute Cranes will provide an operator for the Equipment. The Customer must not allow any person other than Absolute Cranes Personnel to access or operate the Equipment.

2.4. Absolute Cranes may supply a rigger or dogman if requested by the Customer.

2.5. The Customer is responsible for obtaining all required approvals, permits and consents of all relevant government, local and other authorities for any use or operation of the Equipment at the nominated site of operation.

2.6. The Customer warrants that all weights of items to be craned as disclosed to Absolute Cranes are true and correct and do not exceed the Equipment’s maximum lifting capacity.

2.7. If the Customer wishes to use the Equipment to lift or transport materials that are noxious, inflammable, hazardous, dangerous or explosive, the Customer acknowledges and agrees that it must comply with all applicable Laws in respect of the materials as well as their lifting or transportation.

3. Charges

3.1. The Customer will be charged on a depot to depot basis. Hourly and daily rates are calculated based on work performed from 7.00am-3.30pm and allowing for a 30-minute break. For work performed outside these hours, Absolute Cranes’ Charges will increase by $45.00 per hour (or part thereof) for each Absolute Cranes personnel providing Services.

3.2. The Customer agrees to pay the Charges for the Hire Period at the rates specified in the Job Docket within 7 days of the invoice date, or by such other period stated in the Job Docket, plus any additional fees or charges payable by the Customer in accordance with these General Terms and Conditions. If the Customer disputes the Charges the Customer must notify Absolute Cranes within 3 days of the invoice date or otherwise the Customer is taken to accept the Charges in full.

3.3. The Charges in respect of Absolute Cranes Personnel are subject to additional charges for loadings, penalties and allowances as applicable to Absolute Cranes Personnel pursuant to their terms of engagement including night shifts, weekends, standby, overtime, public holidays, meals, travel and accommodation.

3.4. There is a minimum charge of 2 x Hourly Rate for a 7 tonne crane and for all other Equipment, a minimum charge of 4 x Hourly Rate applies (both a Minimum Charge).

3.5. The Customer will be liable for a cancellation fee equal to the applicable Minimum Charge if the Customer cancels the hire within 24 hours of its commencement other than for reasons of inclement weather and provided no Absolute Cranes Personnel have been mobilized.

3.6. Charges will be determined by multiplying the number of days or hours in the Hire Period by the Daily Rate or Hourly Rate.

3.7. Absolute Cranes reserves the right to revise its Charges and any additional charges where Absolute Crane incurs additional costs because of non-disclosure by the Customer, unforeseen site problems or reliance on incorrect lifting dimensions, weights or distances provided to it.

3.8. All Charges are exclusive of GST, government duties, taxes and charges.

3.9. If a supply under the Hire Agreement is subject to GST, the recipient of the supply (Customer) must pay to the supplier (Absolute Cranes) at the same time and in the same manner as the consideration is otherwise payable, an amount equal to the amount of consideration multiplied by the applicable GST rate, subject to the supply of a valid tax invoice by the supplier (Absolute Cranes).

3.10. Absolute Cranes will invoice the Customer by providing a tax invoice at the completion of the Hire Period or at the end of each calendar month, whichever is the earlier.

3.11. If either Party is required to indemnify or reimburse a part of a cost, expense or liability (“Expense”) incurred by the other, then the Expense shall be reduced by the credit or refund of GST to which the Party which first incurred the Expense is entitled to claim in respect of the Expense.

3.12. Absolute Cranes reserves the right to charge interest to the Customer on amounts which remain unpaid after the due date for payment. Interest will be calculated daily on the unpaid amount (including accrued interest) at 2% per annum above the rate specified from time to time under section 2 of the Penalty Interest Rates Act 1983 (Vic). Without limiting the above, the Customer hereby indemnifies Absolute Cranes for all costs and expenses (including legal expenses and any other third-party costs) incurred by Absolute Cranes in recovering amounts which remain unpaid after the due date.

4. Safety and access

4.1. Absolute Cranes Personnel will work under the direction of the Customer who must consult with and fully brief Absolute Cranes Personnel on the proposed tasks, the site, site conditions, matters affecting health and safety of the Absolute Cranes Personnel in respect of the tasks to be performed and other relevant matters. The Customer accepts that Absolute Cranes Personnel may require further information or clarification to complete tasks to be performed, or a lift study prior to commencing the task and may refuse to operate the Equipment if they believe any directions or control requested by the Customer may affect the safety of people, property or Equipment.

4.2. The Customer must do all things reasonably practicable to ensure its employees, Absolute Cranes Personnel and other persons working under its direction or control:

(a) take active steps including review of any applicable safety job safety analysis or safe work method statement relevant to the work they are to perform and that those documents have been drafted by an appropriately qualified and experienced person;

(b) are fit for duty and not under the influence of drugs or alcohol;

(c) are appropriately briefed by the Customer as to the site, safe work systems, control/restricted zones and any applicable lift plans or studies; and

(d) wear suitable protective and high visibility clothing when working with, on or around the Equipment.

4.3. The Customer will consult and co-operate with Absolute Cranes Personnel in respect of matters relating to the safe use and handling of the Equipment.

4.4. The Customer is responsible for providing site access and for ensuring the ground at the site is adequate to support the Equipment under its wheels and outriggers.

5. Ownership and possession of the Equipment

5.1. The Customer agrees that:

(a) subject to clause 5.2, Absolute Cranes owns the equipment at all times and in all circumstances, retains title to the Equipment. No person is entitled to use, dispose of or otherwise deal with the Equipment in any way that is inconsistent with Absolute Cranes’ ownership or these General Terms and Conditions;

(b) it will not offer, sell. assign, sub-let, pledge, mortgage or otherwise deal with or part possession of the Equipment in any way which is inconsistent with the rights of Absolute Cranes as the owner, lessee or otherwise (as the case may be) of the Equipment;

(c) Absolute Cranes has the right to remove the Equipment the equipment at any time (whether the Customer is in breach of the Hire Agreement) and access to the equipment must be granted or procured for that purpose; and

(d) The Customer indemnifies and keeps indemnified Absolute Cranes for any costs incurred in recovering the Equipment whether abandoned, unlawfully detained or otherwise.

5.2. The Customer acknowledges that Equipment may be leased to Absolute Cranes by a third party or otherwise subject to third party finance (in each case the Owner) and in that event title to the Equipment remains with the Owner. The Customer agrees, upon reasonable notice, to allow the Owner access to the Equipment from time to time to inspect the Equipment. The Customer acknowledges and agrees that if Absolute Cranes’ agreement with the Owner terminates during the term of this agreement, this Hire Agreement will automatically terminate, and the Owner may immediately recover possession of the Equipment from the Customer.

6. PPS Law
6.1. The Customer acknowledges that the Hire Agreement gives rise, or may give rise, to one or more PPS Security Interests.

6.2. The Customer agrees to provide Absolute Cranes with all information reasonably required by Absolute Cranes to ensure that any registration of any PPS Security Interest provided for by the Hire Agreement is, and remains, fully effective or perfected (or both) on the PPS Register or any other register that Absolute Cranes chooses.

6.3. Nothing in the Hire Agreement may be taken as an agreement that any PPS Security Interest provided for by the Hire Agreement attaches later than the time contemplated by section 19(2) of the PPSA. The Customer acknowledges that Absolute Cranes has not agreed to subordinate any PPS Security Interest provided for by the Hire Agreement in favour of any other person.

6.4. If, in breach of the Hire Agreement, the Customer attempts to dispose of or otherwise deal with any personal property that is subject to a PPS Security Interest in favour of Absolute Cranes, the Customer acknowledges that, despite the disposal or dealing, Absolute Cranes has not authorised the disposal or agreed that the dealing would extinguish Absolute Cranes’ PPS Security Interest and Absolute Cranes’ PPS Security Interest continues in that property.

6.5. The Customer acknowledges that Absolute Cranes may register one or more financing statements in relation to any PPS Security Interests provided for by the Hire Agreement. If permitted by the PPSA, the Customer waives its rights under section 157 of the PPSA to receive notice of any verification statement relating to the registration of any such financing statement or any related financing change statement.

6.6. The parties must not disclose information of the kind mentioned in section 275(1) of the PPSA, except in the circumstances required by sections 275(7)(b) to (e) of the PPSA. The Customer must obtain Absolute Cranes’ approval before authorising the disclosure of information under section 275(7)(c) of the PPSA or requesting information under section 275(7)(d) of the PPSA.

6.7. To the extent that the PPSA permits, the Customer waives its rights under sections 95, 96, 117, 118, 120, 121(4), 123, 125, 126, 128, 129, 130, 135, 142 and 143 of the PPSA.

7. Liability

7.1. Except where legislation which cannot be excluded would make this clause void:

(a) Absolute Cranes will not be liable for any claim the Customer may incur or that may arise from any breakdown, fault or other defect in the Equipment and the Customer is responsible for and must hold harmless Absolute Cranes for the cost of repairs to the Equipment arising out of or in respect of any breakdown or damage to the Equipment where such breakdown or damaged is caused by any act or omission of the Customer or any of its employees, contractors, subcontractors or agents. The Customer must also pay on demand to Absolute Cranes an amount equal to the hours, calculated by reference the applicable hourly rate, that the Equipment is idle because of damage or breakdown caused by the Customer or any of its employees, contractors, subcontractors or agents; and

(b) Absolute Cranes will not be liable for:

(i) any indirect, consequential, incidental, special or exemplary damages, expenses, losses or liabilities, or for loss of profits, business interruption, loss of revenue, economic loss, loss of goodwill, loss of opportunity or expectation loss or loss of production; or

(ii) any delay, including weather conditions, ground conditions, strike or industrial disputes, or breach or default under the Hire Agreement in circumstances where the delay, breach or default is caused by anything beyond Absolute Cranes’ control whether Absolute Cranes may have been able to foresee the occurrence of the thing or had taken any steps to avoid its consequences. During any delay, Absolute Cranes’ obligations under the Hire Agreement are suspended; and

(c) The Customer releases and indemnifies and keeps indemnified Absolute Cranes against all claims in respect of any injury or death to persons (including but not limited to any operator of Equipment), or damage to property, including underground or above ground services, footpaths, driveways, grounds, lawns, fences or structures, arising out of the use of the Equipment however arising, including from the negligence of Absolute Cranes.

7.2. Subject to clause 7.3, Absolute Cranes’ liability under these General Terms and Conditions will be limited in the aggregate to two times the Charges paid to it at the time of the event giving rise to the liability.

7.3. Absolute Cranes accepts liability for all warranties implied under the Australian Consumer Law which is contained in Schedule 2 of the Competition and Consumer Act 2010 (Cth) or any other legislation (such as the Fair Trading Acts (or equivalent legislation) in each State and Territory). All warranties and conditions that are capable of exclusion and would, apart from this provision, form part of the Hire Agreement, are expressly excluded. Except where by legislation liability may not be limited, or where a limitation of liability would otherwise render Absolute Cranes liable to penalty, Absolute Cranes’ liability for breach of terms which cannot be excluded is limited to:

(a) in the case of goods, the repair or replacement of the goods or the supply of substituted goods; and

(b) in the case of Services, supply of the Services again (or the cost of doing so).

8. Termination

8.1. Absolute Cranes may terminate the Hire Agreement without notice if the Customer:

(a) commits a breach of the Hire Agreement;

(b) permits any act or thing to be done which may prejudice, diminish or alienate Absolute Cranes’ rights to or in the Equipment;

(d) becomes insolvent or is unable to pay its debts when they fall due;

(e) enters into voluntary liquidation, provisional liquidation, administration or receivership,

(f) has a winding up petition presented against it;

(g) has any of its property seized by a secured creditor or any secured creditor takes steps to enforce its rights; or

(h) ceases to be carrying on business or substantially changes its business activities.

8.2. On termination of the Hire Agreement, Absolute Cranes is entitled to take immediately possession of the Equipment by entering onto any land or premises upon which the Equipment is situated. The Customer expressly consents to Absolute Cranes entering onto any land or premises owned by or under the control of the Customer (or will procure such consent) for the purposes of recovering the Equipment.

8.3. The Customer indemnifies and keeps indemnified Absolute Cranes against all Claims, damages, costs and other expenses suffered by Absolute Cranes arising out of or relating to any action it takes to possess the Equipment.

9. Variation

9.1. Absolute Cranes may vary these General Terms and Conditions at any time acting reasonably and by giving notice of the amendment to the Customer. If the Customer does not agree to the variation it may terminate the Hire Agreement in writing, provided it must comply with its obligations under the Hire Agreement, including paying any Charges due and payable.

10. Jurisdiction

10.1. The Hire Agreement is governed by the laws of the State of Victoria. The parties irrevocably submit to the exclusive jurisdiction of the Courts of the State of Victoria.

11. Waiver and severability

11.1. Any failure or delay by Absolute Cranes in exercising any right, power or remedy which it is entitled to under the Hire Agreement, does not amount to a waiver of that right, power or remedy nor does it preclude any further exercise of such rights, powers or remedies as may be provided under the Hire Agreement.

11.2. Any provision of the Hire Agreement which is invalid or unenforceable must:

(a) be read down to the minimum extent necessary to achieve its validity, if applicable; and

(b) be severed from the Hire Agreement in any other case,
without invalidating or affecting the remaining provisions of this Agreement or the validity of that provision in any other jurisdiction.

12. Miscellaneous

12.1. Neither the Hire Agreement nor the relationship created by it, is intended to create, and will not be construed as creating, any partnership, joint venture or fiduciary obligation regarding, or as between, the parties.

12.2. The terms of the Hire Agreement are confidential and must not be disclosed to any third party except where required by law.

12.3. Any notice to be given or served by Absolute Cranes or the Customer must be in writing signed by an authorized officer of the party giving the notice and sent by registered mail to the other party’s registered office.

12.4. The Customer may not withhold any payment due under the Hire Agreement or set-off or deduct all or any part of a payment (including any Charges) against any amount claimed by the Customer from Absolute Cranes, for any reason (including by way of counterclaim).