The maintenance provided for HLF hire units provides for the following: -
- Service provision from 8.00am to 4.30pm Monday to Thursday and 8.00am to 2.30pm Friday (excluding public holidays) we also have 24 hour emergency breakdown support
- All labour, travelling time and mileage
- All spare parts required for periodic maintenance and breakdown services
- All consumables such as oils, greases, hardware items, etc.
- Replacement of tyres at a rate of one set per annum maximum per unit
- Repairs and maintenance of all attachments
This programme does not provide for: -
- Theft
- Accidental or malicious damage to the forklift
- Daily operator checks of oils and water levels
- Supply of fuel
HLF can make available at no charge a replacement forklift truck to avoid excessive downtime during service or repair. This facility would be subject to unit availability of a similar specification.
PLEASE NOTE THIS OFFER IS SUBJECT TO OUR BOARD OF DIRECTOR’S APPROVAL. ACCEPTANCE OF THIS QUOTATION SHALL NOT RESULT IN LEGALLY BINDING OBLIGATIONS ON HEAVY LIFT FORKLIFTS(HLF) BUT UNLESS HLF OTHERWISE DECIDES THE HIRER SHALL ENTER INTO A HIRING AGREEMENT WITH HLF ON HLF’S STANDARD TERMS AND CONDITIONS OF HIRE.
The following terms and conditions shall apply to and be incorporated into any order or contract accepted, entered into or made by HLF Pty Ltd.
This quotation is based on the maximum number of hours per machine per week as quoted earlier in this quotation document.
Except as provided in clause 1, this quotation will be held firm for 30 days from the date of quotation.
HLF will fully maintain the units on hire with the following exemptions:
Tyre replacement will be to the hirers account.
Damage outside of normal wear and tear will be charged to the hirer.
12.5% insurance charged on hire rate unless the hirer has insurance to indemnify HLF against loss or accident to personnel or property.
To insure the Equipment against fire accident and theft for its full insurable value in the names of HLF and the Hirer as to their respective interests.
Stamp duty if applicable will be extra.
HLF will invoice the hirer on the first day of every month in advance.
The quoted price will be held firm for the initial twelve months and then will be subject to rise and fall in accordance with CPI variations. Price increases will not exceed 60% of the CPI figure.
The following terms and conditions shall apply to and be incorporated into any hire agreements accepted, entered into or made by HLF
This Hire Agreement shall begin on the Commencement Date and shall terminate on the earlier of
(a) the Expiry Date, or
(b) that date upon which the Hirer commits any breach of this Hire Agreement,
- commits or suffers any act or bankruptcy,
- (being a company) goes into liquidation or has a receiver appointed over any part of its undertaking,
- has execution or distress levied against him or his goods.
The Hirer agrees to pay HLF,
(a) The Hire Charges in the amounts and at the times and place specified in the Schedule.
(b) all stamp duty and other duties and taxes that may now or hereafter be incurred in respect of this Hire Agreement, and
(c) all transportation charges reasonably incurred in making the equipment available to the Hirer at the Delivery Point.
The Hirer acknowledges that the Hire Charges appearing in the Schedule are based on the current prices of labour and spare parts, HLF may at any time by seven (7) days’ notice in writing to the Hirer increases the Hire Charge to take account of increases in the prices of labour and spare parts. The Hirer shall pay the increased Hire Charges from the date specified in such notice. The current CPI is
The Hirer agrees:
(a) to insure the Equipment against fire, accident, flood and theft for its full insurable value in the names of HLF and the Hirer as to their respective interests.
(b) to keep the Equipment in good repair and to carry out all daily maintenance checks and to make good any damage to the equipment or any part thereof except to the extent that such damage or maintenance is due to fair wear and tear.
(c) to repair puncture and to replace worn tyres except to the extent that the wear is caused by fair wear and tear up to a maximum of one set per year.
(d) to charge and top up with distilled water all batteries being part of the Equipment and to keep daily log thereof.
(e) use in connection with the Equipment only the best procurable fuels and lubricants of a type and in accordance with the directions specified by HLF.
(f) not to re-locate the Equipment without permission of HLF.
(g) not to do or omit to do anything likely to endanger the safety or condition of the Equipment.
(h) to comply with all relevant Acts, regulations and by-laws relating to the Equipment and its use.
(i) that when the unit is a standby unit or on hourly charge bases, they will maintain a log book recording the days and hours during which the equipment was used and to make such a log book available for inspection and copying by HLF and its representatives.
(j) to allow the authorised representatives of HLF to enter upon any premises on which the Equipment is located for the purpose of inspecting and testing the Equipment.
(k) to make the Equipment available for service and repair during normal working hours or to pay an additional charge if HLF is required to service or repair the machine outside of normal working hours.
(l) to operate the Equipment in a safe and proper manner and to comply with the instructions and directions given by HLF regarding the operation of the Equipment from time to time.
If the Hirer does not comply with Clause 4. HLF may, at its option enter into the premises on which the Equipment is located at any time without notice to the Hirer and rectify any damage. The Hirer shall promptly reimburse and pay all the costs associated with such rectification to HLF on demand.
The Hirer acknowledges that it has no property or interest in the Equipment or any part thereof and is a bailee only. Accordingly, the Hirer agrees that it
(a) will make no additions or alterations to the Equipment without written consent of HLF Any additions made to the Equipment whether by replacement substitution or otherwise shall form part of the Equipment and shall be subject to this Hire Agreement.
(b) will not remove obscure or deface any identifying mark label or device on the Equipment or any part thereof
(c) will not purport or attempt to sell dispose of charge or encumber the Equipment or to assign its rights under this Hire Agreement.
(a) All warranties, representations, promises, conditions or statements regarding the Equipment whether express or implied including without limiting the generality of the foregoing warranties or conditions as to the suitability or fitness of the equipment for any particular purpose are expressly excluded to the full extent permitted by law.
(b) The liability of HLF for the breach of any condition or warranty implied in this Hire Agreement shall be limited to such one of the following as HLF in its discretion may decide the replacement of the defective Equipment or part there of the payment of the cost of replacing the Equipment or part of acquiring equivalent Equipment or part
(c) Same as mentioned above, HLF shall not be liable for any damages for delivery of the equipment or any consequential or economic loss or damage caused or contributed to be the equipment.
(d) The Hirer agrees to indemnify and hold HLF harmless from all claims costs and damages that HLF may suffer in respect of injury to person or property arising out of the Hirer’s use and custody of the Equipment.
(a) Upon the termination of this Hire Agreement in accordance with Clause 1, the Hirer shall
- promptly return the Equipment to HLF at its principle place of business
- pay to HLF all Hire Charges that would otherwise have been payable from the date of termination of this Agreement to the Expiry Date
(b) If the Hirer does not promptly return the Equipment, HLF shall have the right to enter into any premises at the time without notice to the Hirer on which it reasonably suspects the Equipment to be and to retake possession of the Equipment.
(c) If HLF does not retake possession of the Equipment the Hirer shall immediately upon demand by HLF pay to HLF the current market value of the Equipment as nominated by HLF
In addition to the amounts previously referred to HLF shall be entitled to charge and the Hirer shall pay
(a) all costs and expenses of or associated with retaking possession of the Equipment
(b) interest at the rate of fourteen per centum (14%) per Annum on any moneys owing under this Lease that be overdue.
(a) Notices may be served by prepaid ordinary post to the parties at the respective addresses appearing in this Hire Agreement
(b) The certificate of the Secretary of HLF shall be conclusive (absent manifest error) of any amount due owing or recoverable under this Hire Agreement
(c) Expressions used in these terms and conditions shall have the respective meanings attributed to them in the Schedule.
(d) This Hire Agreement shall be governed by the laws of New South Wales and each party irrevocably and unconditionally submits to the non-exclusive jurisdiction of the Courts of that State.
(a) The Hirer/Customer acknowledges that the unit/units on hire is covered by the PERSONAL PROPERTY SECURITIES ACT 2009) PPSA;
(b). The Hirer/Customer will, at the request of the owner, execute documents and do such further acts as may be required for The Owner/HLF to register the security interest granted by The Hirer/Customer under the PPSA.
(c) The Hirer/Customer agrees to accept service of any document required to be served, including any notice under this agreement or the PPSA or any originating process, by prepaid post at any address nominated in this agreement or any other address later notified to The Owner/HLF by The Hirer/Customer or The Hirer/Customers authorised representative.
(d) The Hirer/Customer further agrees where that The Owner/HLF has rights in addition to those under part 4 of the PPSA, those rights will continue to apply.
(e) The Hirer/Customer irrevocably grants to The Owner/HLF the right to enter upon The Hirer/Customers property or premises, without notice, and without being in any way liable to The Hirer/Customer or to any third party, if The Owner/HLF has cause to exercise any of its right under sections 123 and/or 128 of the PPSA, The Hirer/Customer shall indemnify The Owner/HLF from any claims made by any third party as a result of such exercise.
(f) The Hirer/Customer hereby consents to The Owner/HLF recording the details of this agreement on the PPSR register and agrees to all things necessary and reasonably required by The Owner/HLF to effect such registration.
(g) The Hirer/Customer waives any right or entitlement to receive notice of the registration of any security interests created by this instrument on the PPSA register.
Please note that a larger print version of these terms and conditions is available from HLF on request. © Copyright – EC Credit Control 1999 - 2019 #24002
1.1 “HLF” means Heavy Lift Forklifts Pty Ltd, its successors and assigns or any person acting on behalf of and with the authority of Heavy Lift Forklifts Pty Ltd.
1.2 “Customer” means the person/s or any person acting on behalf of and with the authority of the Customer requesting HLF to provide the Services (and/or hiring the Equipment) as specified in any proposal, quotation, order, invoice or other documentation, and: (a) if there is more than one Customer, is a reference to each Customer jointly and severally; and (b) if the Customer is a part of a Trust, shall be bound in their capacity as a trustee; and (c) includes the Customer’s executors, administrators, successors and permitted assigns.
1.3 “Goods” means all Goods or Services supplied by HLF to the Customer at the Customer’s request from time to time (where the context so permits the terms ‘Goods’ or ‘Services’ shall be interchangeable for the other).
1.4 “Equipment” means all Equipment including any accessories supplied on hire by HLF to the Customer (and where the context so permits shall include any supply of Services). The Equipment shall be as described on the invoices, quotation, authority to hire, or any other work authorisation form provided by HLF to the Customer.
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 HLF to the Customer.
1.6 “Price” means the Price payable (plus any GST where applicable) for the Goods and/or Equipment hire as agreed between HLF and the Customer in accordance with clause 5 below.
1.7 “GST” means Goods and Services Tax (GST) as defined within the “A New Tax System (Goods and Services Tax) Act 1999” Cth.
2.1 The Customer is taken to have exclusively accepted and is immediately bound, jointly and severally, by these terms and conditions if the Customer places an order for or accepts delivery of the Goods/Equipment.
2.2 These terms and conditions may only be amended with the consent of both parties in writing, and shall prevail to the extent of any inconsistency with any other document or contract between the Customer and HLF.
2.3 Electronic signatures shall be deemed to be accepted by either party providing that the parties have complied with Section 9 of the Electronic Transactions (Victoria) Act 200 or any other applicable provisions of that Act or any Regulations referred to in that Act.
2.4 If HLF has been requested by the Customer to diagnose a fault that requires disassembly and/or testing, all costs involved will be charged to the Customer irrespective of whether or not the repair goes ahead.
2.5 Any advice, recommendation, information, assistance or service provided by HLF in relation to Goods/Equipment or Services supplied is given in good faith, is based on HLF’s own knowledge and experience and shall be accepted without liability on the part of HLF, and it shall be the responsibility of the Customer to confirm the accuracy and reliability of the same in light of the use to which the Customer makes or intends to make of the Goods/Equipment or Services.
3.1 The Customer acknowledges and accepts that HLF 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 HLF 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 HLF in respect of the 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 HLF; the Customer shall not be entitled to treat this contract as repudiated nor render it invalid.
4.1 The Customer shall give HLF not less than fourteen (14) days prior written notice of any proposed change of ownership of the Customer and/or any other change in the Customer’s details (including but not limited to, changes in the Customer’s name, address, contact phone or fax number/s, change in trustees, or business practice). The Customer shall be liable for any loss incurred by HLF as a result of the Customer’s failure to comply with this clause.
5.1 At HLF’s sole discretion the Price shall be either: (a) as indicated on any invoice provided by HLF to the Customer; or (b) the Price as at the date of delivery of the Goods/Equipment according to HLF’s current price list; or (c) HLF’s quoted price (subject to clause 5.2) which will be valid for the period stated in the quotation or otherwise for a period of thirty (30) days.
5.2 HLF reserves the right to change the Price: (a) if a variation to the Goods/Equipment which are to be supplied or the Services originally scheduled (including any applicable plans or specifications) is requested; or (b) where additional Services are required due to the discovery of hidden or unidentifiable difficulties (including, but not limited to, further faults which are found upon disassembly and/or further inspection, etc.) which are only discovered upon commencement of the Services; or (c) in the event of increases to HLF in the cost of labour or materials which are beyond HLF’s control.
5.3 Where HLF is requested to store the Customer’s Goods, or where the Goods are not collected within twenty four (24) hours of advice to the Customer that they are ready for collection, then HLF (at its sole discretion) may charge a reasonable fee for storage.
5.4 Variations will be charged for on the basis of HLF’s quotation, and will be detailed in writing, and shown as variations on HLF’s invoice. The Customer shall be required to respond to any variation submitted by HLF within ten (10) working days. Failure to do so will entitle HLF to add the cost of the variation to the Price. Payment for all variations must be made in full at the time of their completion.
5.5 At HLF’s sole discretion: (a) a non-refundable deposit may be required; or (b) a bond may be required which shall be refunded upon return of the Equipment in a condition acceptable to HLF.
5.6 Time for payment for the Goods/Equipment being of the essence, the Price will be payable by the Customer on the date/s determined by HLF, which may be: (a) on delivery of the Goods/Equipment; (b) by way of instalments/progress payments in accordance with HLF’s payment schedule; (c) the date specified on any invoice or other form as being the date for payment; or (d) failing any notice to the contrary, the date which is seven (7) days following the date of any invoice given to the Customer by HLF.
5.7 Payment may be made by cash, cheque, bank cheque, electronic/on-line banking, credit card (a surcharge may apply per transaction), or by any other method as agreed to between the Customer and HLF.
5.8 The Customer shall not be entitled to set off against, or deduct from the Price, any sums owed or claimed to be owed to the Customer by HLF nor to withhold payment of any invoice because part of that invoice is in dispute.
5.9 Unless otherwise stated the Price does not include GST. In addition to the Price the Customer must pay to HLF an amount equal to any GST HLF must pay for any supply by HLF under this or any other contract for the sale of the Goods/hire of the Equipment. The Customer must pay GST, without deduction or set off of any other amounts, at the same time and on the same basis as the Customer pays the Price. In addition the Customer must pay any other taxes and duties that may be applicable in addition to the Price except where they are expressly included in the Price.
6.1 Delivery (“Delivery”) of the Goods/Equipment is taken to occur at the time that: (a) the Customer or the Customer’s nominated carrier takes possession of the Goods/Equipment at HLF’s address; or (b) HLF (or HLF’s nominated carrier) delivers the Goods/Equipment to the Customer’s nominated address even if the Customer is not present at the address.
6.2 Delivery of the Equipment to a third party nominated by the Customer is deemed to be delivery to the Customer for the purposes of this agreement.
6.3 At HLF’s sole discretion the cost of delivery is either included in the Price or is in addition to the Price.
6.4 HLF may deliver the Goods/Equipment in separate instalments. Each separate instalment shall be invoiced and paid in accordance with the provisions in these terms and conditions.
6.5 Any time specified by HLF for delivery of the Goods/Equipment is an estimate only and HLF will not be liable for any loss or damage incurred by the Customer as a result of delivery being late. However both parties agree that they shall make every endeavour to enable the Goods/Equipment to be delivered at the time and place as was arranged between both parties. In the event that HLF is unable to supply the Goods/Equipment as agreed solely due to any action or inaction of the Customer, then HLF shall be entitled to charge a reasonable fee for redelivery and/or storage.
7.1 The Customer shall be responsible for free access by HLF to the site on which the Equipment is located. If there are any delays due to free access not being available then the Customer shall be responsible and shall reimburse HLF for all lost hire fees associated with the Equipment being unavailable. The Customer shall also be responsible for all other expenses and costs incurred by HLF due to delays in access to the Equipment. The off-hire receipt will be issued when the Equipment is picked up by HLF or returned to HLF’s premises.
7.2 Where HLF is requested to repair or install Goods in or on vehicle or equipment, then the Customer shall ensure that HLF has clear and free access to the vehicle or equipment to enable them to undertake the Services. HLF shall not be liable for any loss or damage to the vehicle unless due to the negligence of HLF.
8.1 Risk of damage to or loss of the Goods passes to the Customer on Delivery and the Customer must insure the Goods on or before Delivery.
8.2 If any of the Goods are damaged or destroyed following delivery but prior to ownership passing to the Customer, HLF is entitled to receive all insurance proceeds payable for the Goods. The production of these terms and conditions by HLF is sufficient evidence of HLF’s rights to receive the insurance proceeds without the need for any person dealing with HLF to make further enquiries.
8.3 If the Customer requests HLF to leave Goods outside HLF’s premises for collection or to deliver the Goods to an unattended location then such Goods shall be left at the Customer’s sole risk.
8.4 HLF shall not be liable for the loss of or damage to the Customer’s Goods, its accessories or contents while being repaired or operated in connection with the authorised Services unless caused by the negligence of HLF or HLF’s employees.
8.5 It is the Customer’s responsibility to ensure that the Customer’s Goods is insured against all possible damage (including, but not limited to, the perils of accident, fire, theft and burglary and all other usual risks) whilst stored at HLF’s premises. The Goods is at all times stored and repaired at the Customer’s sole risk.
8.6 The Customer acknowledges and agree that where HLF has performed temporary repairs on the Goods that: (a) HLF offers no guarantee against the reoccurrence of the initial fault, or any further damage caused; and (b) HLF will immediately advise the Customer of the fault and shall provide the Customer with an estimate for the full repair of the Goods.
8.7 The Customer acknowledges that HLF is only responsible for parts that are repaired/replaced by HLF, and that in the event that other components subsequently fail, the Customer agrees to indemnify HLF against any loss or damage to the Goods, or caused by the components, or any part thereof howsoever arising.
8.8 The Customer acknowledges that it is their sole responsibility to ensure the Goods are insured adequately or at all.
9.1 HLF and the Customer agree that ownership of the Goods shall not pass until: (a) the Customer has paid HLF all amounts owing to HLF; and (b) the Customer has met all of its other obligations to HLF.
9.2 Receipt by HLF 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.
9.3 It is further agreed that until ownership of the Goods passes to the Customer in accordance with clause 9.1: (a) the Customer is only a bailee of the Goods and must return the Goods to HLF on request. (b) the Customer holds the benefit of the Customer’s insurance of the Goods on trust for HLF and must pay to HLF the proceeds of any insurance in the event of the Goods being lost, damaged or destroyed. (c) the Customer must not sell, dispose, or otherwise part with possession of the Goods other than in the ordinary course of business and for market value. If the Customer sells, disposes or parts with possession of the Goods then the Customer must hold the proceeds of any such act on trust for HLF and must pay or deliver the proceeds to HLF on demand. (d) the Customer should not convert or process the Goods or intermix them with other goods but if the Customer does so then the Customer holds the resulting product on trust for the benefit of HLF and must sell, dispose of or return the resulting product to HLF as it so directs. (e) the Customer irrevocably authorises HLF to enter any premises where HLF believes the Goods are kept and recover possession of the Goods. (f) HLF may recover possession of any Goods in transit whether or not delivery has occurred. (g) the Customer shall not charge or grant an encumbrance over the Goods nor grant nor otherwise give away any interest in the Goods while they remain the property of HLF. (h) HLF may commence proceedings to recover the Price of the Goods sold notwithstanding that ownership of the Goods has not passed to the Customer.
10.1 In this clause financing statement, financing change statement, security agreement, and security interest has the meaning given to it by the PPSA.
10.2 Upon assenting to these terms and conditions in writing the Customer 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 Goods/Equipment and/or collateral (account) – being a monetary obligation of the Customer to HLF for Services – that have previously been supplied and that will be supplied in the future by HLF to the Customer.
10.3 The Customer 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 HLF may reasonably require to; (i) register a financing statement or financing change statement in relation to a security interest on the Personal Property Securities Register; (ii) register any other document required to be registered by the PPSA; or (iii) correct a defect in a statement referred to in clause 10.3(a)(i) or 10.3(a)(ii); (b) indemnify, and upon demand reimburse, HLF for all expenses incurred in registering a financing statement or financing change statement on the Personal Property Securities Register established by the PPSA or releasing any Goods/Equipment charged thereby; (c) not register a financing change statement in respect of a security interest without the prior written consent of HLF; (d) not register, or permit to be registered, a financing statement or a financing change statement in relation to the Goods/Equipment and/or collateral (account) in favour of a third party without the prior written consent of HLF; (e) immediately advise HLF of any material change in its business practices of selling Goods which would result in a change in the nature of proceeds derived from such sales.
10.4 HLF and the Customer agree that sections 96, 115 and 125 of the PPSA do not apply to the security agreement created by these terms and conditions.
10.5 The Customer waives their rights to receive notices under sections 95, 118, 121(4), 130, 132(3)(d) and 132(4) of the PPSA.
10.6 The Customer waives their rights as a grantor and/or a debtor under sections 142 and 143 of the PPSA.
10.7 Unless otherwise agreed to in writing by HLF, the Customer waives their right to receive a verification statement in accordance with section 157 of the PPSA.
10.8 The Customer must unconditionally ratify any actions taken by HLF under clauses 10.3 to 10.5.
10.9 Subject to any express provisions to the contrary (including those contained in this clause 10), nothing in these terms and conditions is intended to have the effect of contracting out of any of the provisions of the PPSA.
10.10 Only to the extent that the hire of the Equipment exceeds a two (2) year hire period with the right of renewal shall clause 10 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 10 will apply generally for the purposes of the PPSA.
11.1 In consideration of HLF agreeing to supply the Goods/Equipment, the Customer 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 Customer either now or in the future, to secure the performance by the Customer of its obligations under these terms and conditions (including, but not limited to, the payment of any money).
11.2 The Customer indemnifies HLF from and against all HLF’s costs and disbursements including legal costs on a solicitor and own client basis incurred in exercising HLF’s rights under this clause.
11.3 The Customer irrevocably appoints HLF and each director of HLF as the Customer’s true and lawful attorney/s to perform all necessary acts to give effect to the provisions of this clause 11 including, but not limited to, signing any document on the Customer’s behalf.
12.1 The Customer must inspect the Goods/Equipment on delivery and must within two (2) days of delivery notify HLF in writing of any evident defect/damage, shortage in quantity, or failure to comply with the description or quote. The Customer must notify any other alleged defect in the Goods/Equipment as soon as reasonably possible after any such defect becomes evident. Upon such notification the Customer must allow HLF to inspect the Goods/Equipment.
12.2 Under applicable State, Territory and Commonwealth Law (including, without limitation the CCA), certain statutory implied guarantees and warranties (including, without limitation the statutory guarantees under the CCA) may be implied into these terms and conditions (Non-Excluded Guarantees).
12.3 HLF acknowledges that nothing in these terms and conditions purports to modify or exclude the Non-Excluded Guarantees.
12.4 Except as expressly set out in these terms and conditions or in respect of the Non-Excluded Guarantees, HLF makes no warranties or other representations under these terms and conditions including but not limited to the quality or suitability of the Goods/Equipment. HLF’s liability in respect of these warranties is limited to the fullest extent permitted by law.
12.5 If the Customer is a consumer within the meaning of the CCA, HLF’s liability is limited to the extent permitted by section 64A of Schedule 2.
12.6 If HLF is required to replace the Goods under this clause or the CCA, but is unable to do so, HLF may refund any money the Customer has paid for the Goods.
12.7 If the Customer is not a consumer within the meaning of the CCA, HLF’s liability for any defect or damage in the Goods is: (a) limited to the value of any express warranty or warranty card provided to the Customer by HLF at HLF’s sole discretion; (b) limited to any warranty to which HLF is entitled, if HLF did not manufacture the Goods; (c) otherwise negated absolutely.
12.8 Subject to this clause 12, returns will only be accepted provided that: (a) the Customer has complied with the provisions of clause 12.1; and (b) HLF has agreed that the Goods are defective; and (c) the Goods are returned within a reasonable time at the Customer’s cost (if that cost is not significant); and (d) the Goods are returned in as close a condition to that in which they were delivered as is possible.
12.9 Notwithstanding clauses 12.1 to 12.8 but subject to the CCA, HLF 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 Customer failing to properly maintain or store any Goods/Equipment; (b) the Customer using the Goods/Equipment for any purpose other than that for which they were designed; (c) the Customer continuing the use of the Goods/Equipment after any defect became apparent or should have become apparent to a reasonably prudent operator or user; (d) the Customer failing to follow any instructions or guidelines provided by HLF; (e) fair wear and tear, any accident, or act of God.
12.10 Notwithstanding anything contained in this clause if HLF is required by a law to accept a return then HLF will only accept a return on the conditions imposed by that law.
13.1 Where HLF has designed, drawn or developed Goods/Equipment for the Customer, then the copyright in any designs and drawings and documents shall remain the property of HLF. Under no circumstances may such designs, drawings and documents be used without the express written approval of HLF.
13.2 The Customer warrants that all designs, specifications or instructions given to HLF will not cause HLF to infringe any patent, registered design or trademark in the execution of the Customer’s order and the Customer agrees to indemnify HLF against any action taken by a third party against HLF in respect of any such infringement.
13.3 The Customer agrees that HLF may (at no cost) use for the purposes of marketing or entry into any competition, any documents, designs, drawings or Goods/Equipment which HLF has created for the Customer.
14.1 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 a half percent (2.5%) per calendar month (and at HLF’s sole discretion such interest shall compound monthly at such a rate) after as well as before any judgment.
14.2 If the Customer owes HLF any money the Customer shall indemnify HLF from and against all costs and disbursements incurred by HLF in recovering the debt (including but not limited to internal administration fees, legal costs on a solicitor and own client basis, HLF’s contract default fee, and bank dishonour fees).
14.3 Further to any other rights or remedies HLF may have under this contract, if a Customer has made payment to HLF, and the transaction is subsequently reversed, the Customer shall be liable for the amount of the reversed transaction, in addition to any further costs incurred by HLF under this clause 14 where it can be proven that such reversal is found to be illegal, fraudulent or in contravention to the Customer’s obligations under this contract.
14.4 Without prejudice to HLF’s other remedies at law HLF shall be entitled to cancel all or any part of any order of the Customer which remains unfulfilled and all amounts owing to HLF shall, whether or not due for payment, become immediately payable if: (a) any money payable to HLF becomes overdue, or in HLF’s opinion the Customer will be unable to make a payment when it falls due; (b) the Customer has exceeded any applicable credit limit provided by HLF; (c) the Customer 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 Customer or any asset of the Customer.
15.1 Without prejudice to any other remedies HLF may have, if at any time the Customer is in breach of any obligation (including those relating to payment) under these terms and conditions HLF may suspend or terminate the supply of Goods/Equipment to the Customer. HLF will not be liable to the Customer for any loss or damage the Customer suffers because HLF has exercised its rights under this clause.
15.2 HLF may cancel any contract to which these terms and conditions apply or cancel delivery of Goods/Equipment at any time before the Goods/Equipment are delivered by giving written notice to the Customer. On giving such notice HLF shall repay to the Customer any money paid by the Customer for the Goods/Equipment. HLF shall not be liable for any loss or damage whatsoever arising from such cancellation.
15.3 In the event that the Customer cancels delivery of Goods/Equipment the Customer shall be liable for any and all loss incurred (whether direct or indirect) by HLF as a direct result of the cancellation (including, but not limited to, any loss of profits).
15.4 Cancellation of orders for Goods/Equipment made to the Customer’s specifications, or for non-stocklist items, will definitely not be accepted once production has commenced, or an order has been placed.
16.1 The Customer agrees for HLF to obtain from a credit reporting body (CRB) a credit report containing personal credit information (e.g. name, address, D.O.B, occupation, previous credit applications, credit history) about the Customer in relation to credit provided by HLF.
16.2 The Customer agrees that HLF may exchange information about the Customer with those credit providers and with related body corporates for the following purposes: (a) to assess an application by the Customer; and/or (b) to notify other credit providers of a default by the Customer; and/or (c) to exchange information with other credit providers as to the status of this credit account, where the Customer is in default with other credit providers; and/or (d) to assess the creditworthiness of the Customer including the Customer’s repayment history in the preceding two (2) years.
16.3 The Customer consents to HLF being given a consumer credit report to collect overdue payment on commercial credit.
16.4 The Customer agrees that personal credit information provided may be used and retained by HLF for the following purposes (and for other agreed purposes or required by): (a) the provision of Goods/Equipment; and/or (b) analysing, verifying and/or checking the Customer’s credit, payment and/or status in relation to the provision of Goods/Equipment; and/or (c) processing of any payment instructions, direct debit facilities and/or credit facilities requested by the Customer; and/or (d) enabling the collection of amounts outstanding in relation to the Goods/Equipment.
16.5 HLF may give information about the Customer 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 Customer including credit history.
16.6 The information given to the CRB may include: (a) personal information as outlined in 16.1 above; (b) name of the credit provider and that HLF is a current credit provider to the Customer; (c) whether the credit provider is a licensee; (d) type of consumer credit; (e) details concerning the Customer’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 Customer no longer has any overdue accounts and HLF has been paid or otherwise discharged and all details surrounding that discharge(e.g. dates of payments); (g) information that, in the opinion of HLF, the Customer has committed a serious credit infringement; (h) advice that the amount of the Customer’s overdue payment is equal to or more than one hundred and fifty dollars ($150).
16.7 The Customer shall have the right to request (by e-mail) from HLF: (a) a copy of the information about the Customer retained by HLF and the right to request that HLF correct any incorrect information; and (b) that HLF does not disclose any personal information about the Customer for the purpose of direct marketing.
16.8 HLF will destroy personal information upon the Customer’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.
16.9 The Customer can make a privacy complaint by contacting HLF via e-mail. HLF 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 Customer is not satisfied with the resolution provided, the Customer can make a complaint to the Information Commissioner at www.oaic.gov.au.
17.1 Where the Customer has left any item with HLF for repair, modification, exchange or for HLF to perform any other service in relation to the item and HLF has not received or been tendered the whole of any monies owing to it by the Customer, HLF shall have, until all monies owing to HLF are paid: (a) a lien on the item; and (b) the right to retain or sell the item, such sale to be undertaken in accordance with any legislation applicable to the sale or disposal of uncollected goods.
17.2 The lien of HLF shall continue despite the commencement of proceedings, or judgment for any monies owing to HLF having been obtained against the Customer.
18.1 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.
18.2 These terms and conditions and any contract to which they apply shall be governed by the laws of the state in which HLF has its principal place of business, and are subject to the jurisdiction of the courts in that state.
18.3 Subject to clause 12 HLF shall be under no liability whatsoever to the Customer for any indirect and/or consequential loss and/or expense (including loss of profit) suffered by the Customer arising out of a breach by HLF of these terms and conditions (alternatively HLF’s liability shall be limited to damages which under no circumstances shall exceed the Price of the Goods).
18.4 HLF may licence and/or assign all or any part of its rights and/or obligations under this contract without the Customer’s consent.
18.5 The Customer cannot licence or assign without the written approval of HLF.
18.6 HLF may elect to subcontract out any part of the Services but shall not be relieved from any liability or obligation under this contract by so doing. Furthermore, the Customer agrees and understands that they have no authority to give any instruction to any of HLF’s sub- contractors without the authority of HLF.
18.7 The Customer agrees that HLF may amend these terms and conditions by notifying the Customer in writing. These changes shall be deemed to take effect from the date on which the Customer accepts such changes, or otherwise at such time as the Customer makes a further request for HLF to provide Goods to the Customer.
18.8 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.
18.9 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.
19.1 For Equipment in which a timing device is installed the hire period shall be the number of hours or part thereof recorded on the timing device whilst the Equipment is in the Customer’s possession.
19.2 Where the Equipment does not have a timing device installed hire charges shall commence from the time the Equipment is collected by the Customer from HLF’s premises and will continue until the return of the Equipment to HLF’s premises, and/or until the expiry of the Minimum Hire Period, whichever last occurs.
19.3 If HLF agrees with the Customer to deliver and/or collect the Equipment, hire charges shall commence from the time the Equipment leaves HLF’s premises and continue until the Customer notifies HLF that the Equipment is available for collection, and/or until the expiry of the Minimum Hire Period, whichever last occurs.
19.4 The date upon which the Customer advises of termination shall in all cases be treated as a full day’s hire.
19.5 No allowance whatsoever can be made for time during which the Equipment is not in use for any reason, unless HLF confirms special prior arrangements in writing. In the event of Equipment breakdown provided the Customer notifies HLF immediately, hiring charges will not be payable during the time the Equipment is not working, unless the condition is due to negligence or misuse on the part of or attributable to the Customer.
20.1 HLF retains property in the Equipment nonetheless all risk for the Equipment passes to the Customer on delivery.
20.2 The Customer accepts full responsibility for the safekeeping of the Equipment and indemnifies HLF for all loss, theft, or damage to the Equipment howsoever caused and without limiting the generality of the foregoing whether or not such loss, theft, or damage is attributable to any negligence, failure, or omission of the Customer.
20.3 The Customer will insure, or self-insure, HLF’s interest in the Equipment against physical loss or damage including, but not limited to, the perils of accident, fire, theft and burglary and all other usual risks and will effect adequate Public Liability Insurance covering any loss, damage or injury to property arising out of the Equipment. Further the Customer will not use the Equipment nor permit it to be used in such a manner as would permit an insurer to decline any claim.
20.4 The Customer accepts full responsibility for and shall keep HLF indemnified against all liability in respect of all actions, proceedings, claims, damages, costs and expenses in respect of any injury to persons, damage to property, or otherwise arising out of the use of the Equipment during the hire period and whether or not arising from any negligence, failure or omission of the Customer or any other persons.
21.1 The Equipment is and will at all times remain the absolute property of HLF.
21.2 If the Customer fails to return the Equipment to HLF then HLF or HLF’s agent may (as the invitee of the Customer) enter upon and into land and premises owned, occupied or used by the Customer, or any premises where the Equipment is situated and take possession of the Equipment.
21.3 The Customer is not authorised to pledge HLF’s credit for repairs to the Equipment or to create a lien over the Equipment in respect of any repairs.
22.1 The Customer shall: (a) maintain the Equipment as is required by HLF (including, but not limited to, maintaining water, oil and fluid levels and tyre pressures); (b) notify HLF immediately by telephone of the full circumstances of any mechanical breakdown or accident. The Customer is not absolved from the requirements to safeguard the Equipment by giving such notification; (c) satisfy itself at commencement that the Equipment is suitable for its purposes; (d) operate the Equipment safely, strictly in accordance with the law, only for its intended use, and in accordance with any manufacturer’s instruction whether supplied by HLF or posted on the Equipment; (e) ensure that all persons operating or erecting the Equipment are suitably instructed in its safe and proper use and where necessary hold a current Certificate of Competency and/or are fully licensed to operate the Equipment and shall provide evidence of the same to HLF upon request; (f) comply with all work health and safety laws relating to the Equipment and its operation; (g) on termination of the hire, deliver the Equipment complete with all parts and accessories, clean and in good order as delivered, fair wear and tear accepted, to HLF; (h) keep the Equipment in their own possession and control and shall not assign the benefit of the hire contract nor be entitled to lien over the Equipment; (i) not alter or make any additions to the Equipment including but without limitation altering, make any additions to, defacing or erasing any identifying mark, plate or number on or in the Equipment or in any other manner interfere with the Equipment; (j) employ the Equipment solely in its own work and shall not permit the Equipment or any part thereof to be used by any other party for any other work; (k) not exceed the recommended or legal load and capacity limits of the Equipment; (l) not use or carry any illegal, prohibited or dangerous substance in or on the Equipment; (m) not fix any of the Equipment in such a manner as to make it legally a fixture forming part of any freehold;
22.2 Immediately on request by HLF the Customer will pay: (a) the new list price of any Equipment that is for whatever reason destroyed, written off or not returned to HLF; (b) all costs incurred in cleaning the Equipment; (c) all costs of repairing any damage caused by the ordinary use of the Equipment up to an amount equal to ten percent (10%) of the new list price of the Equipment; (d) the cost of repairing any damage to the Equipment caused by the negligence of the Customer or the Customer’s agent; (e) any lost hire fees HLF would have otherwise been entitled to for the Equipment, under this, or any other hire agreement; (f) the cost of repairing any damage to the Equipment caused by vandalism, or (in HLF’s reasonable opinion) in any way whatsoever other than by the ordinary use of the Equipment by the Customer; (g) the cost of fuels and consumables provided by HLF and used by the Customer.
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