PARTIES
Ausdig of 177/179 South Terrace Wingfield, SA 5089 and the Hirer (“Hirer”)
1. DEFINITIONS
In these conditions of contract:
Acceptance means the signing of the Quote or the commencement of the Hire Services, whichever is the earlier.
Ausdig means Ausdig (SA) Pty Ltd (ACN 126 654 251) its successors, assigns or Related Entities within the meaning of the Corporations Act 2001 (Cth).
Contract means the contract for supply of Hire Services between the parties described on the Quote and comprises in its entirety the Quote, these Terms and Conditions, and the Documents (if any) in that order of priority.
Consequential Loss means any loss other than direct loss and to avoid doubt, includes loss of profit, loss of revenue, loss of interest, financing charges, payment or loss of rent, loss of opportunity, consultant costs, and loss of contract.
Equipment means the items of plant or tools being supplied by Ausdig as part of the Hire Services.
Hire Period means the dates stated on the Quote (if any) for which the Hire Services will be provided or as may be extended in writing by agreement with Ausdig.
Hire Services means the equipment and/or associated labour (including any part of them) to be delivered by Ausdig or provided to the Hirer as part of the Contract, as applicable, and as described in the Quote or the Documents.
Hirer means the party named in the Quote and for whom the Hire Services are being carried out or provided.
Documents means any documents incorporated into the Contract as listed in the Quote or appended to these terms and conditions of Contract including any Schedule of Rates.
Laws includes all acts, regulations, by-laws, and licenses, permits and industry standards, relevant to the supply of the Hire Services.
Loss means liability incurred as a result of any prosecution, claim, demand, cause of action, arbitration, adjudication, debt, judgment, cost, expense or entitlement to payment whether past, present contingent or prospective arising at law, in equity or under statute.
Operator means any labour provided by Ausdig pursuant to the Quote to operate Equipment.
Price means the charges set out in the Quote as may be adjusted from time to time in accordance with the Contract and will include any minimum charge prescribed by Ausdig, will be in Australian Dollars and will exclude GST.
Quote means the document as issued by Ausdig to the Hirer confirming the Site, the Price and the scope of the Hire Services. All Quotes will remain valid and open for Acceptance for a period of 30 days from issue and, if not accepted within that period may be revised at the absolute discretion of Ausdig.
Site means the address where the Hire Services set out in the Quote are to be delivered or provided as the case may be.
Start Date means the start date nominated in the Quote as the date upon which the Hire Services will commence but, if no date is stated, it means the first day on which Ausdig commences the Hire Services.
Terms and Conditions means the terms and conditions set out below which may be amended from time to time without notice
Variation means a direction by the Hirer to change (increase or decrease) the nature or scope of the Hire Services.
2. CONDITIONS APPLYING TO THE HIRE SERVICES
2.1 These Terms and Conditions apply to the Hire Services to the exclusion of any other terms and conditions.
2.2 This Contract comprises the entire agreement between the parties about the subject matter of the Contract and supersedes all other representations, negotiations, arrangements, understandings or agreements and all other prior communications.
3. PERFORMANCE OF HIRE SERVICES
3.1 Ausdig will:
(a) at all times during the performance of the Hire Services be properly licensed and resourced.
(b) supply (if any) personnel with the appropriate qualifications and licenses.
(c) supply Equipment that is of satisfactory quality and fit for purpose.
(d) allow the Hirer to use the Equipment during the Hire Period.
3.2 The Hirer Must:
(a) provide clear access and uninterrupted possession of the areas of the Site required for the performance of the Hire Services.
(b) use the Equipment in a skilful, safe and proper manner and in accordance with all Laws
(b) at its own expense clean and maintain the Equipment in good and substantial repair and condition during the Hire Period;
(c) provide a safe working environment together with any utilities or facilities required for carrying out the Hire Services.
(d) ensure that all Operators of the Equipment will:
(i) be appropriately qualified and experienced;
(ii) hold all relevant and applicable licences;
(iii) be fully inducted as to the proper use of and occupational health and safety risks of the Equipment.
(e) provide a safe and secure compound for the storage of Equipment after hours.
(f) not delay or interfere with the carrying out of the Hire Services.
(g) obtain the rights, permits or approvals required for, or any access required to the Site or any adjoining properties for performance of the Hire Services.
(h) pay the Price in accordance with Ausdig’s standard terms of payment as stated on the Quote.
3.3 The Hirer acknowledges and agrees that:
(a) the Hire Period may be extended by the length of time that Ausdig is delayed by matters beyond their control.
(b) all Hire Services involving labour are to be carried out during normal working hours – Monday to Friday, 7.00am to 3.30 pm excluding public holidays with overtime penalties to be charged outside of those hours.
(c) any Hire Services agreed to be performed outside of normal working hours (as defined in 3.3(b) above) will incur additional charges.
(d) the Hirer will have no Claim against Ausdig for any delays to the Hire Period that may occur as a result of inclement weather, unforeseen Site conditions or any delay beyond the reasonable control of the Ausdig.
(e) Ausdig is not responsible for damage to the Hirer’s property where the damage is an unavoidable or likely result of the Hire Services.
(f) any breach of the warranties set out in clause 3.2 above will entitle Ausdig to claim and be paid for loss and damage incurred, including but not limited to stand down costs, demobilisation, remobilisation and any costs incurred in furtherance of the Works (such as accommodation and/or labour) which cannot reasonably be mitigated or avoided.
4. NON-COMPLIANT HIRE SERVICES
4.2 If, during the Hire Period, the Hirer believes that any Equipment supplied or any aspect of the Hire Services performed by Ausdig do not comply with the Contract, the Hirer:
(a) must notify Ausdig in writing, providing details of the non-compliance as soon as reasonably possible and in any event within 3 days;
(b) must give Ausdig all reasonable opportunities to inspect and replace, repair, or rectify the Equipment or the Hire Services as necessary.
(c) will not be entitled to recover any amount from Ausdig in the event that it undertakes any remedial action themselves or by others without the prior written knowledge and approval of Ausdig.
(d) must not, in any circumstance attempt to repair any item of Equipment without the written approval of Ausdig.
4.3 Ausdig may, at any time, substitute Equipment to be supplied as part of the Hire Services with Equipment of equivalent standard
5. LIMITATION OF LIABILITY
5.1 Ausdig’s liability in respect of any non-compliant or defective Equipment or Hire Services is limited to the supply or replacement of the non-compliant or defective Equipment Hire Services (in its absolute discretion).
5.2 The Hirer agrees to indemnify and hold Ausdig harmless in respect of any Loss or damage incurred or damage occasioned to the Equipment as a result of the wrongdoing of the Hirer, the Hirer’s agents, employees or assigns except insofar as that wrongdoing is caused or to the extent contributed to by Ausdig.
5.3 The Hirer must notify Ausdig in writing of an
5.6 The parties acknowledge and agree that neither will be liable for any Consequential Loss suffered or incurred by the other.
6. VARIATIONS
6.1 The Hirer may, at any time before the Hire Services are complete, request Ausdig to vary the Hire Services by asking for extra work or a change to the Hire Services (including sequencing change requests or a change of Equipment) (“Variation Work”).
6.2 The parties acknowledge and agree that:
(a) Ausdig, in its absolute discretion may either accept or reject a request for Variation Work; and
(b) if accepted by Ausdig, the Hirer acknowledges and agrees that it will be liable to pay for any Variation Work carried out by Ausdig on the same payment terms as that set out in the Quote or as otherwise requested by Ausdig.
(c) delays to the progression of the Hire Services as a result of the actions or omissions of the Hirer, its contractors or consultants (other than Ausdig) will entitle Ausdig to claim and be paid its actual costs of remaining on Site longer than anticipated as Variation Work;
(d) Ausdig will be entitled to claim, as a Variation to its Price and in its absolute discretion, a surcharge for the actual cost of fuel consumed in carrying out the Hire Services above $2.00 per litre.
6.2 The Hirer may request Ausdig to give a detailed Quote for proposed Variation Work.
6.3 Variation Work will be valued using the following order of precedence:
(a) Ausdig’s Quote; or;
(b) if there is no Quote, using applicable rates or prices set out in the Contract; or
(c) if no rates or prices are set out in the Contract, using reasonable construction industry rates or prices.
7. PRICE
7.1 The Price of the Hire Services is as stated in the Quote. The Price may (and likely will) change due to:
(a) Variation Hire Services;
(b) unforeseen site conditions including (but not limited to) subsurface conditions, contamination, drains, groundwater, the condition of existing structures (including the identification of asbestos), existing services or damage that were not apparent prior to the Start Date
7.2 No retention will be applicable to the Price either during the course of the Hire Services being carried out or after the Hire Period without the written acceptance and approval of Ausdig.
7.3 No liquidated damages will be applicable under the Contract for delays or generally.
8. TERMS OF PAYMENT
8.1 Ausdig’s terms of payment are as set out in the Quote.
8.2 If no terms of payment are noted in the Quote, Ausdig may submit progressive invoices (“Progress Claims”) to the Hirer for payment during the course of the Hire Services with all invoices rendered being payable in full within 7 days. The final Progress Claim for the Price will be payable on or before the expiration of the Hire Period.
8.3 Ausdig may require upfront payment for its minimum charge.
8.4 Cancellations or rescheduling of Hire Services made with less than 1 Business Day notice may incur a fee to cover lost time, equipment mobilisation and/or material handling costs.
8.5 Operators will record the details of each shift worked into VARICON or in a paper docket book at its discretion.
8.6 The Hirer may confirm hours worked at the end of each shift by hard copy signature in docket books or by electronic signature in VARICON (as the case may be) but noting that the failure by the Hirer to confirm by signature (whether hard copy or electronic) will not invalidate Ausdig’s claim for payment for the hours as recorded.
8.7 The Hirer acknowledges and agrees that unless and until payment of the Price in full, as may be varied from time to time, the performance of the Hire Services creates an equitable interest in the property on which the Hire Services have been carried out, which interest is able to be secured by lien or caveat.
8.8 Interest will be payable on overdue Progress Claims at 15% per annum and applied on a weekly basis and any collection or enforcement charges incurred by Ausdig in respect of Progress Claims will be recoverable from the Hirer on an indemnity basis.
8.9 Ausdig is conscious that cyber-crime is prolific. You will not be asked to provide bank account details in an email from Ausdig and we will not provide you with our bank account details in the body of an email. If you receive an email from us either containing bank account details or requesting your bank account details, please contact our office immediately and we will promptly refer the email for investigation. All bank details should be confirmed with our office by phone prior to payments being made, failing which we assume no liability for payments to incorrect bank accounts.
9. INSURANCE AND INDEMNITY
9.1 Ausdig will:
a) maintain appropriate policy(s) of insurance;
b) ensure that any employees engaged in the performance of the Hire Services are registered with WorkCover SA or equivalent body in the applicable state, territory or country; and
(c) insure the safe carriage and delivery of all Equipment to the Site.
9.2 The Hirer must hold:
a) a current policy of public liability insurance for the Site and provide proof of the same on request of Ausdig; and
b) appropriate policies of insurance that will indemnify Ausdig in the event of loss from fire or theft of Equipment during the Hire Period.
10. RETURN OF EQUIPMENT
10.1 The Hirer must on or before the expiration of the Hire Period or on termination by Ausdig return the Equipment to Ausdig clean, in good order and repair and in the same condition as it was at the commencement date, subject to reasonable fair wear and tear.
10.2 If the Hirer notifies Ausdig in writing that the Equipment is available for return at a particular place, Ausdig shall cause the Equipment to be picked up within five (5) days after receipt of such notification..
10.3 If the Hirer does not return the Equipment as required by this clause within 8 hours of the end of the Hire Period or termination by Ausdig:
a) Ausdig will be entitled to enter the Site at which the Equipment is and take control of the same.
b) The Hire Period is deemed to be extended until the time at which the Equipment is returned to Ausdig, and the Hirer will continue to pay Ausdig the hire amount until the Equipment has been returned to Ausdig.
c) If Equipment is lost or damaged requiring replacement, hire charges shall cease only when the Hirer pays Ausdig for the lost or damaged Equipment. In addition to any hire charges the Hirer shall be responsible for all freight and other charges, costs and damages.
d) The Hirer will pay any applicable delivery and return fees.
11. Wet Hire
11.1 The wet hire of Equipment (that is with an Operator supplied by Ausdig) (Wet Hire) is subject to the following additional conditions:
a) All location specific requirements including but not limited to safety inspections, testing, cleaning and decontamination at the location are at the Hirer’s expense;
b) Only Ausdig Operators may operate or service the Wet Hire Equipment;
c) Ausdig’s Operator is subject only to reasonable direction by the Hirer as to the nature of the works performed with the Equipment. Methodology, timing and sequencing is at the absolute discretion of Ausdig;
d) Wet Hire Equipment will be subject to the following cost structure:
i) Minimum daily charge of 4 hours for labour and Equipment hire at the rates specified by Ausdig (as may change from time to time).
ii) If Ausdig’s operator attends or travels towards site (despite inclement weather), this minimum charge will be payable by the Hirer at Ausdig’s discretion.
iii) Any hours spent by Ausdig’s Operator in excess of four hours on site will be charged at the labour and equipment hire rate specified by Ausdig (as may change from time to time).
iv) Ausdig’s Operator time spent in the site inductions, site meetings, administration and site breaks is at the Hirer’s expense.
v) Any work outside of normal work hours (7am-3.30pm Monday-Friday) will be subject to overtime rates.
d) Fuel is to be supplied or paid for by the Hirer unless otherwise agreed in writing.
11.2 The Hirer is responsible for location and identification of existing underground services and infrastructure to the Ausdig operators, including obtaining all relevant permits or licences to dig. (including by references to Dial Before you Dig plan requests) (“Underground Services”).
11.3 Ausdig will not be responsible for any damage caused to Underground Services during the carrying out of the Hire Services unless Ausdig has acted unreasonably or has carried out work which is not in accordance with accepted trade practices.
11.4 The Hirer will be responsible for, and Ausdig may require payment for, the cost of repairing or replacing any damaged Underground Services.
12. INTELLECTUAL PROPERTY
12.1 The Hirer acknowledges and agrees that Ausdig may use images of the Hire Services as carried out and completed as part of its on-line advertising, social media or website (without disclosing either the identity of the Hirer or the address of the Site).
13. TERMINATION
13.1 Ausdig may suspend or terminate the Hire Services without cause and in its complete discretion by the giving of written notice.
13.2 In the event of suspension or termination under clause 11.1, Ausdig will be entitled to payment by the Hirer for all costs reasonably incurred to the date of termination or suspension.
13.3 Either party may terminate the Contract for a substantial breach of contract by the other party, provided that the party who intends to terminate the Contract has first written to the other party:
(a) notifying that other party that it intends to terminate the Contract;
(b) specifying the substantial breach complained of; and
(c) giving the other party a reasonable opportunity to rectify the substantial breach (and in any event no less than 7 days).
13.4 To the extent permitted by Law, either party may terminate the Contract when the other party is Insolvent by giving written notice to that party.
14. GENERAL
14.1 The Contract is governed by the Laws of South Australia and the parties submit to the exclusive jurisdiction of the South Australian courts or, where applicable, the Federal Court of Australia.
14.2 Neither party may assign this agreement without the consent of the other party, such consent not to be unreasonably withheld.
14.3 The Hirer acknowledges and agrees that it has had the opportunity to obtain legal advice in relation to the force and effect of the Contract.
14.4 If a clause in this Contract is void, illegal or unenforceable, it may be severed without affecting the other provisions of this Contract.’
15. PPSA SECURITY INTERESTS
15.1 The Hirer acknowledges and agrees that the Contract creates a security interest (“Security Interest”) within the meaning of the Personal Property Securities Act 2009 (Cth) (PPSA) in favour of Ausdig in any goods, plant or equipment to be supplied to the Hirer under this Contract (“Collateral”) and that each Security Interest is registrable on the PPSA register.
15.2 The Hirer agrees to do all things (such as obtaining consents, signing and producing documents, getting documents completed and signed) and to provide all information reasonably necessary for Ausdig to:
a) ensure that each Security Interest is enforceable, perfected and otherwise effective;
b) enable Ausdig to register that Collateral on the PPS Register, with the highest-ranking priority possible; and
c) enable Ausdig to exercise rights in connection with that Security Interest.
15.3 The Hirer warrants that no Security Interest created by this Contract is subject to any prior Security Interest that ranks in priority.
15.4 If the Hirer is in default of its obligations of payment under this Contract or this clause 13, Ausdig will be entitled to enter the premises where any Collateral is stored to retrieve it and may deal with such Collateral without the Hirer’s consent.
16. DISPUTE RESOLUTION
16.1 A dispute may be raised by either party in writing to the other party. Representatives of both parties are to meet within 7 days of the notice to resolve or determine a resolution process. Should the dispute remain unresolved following the representatives’ meeting, either party may then, by written notice to the other, refer the dispute to a formal mediation. The Resolution Institute Rules of Mediation will apply (as are current at that time).
16.2 Neither party may commence legal proceedings prior to compliance with clause 15.1, except to seek urgent injunctive relief.
17. FORCE MAJEURE EVENT
17.1 Force Majeure Event means any exceptional event or circumstance which is outside of the control of the party affected and has occurred without the fault or negligence of the party affected including but not limited to earthquakes, fire, flood or other physical natural disaster, epidemic or pandemic, hostilities or acts of war. acts of terrorism, sabotage, riots, civil or military disturbances.
17.2 The occurrence of a Force Majeure Event will entitle Ausdig to extend the time for performance of the Hire Services for the duration of that event; and either party to terminate the Contract by the giving of written notice if the Force Majeure Event
