Wharton Construction Group Pty Ltd Hire Agreement

1. Definitions

1.1 “Australian Consumer Law” means Schedule 2 to the Competition and Consumer Act 2010 (Cth).

1.2 “Client” Means the person/hiring Equipment and/or services (each as applicable) as specified in any invoice, document or order, and if there is more than one Client is a reference to each Client jointly and severally.

1.3 “Day” means "business day" as:

a) "a day that is not -

b) a Saturday or Sunday; or

c) a public holiday, special holiday or bank holiday in the place in which Services are being provided.

1.4 “Drawings” means the drawings referred to in Schedule 1, and any modification of such drawing notified to Wharton Construction Group by the Client.

1.5 “Employee” means any individual provided to the Client on a temporary, casual, or part time basis) incidentally by Wharton Construction Group in the course of conducting or supplying to the Client, any services.

1.6 “Equipment” means all Equipment and all accessories supplied on hire by Wharton Construction Group to the Client (and where the context so permits shall include any incidental supply of Services) and is as described in Schedule 1, Invoices, quotation, authority to hire or any other form as provided by Wharton Construction Group to the Client.

1.7 “Minimum Hire Period” means the minimum amount of time the Equipment may be hired by the Client, as described in Schedule 1, Invoices, quotation, authority to hire or any other form as provided by Wharton Construction Group to the Client.

1.8 “Wharton Construction Group” means Wharton Construction Group Pty Ltd, its successors and assigns any person acting on behalf of with the authority of Wharton Construction Group Pty Ltd.

1.9 “Price” means the cost of hire, of the Equipment and/or Services as detailed in Schedule 1 as agreed between Wharton Construction Group and the Client.

1.10 Quote- means the scope and price provided in Schedule 1.

1.11 “Services” means any Services supplied by Wharton Construction Group to the Client (either independently or in conjunction with Equipment and/or any Employee) at the Client’s request from time to time.

2. Parties

2.1 This Hire Agreement (“Contract”) is made on the date stated in Schedule 1.

2.2 The parties to this Contract are named in Schedule 1.

2.3 The addresses of the parties are stated in Schedule 1.

3. Basis of Contract

3.1 This Contract contains the entire agreement between the parties and no regard shall be had to any prior dealings. Any terms that may have been attached or embodied in other correspondence are deemed to have been withdrawn in favor of the terms stated in this Contract.

3.2 Each party to this Contract shall be responsible for its employees and its sub-contractors, suppliers and consultants.

3.3 The equipment is and will always remain the property of Wharton Construction Group and/or its Suppliers (where applicable).

4. Equipment Hire

4.1 Wharton Construction Group shall supply on hire to the “Client” the equipment identified in Schedule 1.

4.2 The Hire Rates for the Equipment shall be as stated in Schedule 1 and shall commence from the time of delivery and continue until Return, and/or until the expiry of the Minimum Hire Period, whichever occurs last.

4.3 Mobilisation is a lump sum payable in respect of the initial delivery and/ or erection of the nominated Equipment and unloading at the Delivery Address.

4.4 Demobilisation is a lump sum payable in respect of the final removal of the nominated Equipment from the Delivery Address including the removal of all rubbish and other things belonging to Wharton Construction Group.

4.5 A monthly inspection of the Equipment will be undertaken by Wharton Construction Group and charged additionally to the Client at a minimum of one (1) hour at Wharton Construction Group’s current day labour rates detailed in Schedule 1. Notwithstanding this clause Wharton Construction Group retains the right at all times during the hire period to inspect the Equipment.

4.6 The Equipment shall be in accordance with the manufacturer’s specification, shall be in good repair and shall be fit for purpose and suitably licensed for operation.

4.7 Wharton Construction Group shall comply with all statutory requirements, all authority requirements and any government code(s) that may apply, to the extent relevant to the hire of the Equipment in accordance with the Contract. In the event that such statutory requirements change through the course of the hire period and such a change results in additional cost, such additional cost shall be deemed a variation to contract.

5. Delivery and Collection

5.1 It shall be the responsibility of Wharton Construction Group to deliver the Equipment to and to collect the Equipment from the Delivery Address stated in Schedule 1. Loading and off-loading of the Equipment at the Delivery Address shall be the responsibility of Wharton Construction Group.

6. Installation, Dismantle and Alteration of Scaffolding

6.1 It is the responsibility of the Client to:

a. obtain (at the expense of the Client) all licences, permits and/or approvals that may be required for the Equipment

b. provide a clear area of two and a half metres in width from the workface, which is reasonably level and properly compacted. If installation is to be carried out on an existing structure, the Client must ensure that the structure is capable of supporting the additional loads to be imposed prior to delivery and/or installations.

c. provide site amenities (include where necessary, sufficient and safe power supply) and cranage for installation and dismantle (if the equipment is over twelve (12) metres).

d. ensure that all unused material and waste is removed from the working platforms and storage area prior to the performance of installation and/or dismantle services. Time lost due to delays whilst waiting for the work area to be cleared will be charged in addition to the Price at Wharton Construction Group’s current rate hourly rate (included in Schedule 1).

e. ensure that there are adequate tying positions for the Equipment and that Wharton Construction Group employees are instructed on the exact location of the Equipment (including the distance from formwork, walls etc.)

f. satisfy itself on delivery that the Equipment is suitable for its purpose.

g. provide Wharton Construction Group a minimum of three (3) full working days’ notice to arrange for the installation, dismantle or alteration of the Equipment. The Client will be charged for any unauthorized dismantle or movement of the equipment by other parties.

h. not engage any other party (other than Wharton Construction Group), to install, or dismantle the Equipment supplied by Wharton Construction Group.

i. not move the equipment erected by Wharton Construction Group. Any relocation of the equipment shall attract additional fees, all risk for the performance of such shall rest with the Client.

j. maintain the Equipment as required by statute.

k. return the Equipment to Wharton Construction Group in clean and good repair.

l. not alter or make any additions to the Equipment, including but without limitation defacing or erasing any identifying marks, plate or number on the equipment or in any other manner interfere with the Equipment.

m. notify Wharton Construction Group immediately of any damage, malfunction or accident in connection with the equipment. The Client is not absolved from the requirement to safeguard the Equipment by giving such notification.

n. use the Equipment safely, strictly in accordance with the law, only for its intended use and in accordance with any instructions whether supplied by Wharton Construction Group or posted on the Equipment.

o. ensure that all person using the Equipment are suitably instructed in its safe and proper use.

p. comply with all Work Health and Safety requirements relating to the equipment and its use.

q. keep the equipment in their possession and control and not assign the benefit of the hire agreement nor be entitled to take a loan, or grant any encumbrance over the Equipment.

r. not exceed the recommended or legal load and capacity limits of the Equipment.

s. ensure all overhead power likely to cause hazard or adversely affect the installation of the Equipment is turned off prior to the installation thereof:

t. ensure that no digging or excavation work is performed near or under the Equipment during the installation, or once the equipment is installed.

6.2 Equipment will be installed, altered and dismantled in accordance with the scaffold drawings provided, which will comply with AS1567, Part 1, 2,3 and 4, and AS/NZS 4567:- Guidelines for Scaffolding.

6.3 Wharton Construction Group is required by law to provide a Handover Certificate. The signature of the Client (or their representative) will be required prior to handover of the completed works. Even when the works are not complete, Wharton Construction Group are required to handover as incomplete.

7. Damage to Persons and Property

7.1 Wharton Construction Group shall indemnify and keep indemnified the Client (against all physical loss or damage to property, including the “Client’s works, and all loss or damage resulting from death or personal injury arising out of or resulting from:

(a) the Plant/Equipment not complying with the requirements of clause 4.6
and/or
(b) any other act or omission of Wharton Construction Group.

7.2 The indemnity in clause 7.1 shall be reduced to the extent that any loss or damage was caused or contributed to by any act or omission of the “Client”.

7.3 The Client will indemnify Wharton Construction Group for any physical loss or damage to property and any loss or damage of whatsoever nature and howsoever caused with respect to the Equipment, to the extent caused or contributed to by the Client, its employees, contractors, servants and invitees.

8. Defects

8.1 Wharton Construction Group 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 Client failing to properly maintain or store the equipment

b) the Client interfering with the Equipment in any way without Wharton Construction Group’s written approval

c) the Client using the equipment for any purpose other than that for which it was designed;

d) the Client continuing the use of the Equipment after any defect became apparent or should have become apparent to a reasonably competent person;

e)any accident, or act of God.

9. Rectification Cost

9.1 The Client agrees that it is responsible to reimburse all costs incurred by Wharton Construction Group due to:

a) Replacing any equipment, accessories or consumable that are for whatever reason destroyed, written off, or not returned to Wharton Construction Group.

b) Cleaning the equipment

c) repairing any damage caused by:

i) willful or negligent action of the Client, the Client’s employees, contractors, servants and invitees or any other trade;

ii) vandalism, or (in Wharton Construction Group’s reasonable opinion) in any way whatsoever other than by the ordinary use of the Equipment by the Client.

d) Any loss hire charges Wharton Construction Group would have otherwise been entitled to for the Equipment under this or any other Hire Agreement.

e) Any insurance excess payable in relation to a claim made by either the Client or Wharton Construction Group in relation to any damage cause by, the Client, and irrespective of whether charged by the Client’s or Wharton Construction Group’s insurers.

9.2 The parties agree that any claim under this Clause 9, shall be treated as a variation to Contract under Clause 18.

10. Public Liability Insurance

10.1 Wharton Construction Group shall effect a public liability policy of insurance to cover its liability and its “Client’s’ liability to third parties for loss of or damage to property (including loss of use thereof) and the death of or injury to any person.

10.2 With respect to public liability insurance required under clause 10.1, the insurance shall:

(a) be for an amount not less than the sum stated in the Schedule 1;

(b) be maintained during the period of hire;

10.3 Subject to clauses 7 and 10, the Client shall ensure that its public liability insurance covers:

(a) any liability for loss or damage to the Plant/ Equipment during any period for which it is responsible for the safekeeping of the Equipment; and

(b)liability to third parties for loss or damage to property (including loss of use thereof) and death of or injury to any person arising out of or resulting from the operation of the Equipment.

10.4 Wharton Construction Group ensures that at all times during the period of hire, the Equipment is registered and insured as may be required at law and is insured against loss or damage for not less than its market value.

11. Payments

11.1 The Hire Rates stated in Schedule 1 are deemed to include everything necessary for Wharton Construction Group to hire the Equipment and/or Labor to the “Client” in accordance with this Contract and to fulfil all its obligations under this Contract [ unless and subject to variations as instructed or agreed to]. Payments to be made to Wharton Construction Group in accordance with this Clause 11 shall take into account the following matters:

(a) an amount calculated by multiplying the relevant GST exclusive Hire Rates stated in the Schedule by the relevant times agreed

(b) actual costs incurred.

11.2 Claims for payment (including variations) shall be submitted in an appropriate form on or before the time for submission of claims for payment stated in Schedule 1 or, if no time is stated, within 7 days.

11.3 Payments shall be made for the matters referred to in Clause 11.1 less the amount paid in previous payments. Payments shall be made in accordance with the payment terms stated in the Schedule.

11.4 Payment shall be made by electronic funds transfer. The date of payment shall be regarded as the date on which the funds are cleared by the “Client”.

11.5 Late payments may incur an administration fee of $X and interest calculated at 2% above the Penalty Interest Rate as fixed from time to time.

12 Goods and Services Tax (GST)

12.1 Terms used in this clause 12 which are defined in the GST Act have the same meaning in this clause 21. The GST Act means A New Tax System (Goods & Services) Act 1999 (Cth).

12.2 Each party acknowledges and agrees that:

(a) at the time of entering into this Contract, it is registered for GST;

(b) it shall promptly provide written evidence of its GST registration if so, requested by the other party;

(d)it shall promptly notify the other party in writing if it ceases to be registered for GST.

12.3 In respect of payments to be calculated under or in connection with this Contract:

(a) when calculating the amount payable or other consideration to be provided for a supply, the amounts used in the calculation shall exclude any GST component; and

(b) if the payment is relevant to a loss, cost or expense incurred by a party, then the payment will be reduced by any input tax credit to which that party is entitled for that loss, cost or expense.

12.4 For each supply made by a party (Supplier under or in connection with this Contract on which GST is imposed:

(a) the consideration payable or to be provided for that supply under this Contract but for the application of this clause (GST exclusive consideration) shall be increased by, and the recipient of the supply (Recipient) must also pay to the Supplier, an amount equal to the GST exclusive consideration multiplied by the prevailing rate of GST; and

(b) the amount by which the GST exclusive consideration is increased must be paid to the Supplier by the Recipient without set off, deduction or requirement for demand, at the same time as the GST exclusive consideration is payable or to be provided; subject to a valid tax invoice (Tax Invoice) being provided in respect of the GST exclusive consideration.

12.5 A Tax Invoice shall be provided either by:

(a) if the “Client” is the Recipient of the supply and if stated in Schedule 1, the Client providing Wharton Construction Group with a recipient created tax invoice (RCTI) on or before making payment in respect of the supply; or

(b) if paragraph (a) above does not apply, the Supplier providing the Recipient with a Tax Invoice prior to the due date for payment of the supply.

If paragraph (a) above applies:

(d) the Client shall notify Wharton Construction Group if it ceases to comply with any of the requirements of any taxation ruling issued by an authority relating to the creation of RCTIs.

12.6 If, and to the extent an adjustment event arises in respect of a supply made under or in connection with this Contract, then:

(a) if the Supplier’s corrected GST amount is less than the previously attributed GST amount, the Supplier shall refund the difference to the Recipient;

(b) if the Supplier’s corrected GST amount is greater than the previously attributed GST amount, the Recipient shall pay the difference to the Supplier; and

(c)the Supplier shall issue an adjustment note to the Recipient (unless clause 12.5(a) above applies, in which case the Client will issue an adjustment not to Wharton Construction Group).

13. Default

13.1 Without limiting Wharton Construction Group‘s rights under clause 13, if the Client fails to/or:

(a) promptly and properly make good any damage or loss for which the “Client” is responsible;

(b) pay for items supplied by Wharton Construction Group;

(d) Permit unauthorized personnel to use or abuse Wharton Construction Group’s Equipment,

then:

(e) Wharton Construction Group may, at its sole discretion and without obligation, remedy that failure on behalf of the Client and the cost of doing so shall be valued under clause 11.1(b); and

(f) any cost, loss and/or damage that Wharton Construction Group has incurred or is likely to incur as a result of the Client’s default shall be valued under clause 11.1 (b).

14. Termination

14.1 If the Client:

(a) fails to comply with its obligations under this Contract in a timely manner or if the Client (being a person, or being a partnership, or a member thereof) becomes bankrupt or assigns his/her estate for the benefit of his/her Creditors or (being a company) goes into liquidation (other than for amalgamation or reconstruction) or has a Receiver or Official Liquidator or Provisional Liquidator appointed to its affairs, or enters into a Deed of Arrangement or composition with its creditors; and/or

(b) the Client dies,
then Wharton Construction Group may, at its sole discretion terminate this Contract.

14.2 Upon termination under clause 14.1:

(a) the Client shall be liable for those amounts which would have been payable if this Contract had not been terminated as at the date of termination; and

(b) any cost, loss and/or damage that Wharton Construction Group has incurred or is likely to incur as a result of the Clients default shall be valued under clause 11.1(b).

15. Assignment and Sub-contracting

15.1 The Client shall not assign, novate, mortgage or encumber the whole or any part of this Contract nor any payment, right or interest thereunder nor subcontract the performance of its obligations under this Contract or any part thereof, without the prior written approval of Wharton Construction Group.

16. Release

Upon completion of the hire of the Equipment or termination of this Contract and prior to the final payment, Wharton Construction Group and the Client shall fully release and discharge each of their respective employees and agents from and against all claims, demands and causes of action and proceedings of every kind and nature which either party may or might have had or might assert to have.

17. Notice of Dispute

If a difference or dispute (together called a ‘dispute’) between the parties arises in connection with the subject matter of the Contract, then either party shall, by hand or by registered post, give the other party a written notice of dispute adequately identifying and providing details of the dispute.

Notwithstanding the existence of a dispute, the parties shall, continue to perform the Contract.

17.1 Conference

Within 14 days after receiving a notice of dispute, the parties shall confer at least once to resolve the dispute or to agree on methods of doing so. At every such conference each party shall be represented by a person having authority to agree to such resolution or methods of resolution. All aspects of every such conference except the fact of occurrence shall be privileged.

If the dispute has not been resolved within 14 days of service of the notice of dispute, that dispute shall be and is hereby referred to litigation

18. Variations to the Hire Agreement.

(a) The parties agree that the Price contained in the Schedule 1 of the Contract reflect the scope of works as referenced, and can be varied from time to time by the authorised parties to the agreement.

(b) In the event that the authorised parties agree to vary the hire rates, then such agreement shall be in writing, stating the revised rates and durations.

(c) In the event that the Client requires Wharton Construction Group to provide Employees to carry out anything other than mobilisation or demobilisation, such work will be defined by the Client in writing and appropriate Employees supplied by Wharton Construction Group will be charged to the Client at the Rates detailed in Schedule 1.

d) In the event that a claim is to be submitted by Wharton Construction Group to the Client under Clause 9, such cost will be actual cost incurred plus a percentage for profit and overhead. Wharton Construction Group shall provide to the Client copies of all documents evidencing cost.

(e) In the event that the authorized parties fail to agree upon a variation to contract then the matter shall be dealt with at Arbitration in accordance with the appropriate and relevant Act.

19. EXCLUSION OF WARRANTIES

19.1 Where the Australian Consumer Law applied, the Client has the benefit of guarantees in relation to the Hire of the Equipment which cannot be excluded.

19.2 Where the Australian Consumer Law applies and the Equipment is not of a kind ordinarily acquired for personal, domestic or household use or consumption, Wharton Construction Group’s liability in respect of any guarantee is limited to replacement or repair of the costs thereof for the Equipment.

19.3 To the extent that the Australian Consumer Law applies (or any other law which cannot be excluded), does not apply, Wharton Construction Group make no representations or gives no warranty other than those set out in this Contract and will not be liable to the Client for any damages, costs or other liabilities whatsoever (including consequential loss) in relation to the hire of the Equipment.

20. GOVERNING LAW

20.1 This Contract is a payment claim under the Building and Construction Industry Security of Payment Act 2002 (Vic) and the Building and Construction Industry Security for Payment Act 1999 (NSW).

20.2 Save for any action taken by Wharton Construction Group against the Client pursuant to either of the Building and Construction Industry Security of Payment legislation, the parties agree that this Contract is governed by the law of the State of Victoria and the parties submit to the jurisdiction of the courts of the State of Victoria.

POLICIES

Hire Agreement