APPLICATION TO OPEN A CREDIT ACCOUNT

Chadwick Forklifts P/L Rental/Service Agreement and Account Terms and Conditions

Note to Customer: You should read these Terms and Conditions very carefully. They contain terms and conditions which may impact you, including that:

• the liability of the Owner to the Customer is excluded in some circumstances; and
• the Customer may be liable for damage to goods that it has hired.

Amendment: These Terms and Conditions may be changed by the Owner from time to time by the Owner giving notice of the amendment to the Customer. Notice is deemed when the Owner does any of the following:

• sends notice of the amendment to the Customer at any address (including an email address) supplied by the Customer;
• publishes the amended terms on its website; or
• displays the amended terms at premises from which the Owner conducts hire operations.

Changes to these Terms and Conditions will only apply to Hire Schedules entered into after the change has been notified to the Customer by one of the methods mentioned above.

1. DEFINITIONS

• Owner / Company is Chadwick Forklifts Pty Ltd (ABN 18 690 771 567).
• Commencement means the date and time when the Customer takes possession of the Equipment.
• Customer refers to the person, firm, organisation, partnership, corporation or other entity hiring the Equipment from the Owner, as identified in the Hire Schedule.
• Equipment means all items provided by the Owner to the Customer under the Hire Agreement, including accessories, parts and attachments.
• Hire means the hire of the Equipment pursuant to the Hire Agreement.
• Hire Agreement has the meaning given in clause 2(a) of these Terms and Conditions.
• Hire Charge means the total contract amount shown in the Hire Schedule payable by the Customer to hire the Equipment for the duration of the Hire Period.
• Hire Period means from Commencement until:
  • where the Hire is for a fixed period, the end of the period stated in the Hire Schedule; or
  • where the Hire is for a period with no fixed termination date, the date and time that the Equipment has arrived at the Owner's premises for final inspection.
  If the Hire is for a fixed period, the Hire Period may only be extended by one or more definite periods and, in each case, this can only be done if the Customer requests it and the Owner agrees. The Owner may issue an amended Hire Schedule for any extension of the Hire Period.
• Hire Schedule means a document in such form as the Owner shall require, which includes the particulars of the Equipment, the Hire Charge, the Hire Period, and such other information as the Owner may decide to include.
• PPSA means the Personal Property Securities Act 2009 (Cth) and any other legislation and regulations in respect of it, and the following words have the respective meanings given to them in the PPS Act: financing change statement, financing statement, purchase money security interest (or “PMSI”), register, registration, security interest, security agreement.
• Terms and Conditions means these terms and conditions.
• Usage means the total hours or kilometres of use for which the hire rates have been calculated, as identified in the Hire Schedule.

2. HIRE AGREEMENT

• A Hire Agreement is formed on the provision of a Hire Schedule by the Owner to the Customer (Hire Agreement). The Hire Agreement applies to all Equipment hired by the Customer.
• The Hire Agreement consists of, in order of precedence:
  • the Terms and Conditions; and
  • the Hire Schedule.
• Any terms contained in any document supplied by the Customer, including any terms in a purchase order of the Customer (or similar document), will not form part of the Hire Agreement.
• The Customer acknowledges and agrees that it remains bound by the Terms and Conditions until the later of:
  • termination or expiry of the Hire Agreement; and
  • the date and time that the Equipment has arrived at the Owner's premises for final inspection.

3. TERMS OF PAYMENT AND CHARGES

• The Hire Charge is payable in monthly instalments, in advance, for the duration of the Hire Period. On or before Commencement (or as otherwise agreed in writing with the Owner), the Customer will pay the first instalment. Thereafter, each instalment is due on the first day of the relevant month, unless stated otherwise in the Hire Schedule. The Customer must pay each instalment without set off, deduction or counterclaim.
• Immediately on request by the Owner, the Customer will pay:
  • the full cost of repairing any damage to the Equipment caused or contributed to by the Customer, unless expressly agreed in writing with the Owner;
  • all tolls, fines, penalties, levies or charges payable in respect of the Hire Agreement or arising from the Customer's use of the Equipment;
  • transportation charges, tollway charges and any expense applicable to the Owner in delivering and/or picking up the Equipment;
  • the cost of fuels and consumables provided by the Owner and not returned by the Customer;
  • where the Owner is responsible for delivery and/or pick up of the Equipment, any additional charges incurred by the Owner or its employees or agents for locating the Equipment and/or waiting for the Equipment to be made available; and
  • all reasonable expenses, including contingent expenses such as debt collection, commissions and legal costs (on a full indemnity basis), incurred by the Owner for enforcement of obligations under the Hire Agreement, including (without limitation) recovery of monies due from the Customer to the Owner.
• Where the Owner is responsible for delivery and/or pick up of the Equipment, the Owner will not be liable for loss suffered by the Customer arising from any delays or failure to deliver.
• In some instances, an insurance recovery charge is applicable to Chadwick Forklifts Pty Ltd Hire Agreements. The Owner's insurance recovery charge does not provide insurance to the Customer and will not limit the Customer's responsibility to provide insurance cover over the Equipment whilst out of the possession of the Owner.

4. SERVICING AND BREAKDOWNS

• Unless otherwise stated, the Hire Agreement covers all servicing, maintenance and breakdowns except where caused by misuse, abuse, negligence, undue wear and tear, use of the Equipment beyond its capacity, use of the Equipment for a purpose for which it was not designed, use of the Equipment for a purpose not intended or agreed to by the Owner or use of the Equipment in an environment not agreed to by the Owner.
• Where the Customer has elected to use pneumatic tyres over solid puncture proof tyres, the Customer shall be responsible for any repairs required to the Equipment due to blowouts and punctures.
• The Owner's normal hours of service are 7.30am – 4.30pm Monday – Friday excluding public holidays. An after-hours service is available at a minimum 4-hour call out fee charged at the Owner's current hourly labour rate plus parts and other expenses that may be applicable. The Owner reserves the right to use contracted labour where deemed appropriate or applicable in relation to carrying out service and repair work to the Equipment.
• The Customer agrees to make the Equipment immediately available to the Owner or its employees or agents for the purpose of conducting service or repairs as required.
• Where the Customer’s site makes it difficult to locate the Equipment for service and/or repair, the Owner may request that all repairs and services be conducted in a predesignated area agreed to by the Customer. The Customer shall be responsible for ensuring the Equipment is available in the designated area, and except where the Equipment cannot be mobilized, be liable for any lost time incurred by the Owner or its employees or agents for locating the Equipment or waiting for the Equipment to become available.
• Unless otherwise agreed to, replacement tyres are not included in the Hire Agreement.
• In the event of a breakdown, the Customer must notify the Owner immediately. Such notification does not release the Customer from its responsibility to safeguard the Equipment.
• The Customer must not attempt to repair the Equipment without the consent of the Owner.
• If the Equipment breaks down or becomes unsafe, the Customer must stop using the Equipment immediately and take all necessary steps to prevent injury to any persons or property and secure the Equipment from theft or vandalism, disconnect the battery and remove the key to avoid unauthorised use.
• Failure to perform daily checks will result in the Customer being liable for any costs to make good the Equipment if found to be caused from failure by the Customer to perform daily maintenance checks.
• The Owner shall not be responsible for any injury, expenditure, and damage to property; loss of property or any inconvenience incurred by the Customer whatsoever arising from any breakdown or failure of the Equipment.
• Repairs required that are caused by misuse, abuse, negligence, undue wear and tear, use of the Equipment beyond its capacity, use of the Equipment for a purpose for which it was not designed, use of the Equipment for a purpose not intended nor agreed to by the Owner, use of the Equipment in an environment not intended nor agreed to by the Owner, will be charged to the Customer at the Owners current hourly labour rate plus parts and other expenses incurred in making good the Equipment.

5. CUSTOMER OBLIGATIONS

The Customer must:

• prior to use of the Equipment, determine its suitability for the purpose intended;
• use the Equipment in a skilful and proper manner and only for the purpose as described in writing in the Hire Agreement by the Customer at the time of Hire;
• use the Equipment within the capacity and for the purpose for which it was designed acknowledging that the Owner cannot warrant any capacity implied or shown on the Equipment;
• ensure a suitably certified or licensed operator operates the Equipment at all times;
• ensure that all operators are trained in the daily check procedure of the Equipment;
• ensure that all operators of the Equipment perform daily checks in accordance with the manufacturer’s manual and/or as stated on any signage fixed to the Equipment by the Owner. Failure to perform daily checks will result in the Customer being liable for any costs to make good the Equipment if found to have been caused by failure to perform daily maintenance checks;
• in the case of electric powered Equipment fitted with traction batteries:
  • ensure that each cell is maintained in accordance with the manufacturer’s recommendations ensuring the battery is not over/under filled and that the top of the battery is kept clean at all times; and
  • charge traction batteries in accordance with the recommendations of the Owner and/or manufacturer of the battery acknowledging that improper charging procedures will cause damage to the battery for which the customer will be liable;
• attach to the Equipment and maintain any safety signs supplied with the Equipment and bring them to the attention of any person using the Equipment ensuring that they are clearly legible at all times;
• ensure that all safety and operating instructions and notices are observed by the operator and not defaced or removed;
• ensure that all operators of the Equipment wear suitable clothing and protective Equipment (where applicable) as recommended by the manufacturer or the Owner;
• keep the Equipment clean and free from chemicals and excessive dust or any substances that may cause corrosion and/or affect the performance or appearance of the Equipment;
• accept full responsibility for flat or damaged tyres and/or wheels, bent or broken load guards, damage to fork tynes, broken lights and indicator lenses, damage to any other accessories or attachments fitted to the Equipment including and not limited to damage to the chassis;
• clean the Equipment thoroughly on completion of the Hire. The Owner will charge an additional fee for cleaning if the Equipment is returned in a state not equal to the state that it was delivered to the Customer;
• accept full responsibility for ensuring the Equipment's and safe-keeping and indemnify the Owner against all loss, theft or damage to the Equipment however 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;
• accept full responsibility and indemnify the Owner against all claims in respect to injury to persons or loss or damage to property arising out of the delivery, servicing, storage, possession or use of the Equipment during the Hire Period arising from the acts or omissions of the Customer or its employees or agents, including (without limitation) from negligence of the Customer;
• not claim any lien over the Equipment nor sell, transfer, mortgage, charge or encumber in any way the Equipment nor, without the Owner's express written consent, part with the possession of the Equipment nor assign the benefit of the Hire Agreement;
• where the Customer has represented to the Owner that the Equipment will only be used at a particular site, the Customer will not be entitled to move the Equipment from that site (except when returning the Equipment to the Owner) without the express written approval of the Owner;
• not alter, make any addition to, deface or erase any identifying mark, plate or number on or in the Equipment or in any other manner that would interfere with the Equipment;
• on request of the Owner supply written evidence of current plant and equipment insurance covering the Equipment being hired from the Owner;
• comply with all environmental laws and immediately rectify any breach of an environmental law caused by the use of the Equipment. The Customer indemnifies and agrees to keep indemnified the Owner against any loss, cost, damage or expense arising from the use of the Equipment by the Customer or its employees or agents in breach of any environmental law;
• allow the Owner immediate access to inspect and/or service and repair the Equipment during the Hire Period and permit or procure admission for the representatives of the Owner to the premises upon which the Equipment is situated for that purpose and make available an area for the Owner or its employees or agents that is safe, away from other mobile plant and under cover in the case of inclement weather;
• promptly pay any fines, penalties and other chargers, including cost for providing registered Equipment, arising out of the use of the Equipment by the Customer or its employees or agents and must reimburse the Owner where the Owner has made such payment; and
• the Customer must return the Equipment to the Owner in the same condition and good working order as when the Customer received it. The Equipment must be returned to the premises from which it was hired during the Owner's normal hours of service (unless otherwise agreed in writing with the Owner), or, if the Owner has agreed to collect the Equipment, the Customer must ensure it is kept safe and secure until the time of collection.

6. PPSA

• The Customer acknowledges and agrees:
  • this Hire Agreement constitutes a security agreement and a PMSI for the purposes of the PPSA; and
  • a security interest is taken in all Equipment previously supplied by the Owner to the Customer (if any) and all Equipment that will be supplied in the future by the Owner to the Customer during the parties’ relationship.
• The Customer agrees to do anything (including obtaining consents, signing or producing any further documents, and/or providing any further information) which the Owner asks and considers necessary for the purposes of:
  • ensuring that the security interest is enforceable, perfected and otherwise effective; and/or
  • enabling the Owner to apply for any registration, complete any financing statement, financing change statement or give any notification, in connection with the security interest; and/or
  • enabling the Owner to exercise rights in connection with the security interest.
• The Customer waives any rights it may have:
  • to receive notices under sections 95, 118, 121(4), 130, 132(3)(d), 132(4), 134(1) and 135 and 157 of the PPSA; and
  • under sections 142 and 143 of the PPSA.
• The parties agree that sections 96 and 117 of the PPSA do not apply to these terms and conditions.
• Neither party will disclose information of the kind mentioned in section 275(1) of the PPSA, and the Customer will not authorise, and will ensure that no other party authorises, the disclosure of such information.

7. TERMINATION OF HIRE

• If the Hire Agreement is terminated before the end of the Hire Period, the Customer must pay the balance of the Hire Charge and any other monies that would have been payable for the remainder of the Hire Period. These amounts become due immediately on termination and are payable without set off, deduction or counterclaim.
• Without prejudice to any other remedies available to the Owner, the Owner may terminate this Hire Agreement:
  • At any time giving the Customer 24 hours’ notice of its intention to so terminate. Such termination to be effective as of the expiry of 24 hours or as agreed under the Hire contract;
  • if the Customer breaches any significant provision of this Hire Agreement and does not remedy the breach within a reasonable period of time (having regard to the breach);
  • if, in the Owner's reasonable opinion:
    • there is excessive damage or undue wear and tear;
    • continual misuse, abuse or negligent use of the Equipment; or
    • any circumstance arising that may adversely affect the Owner and its rights under the Terms and Conditions;
  • if the actual usage by the Customer in total hours or kilometres (as applicable) in relation to any Equipment exceeds the Usage; or
  • if the Customer has a wind up petition presented against it, or is wound up, or goes into voluntary liquidation, or commits an act of bankruptcy, or if a receiver of its assets or any of them is appointed to the Customer or if the Customer makes an assignment or compromise for the benefit of its creditors or if its business is placed under official management or if it ceases to carry on business.
• Upon termination of this Hire Agreement the Owner shall be entitled to take possession of the Equipment and, for this purpose, the Customer irrevocably appoints the Owner as its agent and authorises the Owner to enter on any land or premises owned by or under the control of the Customer upon which the Equipment is then situated and agrees to indemnify the Owner in respect of any claims, damages and expenses arising out of any action taken under this condition.

8. EXCLUSION OF CONDITIONS OR WARRANTIES

• To the full extent permitted by law the Owner excludes all implied terms and conditions and warranties including, without limitation, terms, conditions and warranties implied by Commonwealth and State Legislation.

9. EXCLUSION OF LIABILITY

• The Owner and the Customer agree that in the event of the Customer suffering any loss, damage or claim howsoever as a result of hiring the Equipment, including without limitation in respect of delay or inconvenience arising out of any breakdown, failure or defect in the Equipment, the liability of the Owner is limited to the repair or replacement of the Equipment and is not to include any economic or consequential damages of any nature whatsoever.

10. MISCELLANEOUS

• The person signing/enacting the Hire Agreement for and on behalf of the Customer hereby covenants with the Owner that he or she has the authority of the Customer to make the Hire Agreement on the Customer's behalf and is empowered by the Customer to bind the Customer to the Agreement and hereby indemnifies the Owner against any losses and costs incurred by the Owner arising out of a person so signing this Agreement not in fact having such power or authority.
• Termination of the Agreement will not affect any of the conditions that are expressed or implied to operate or have affect after termination.
• Time is to be the essence of all obligations of the Customer in these conditions.
• If any provision or part of any provision of the Hire Agreement is found to be void, voidable or unenforceable, such provision or part thereof shall be severed from the Hire Agreement and the validity and enforceability of the remaining provisions shall not in any way be affected or impaired.
• The laws of the State of Victoria govern this Agreement, and the parties agree to submit to the jurisdiction of the courts of that State and any courts having appellate jurisdiction from them.
• The Hire Agreement constitutes the entire agreement between the parties and supersedes all previous communications or agreements, whether oral or written, relating to the subject matter of this Hire Agreement.
• Any waiver of rights will not be deemed a waiver unless it is in writing and signed by an authorised officer of the party waiving such rights and any such waiver will only operate to the extent so specified.
• The Customer acknowledge that neither the Owner nor any person acting on the Owner's behalf has made any representation or other inducement to the Customer to enter into the Hire Agreement and the Customer has not entered into the Hire Agreement in reliance on any representations or inducements (including in relation to the use of the Equipment) except for those expressly contained in this Hire Agreement.
• The Owner may assign the Hire Agreement to any third party without the Customer's consent.