TERMS AND CONDITIONS of Hire

  1. Definitions

    1. “Agreement” means these terms and conditions, the Quote, any execution pages and any written variations agreed to by the parties.
    2. “Summit Cranes” means Summit Cranes (Trading) Pty Ltd ABN 12 621 638 391 and any subsidiary company or business, successor or assignee, and where applicable, its sub-contractors, employees, servants and agents. 
    3. “Breakdown” includes breakdown, damage, full or partial loss, loss of use, seizure or impoundment by operation of law or otherwise. 
    4. “Client” shall mean the client specified in the Quote, and includes any person acting on behalf of and with the authority of the client specified in the Quote. 
    5. “Dismantling Costs” means the costs associated with dismantling and removal of the Plant and Equipment from the Work Site and the transport of the Plant and Equipment from the Work Site as determined by Summit Cranes and set out in the Quote. 
    6. “Docket(s)” means the daily schedule whereby Summit Cranes records their hours worked on the Work Site, which includes, but is not limited to, the Client name, address and Work Site location. 
    7. “Due Date for Payment” means, unless otherwise specified, thirty (30) days from the issuing date of any invoice provided by Summit Cranes to the Client; 
    8. “Erection and Commissioning Costs” means the costs associated with the delivery and transport of the Plant and equipment to the Work Site, engineering a base design, supply and install of the embedded element, in addition to the erection and commissioning of the Plant and Equipment at the Work Site as determined by Summit Cranes and set out in the Quote. 
    9. “Event of Default” means an event specified in clause 11 of these terms and conditions. 
    10. “Force Majeure” means an unforeseeable supervening event that renders a party’s obligation or obligations under this Agreement incapable of being performed and does not include an intervening event that arises as a result of the conduct of any of the relevant parties. Force Majeure includes but is not limited to: 
      1. an Act of God; a fire, explosion, flood, fog or bad weather; the act of any government or authority (including refusal or revocation of any license or consent); power failure, failure of telecommunication lines, failure or breakdown of Plant Equipment, machinery or vehicles; default of suppliers or independent contractors; theft or malicious damage; strike, lockout or industrial action of any kind whatsoever; and any cause or circumstance whatsoever (excluding financial difficulties or lack of funds experienced by a party to this Agreement) beyond the reasonable control of a party to this Agreement. 
    11. “Hire Charge” means the rates and charges specified in the Quote or such other rate specified and quoted by Summit Cranes to the Client from time to time. 
    12. “Hire Site” means the premises from which Summit Cranes trades from or such other premises as notified to the Client in writing from time to time. 
    13. “Including” and other similar words are not words of limitation. 
    14. “Quote” means the written document setting out the particulars of the Agreement, including but not limited to: 
    15. the description of the Plant and Equipment being supplied by Summit Cranes; the Hire Charge; and the Term. 
    16. “Person” includes an individual, the estate of an individual, a corporation, an authority, an association or a joint venture (whether incorporated or unincorporated), body corporate, a partnership and a trust.
    17. “Plant and Equipment” means the goods specified in the Quote and includes but is not limited to any item of plant, machinery or vehicle, and any tools, accessories, parts, items of equipment and devices affixed to or supplied with such plant, equipment, machinery or vehicle let by Summit Cranes to the Client. 
    18. “Term” means the term of the Agreement as specified in the Quote or such further period as is agreed upon by Summit Cranes in writing. 
    19. “Work Site” means the site where the Client requires the Plant and Equipment to be used during the course of the Term.
  2. Interpretation

    1. General words following words describing a particular class or category are not restricted to that class or category.
    2. Headings are for reference only and do not affect the meaning or interpretation of this document unless the context indicates a contrary intention. 
    3. A reference to a clause, part, schedule or attachment is a reference to a clause, part, schedule or attachment of or to this document unless otherwise stated; 
    4. A reference to a business day means a day on which all banks are open for business generally in New South Wales, Australia, which does not include Saturday, Sunday or any public holiday. 
    5. Unless otherwise required by the context of the subject matter, a reference to a party includes that party’s executors, administrators, personal representatives, successors and assignees. If a party comprises of two or more persons, a reference to a party includes the executors, administrators, personal representatives, successors and assignees of each of those persons. 
    6. References to any legislation or to any provision of any legislation shall include any modification or re-enactment, or any legislation or legislative provision substituted for or corresponding or similar to, and all legislative and statutory instruments issued under such legislation or such provision.
  3. Acceptance

    1. Any instructions received by Summit Cranes from the Client in writing for the hire of Plant and Equipment, and or the Client’s acceptance of Plant and Equipment on hire by Summit Cranes in writing, shall constitute acceptance of the Agreement including these terms and conditions.
    2. Where the Agreement is between Summit Cranes and two or more Clients, each of the Clients shall be jointly and severally liable for the Hire Charge. 
    3. Upon the Client’s acceptance of the Agreement, such terms are irrevocable and can only be amended with the Client being provided express written consent by Summit Cranes. 
    4. The Client shall give Summit Cranes no less than fourteen (14) days prior written notice: if the Client is a corporation, of any proposed change of ownership of the Client; of any change of the Client’s name; of any change in the Client`s details including but not limited to: the Client’s address; and the Client’s facsimile number, phone number, and email address.
    5. The Client shall be liable for any loss or detriment sustained by Summit Cranes as a result of non-compliance with clause 3.4.
  4. Intention of the Parties 

    1. It is the parties’ intentions, that should the parties enter any subsequent agreement, these terms and conditions will be incorporated by reference, in the alternative these terms and conditions represent a collateral contract.
  5. Payment of Hire Charges and Other Costs

    1. The Client shall pay Summit Cranes the Hire Charge strictly in accordance with the manner specified in the Quote on the Due Date for Payment. The Hire Charge shall not be subject to any set-off or deduction for any reason whatsoever. This includes such circumstances including but not limited to:
      1. inclement weather; industrial dispute; public holidays; rostered days off; site closures; or any other non-working time howsoever caused during the Term or extension thereof. 
      2. If payment is not made by the Client to Summit Cranes by the Due Date for Payment: 
          1. Summit Cranes will be at liberty to restrict access to the Plant and Equipment and/or resume possession of the Plant and Equipment as it sees fit. Any recommencement of the Term will be at Summit Cranes’ discretion; or
          2. Summit Cranes may charge interest at the rate of 10% on any outstanding amount. 
    2. The Client shall not be relieved from its responsibility to pay the Hire Charge for the entire Term in the event the Plant and Equipment is returned to Summit Cranes prior to the expiration of the Term. 
    3. The Client shall pay any sales, rental or other taxation, stamp duty, import duties, bonds or any other charges which may be levied upon the Agreement and/or the use or delivery of the Plant and Equipment. 
    4. The Client shall make payment in Australian Currency and by Cash, Cheque, Direct Debit or EFTPOS. 
  6. Hire Period 

    1. The Hire Charge shall commence from the time the Plant and Equipment leaves the Hire Site and will continue until the return of the Plant and Equipment to the Hire Site, and/or until the expiry of the Term, whichever last occurs.
  7. Dockets

    1. Dockets must be signed by the Client on a daily basis. In the event the Dockets are not signed daily, the Client is not entitled to retrospectively dispute the information on a past Docket.
    2. The Client should not sign the Docket if the client does not agree with the information on the Docket. No credit is given for signed Dockets. 
  8. Delivery of Plant and Equipment

    1. At Summit Cranes’ sole discretion, the costs of traveling to and from the Client’s site will be included in the Quote.
    2. Unless otherwise specified, Summit Cranes will arrange for the transportation of the Plant and Equipment from the Hire Site to the Work Site. 
    3. Unless otherwise specified, Summit Cranes will supply of all necessary craneage, labour, equipment, materials, and other requirements relating to the delivery of the Plant and Equipment. 
    4. The Client is responsible for arranging the supply of ancillary equipment which Summit Cranes does not have in its possession at the Delivery Date or otherwise. 
    5. Summit Cranes will use reasonable endeavours to maintain the Deliver Date. 
    6. The failure of Summit Cranes to carry out the scheduled delivery on the Delivery Date shall not entitle either party to treat the Agreement as repudiated by Summit Cranes. 
    7. Summit Cranes shall not be liable for any loss or damage sustained by the Client whatsoever, due to the failure of Summit Cranes to deliver the Plant and Equipment on the Delivery Date, in circumstances where there has been a Force Majeure. 
    8. The Client shall make all arrangements necessary to take delivery of the Plant and Equipment on the Delivery Date. 
    9. In the event the Client is unable to take delivery of the Plant and Equipment on the Delivery Date, Summit Cranes shall be entitled to charge a reasonable fee for redelivery. 
    10. The Client shall be responsible for free access for Summit Cranes to enter the Work Site for the purposes of delivery of the Plant and Equipment. 
    11. In the event there are any delays due to free access to the Work Site not being available, then the Client shall be responsible and shall reimburse Summit Cranes for all lost hire fees associated with making the Work Site available. The Client shall also be liable for all other expenses and costs incurred by Summit Cranes due to delays in accessing the Work Site. 
    12. Unless otherwise specified, the Client will be responsible for the cost of additional labour, equipment, materials, expenses and other requirements. The Erection and Commissioning Costs will be payable by the Client and are payable upon the Client’s acceptance of the Agreement pursuant to clause 3. 
    13. The Dismantling Costs will be payable by the Client. 
    14. Summit Cranes is entitled to increase the Erection and Commissioning Costs and the Dismantling Costs in the event that the work is required to be carried out on a gazetted public holiday in the area of the Hire Site. 
    15. Summit Cranes may, at its discretion, consent to the work subject of the Erection and Commissioning Costs, to be carried out by the Client or a third party, however, this will be subject to Summit Cranes first providing all necessary documents and certifications as requested by Summit Cranes, and the Client complying with all further requirements sought by Summit Cranes. 
    16. The Client shall immediately notify Summit Cranes upon discovery of any defect in the Plant and Equipment. The Client shall not carry out any remedial work to alleged defective Plant and Equipment without consent of Summit Cranes. 
  9. Breakdown of Plan and Equipment

    1. Summit Cranes shall without delay take all reasonable steps to replace the Plant and Equipment the subject of the Breakdown with Plant and Equipment of a similar type or capacity but is under no obligation to do so.
    2. Summit Cranes shall not be liable for any direct, indirect or consequential costs, losses or damages suffered by Client or third parties in relation to a Breakdown. 
    3. In the event of a Breakdown, the Client will remain liable for paying the Hire Charge and any other costs as agreed between the parties in the Quote or otherwise. 
    4. Summit Cranes is under no obligation to replace or repair any Equipment which is the subject of a Breakdown, and the Summit Cranes shall not be liable for any direct, indirect or consequential costs, losses or damages suffered by the Client or third parties in relation to a Breakdown. 
    5. For the avoidance of doubt, in the event of a Breakdown, Summit Cranes will not be liable to pay any back charges. 
  10. Risk

    1. Summit Cranes retains property in the Plant and Equipment nonetheless all risk for the Plant and Equipment passes to the Client on delivery to site.
    2. The Client accepts full responsibility for the safekeeping of the Plant and Equipment and indemnifies Summit Cranes for all loss theft or damage to the Plant and 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 Client. 
    3. The Client accepts full responsibility for and shall keep Summit Cranes indemnified against all liability in respect of any injury to persons or damage to property arising out of the use of the Plant and Equipment during the hire period however arising and whether or not arising from any negligence, failure or omission of the Client or any other person, including in the event that the Client supplies its own dogmen on the Hire Site. 
  11. Default and Consequences of Default

    1. If the Client defaults in payment of any invoice when due, the Client shall indemnify Summit Cranes from and against all costs and disbursements incurred by Summit Cranes in pursuing the debt including legal costs on a solicitor and own client basis and Summit Cranes’ collection agency costs.
    2. Without prejudice to any other remedies Summit Cranes may have, if at any time the Client is in breach of any obligation (including those relating to payment), Summit Cranes may suspend or terminate the supply of Equipment or services to the Client and any of its other obligation under the terms and conditions. Summit Cranes will not be liable to the Client for any loss or damage the Client suffers because Summit Cranes has exercised its rights under this clause. 
    3. Without prejudice to Summit Cranes’ other remedies at law, Summit Cranes shall be entitled to cancel all or any part of any order of the Client which remains unperformed in addition to and without prejudice to any other remedies Summit Cranes may have and all amounts owing to Summit Cranes shall, whether or not due for payment, become immediately payable in the event that: 
      1. any money payable to Summit Cranes become overdue, or in Summit Cranes’ opinion the Client will be unable to meet its payment as they fall due; or
      2. the Client 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
      3. a receiver, manager, liquidator (provisional or otherwise) or similar person is appointed in respect of the Client or any asset of the Client. 
  12. Personal Property Securities Act 2009 (PSSA)

    1. The Client acknowledge that these Terms of Trade constitute a Security Agreement which creates (or may create) a Security Interest in favour of Summit Cranes and in all Personal Property previously supplied by Summit Cranes to the Client (if any) and all after acquired Personal Property supplied to the Client by the Summit Cranes.
    2. The Client agrees to grant to Summit Cranes a Purchase Money Security Interest (PMSI). 
    3. The Client accepts, acknowledges and agrees that: pursuant to the retention of title clause in clause 12.1, Summit Cranes obtains a Security Interest in all Goods and Services supplied by Summit Cranes to the Client on hire or credit, including any Commingled Goods; 
    4. Summit Cranes can, without notice to the Client, seek Registration of its Security Interest on the PPSR; and 
    5. Pursuant to section 275(6) of the PPSA, the Client agrees Summit Cranes is not required to disclose to an interested person information pertaining to the Summit Cranes’ Security Interest unless required to do so pursuant to the PPSA or at law generally.  
    6. The Client will: 
      1. sign any further documents and/or provide any further information (which information the Client warrants to be complete, accurate and up-to-date in all respects) which Summit Cranes may reasonably require to enable perfection of its Security Interest or registration of a Financing Statement or Financing Change Statement on the PPSR; 
      2. not register a Financing Change Statement or make a demand to alter the Financing Statement pursuant to section 178 of the PPSA in respect of the Goods, including any services, without the prior written consent of Summit Cranes; 
      3. give Summit Cranes not less than 14 days written notice of any proposed change in their name and/or any other changes in their details (including but not limited to, changes in their address, facsimile number, email address, trading name or business practice);
      4. indemnify Summit Cranes against any costs Summit Cranes incurs in perfecting and maintaining its perfected Security Interest in the Goods or such other Personal Property under the PPSA and any costs Summit Cranes may incur in the course of enforcing any of its rights under this Agreement, the PPSA or at law generally; and
      5. procure from any persons considered by Summit Cranes to be relevant to its security position, such agreement and waivers as Summit Cranes may at any time reasonably require.
    7. To the extent permitted by the PPSA the Customer waives its rights to: 
      1. receive a notice under any of subsections 95(1), 121(4), 129(2) and 130(1) and sections 135 and 157 of the PPSA; 
      2. receive a statement that includes the information referred to in paragraph 132 (3)(d) of the PPSA; 
      3. receive a statement under subsection 132(4) of the PPSA; 
      4. redeem Collateral after default under section 142 of the PPSA unless the Lessor agrees in writing to such redemption; 
      5. reinstate the Security Agreement under section 143 of the PPSA ; and 
      6. give a Notice of Objection under section 137 of the PPSA.
  13. Right of Removal

    1. The Purchaser irrevocably grants to the Summit Cranes its agents and servants an unrestricted right and license without notice, to enter premises occupied by the Purchaser, to identify and remove any goods which the property of the Summit Cranes is. In terms of these conditions as aforesaid and without in any way being liable to the Purchaser or any person claiming through the Purchaser, the Summit Cranes shall have the right to sell or dispose of any of such goods so removed or otherwise in its sole discretion and shall not be responsible for any loss occasioned thereby. 
  14. Termination

    1. Summit Cranes may terminate the Agreement without reason or for its convenience upon 24 hours advance notice to the Client. Summit Cranes shall not be liable for any loss or damage whatever arising from such termination.
    2. Summit Cranes may terminate the Agreement without notice if the Client: 
      1. commits a breach of the Agreement;
      2. permits any act or thing to be done which may prejudice, diminish or alienate Summit Cranes’ rights to or in the Plant and Equipment; 
      3. commits an act of bankruptcy; 
      4. becomes insolvent or is unable to pay its debts when they fall due; 
      5. enters into voluntary liquidation, provisional liquidation, administration or receivership, 
      6. has a winding up petition presented against it; 
      7. has any of its property seized by a secured creditor or any secured creditor takes steps to enforce its rights; 
      8. ceases to be carrying on business or substantially changes its business activities, or
      9. suffers a change of management or voting control without prior Summit Cranes’ approval. 
    3. On termination of the Agreement, Summit Cranes is entitled to immediate possession of the Plant and Equipment and where such possession is not obtained, the Client irrevocably appoints Summit Cranes as its agent and authorised attorney to enter upon any land or premises on behalf of the Client to recover the Plant and Equipment and agrees to indemnify Client in respect of any claims, damages or expenses arising out of any action taken under this condition. 
    4. In the event of the Client terminating the Agreement, the Client shall be liable for any loss incurred by Summit Cranes (including, but not limited to, any loss of profits) up to the time of termination. 
  15. Intellectual Property

    1. All drawings, illustrations, display material, specifications and other literature and materials for or relating to the Plan and Equipment and whether or not supplied by or on behalf of the Summit Cranes to the Client, shall remain the exclusive property of Summit Cranes and shall not be transferred to any other party without the previous written consent of Summit Cranes. 
    2. The Client shall not use, reproduce or impart any information contained therein to any third party without the previous written consent of Summit Cranes. 
    3. Where Summit Cranes has followed a design, sample or instruction furnished or given by the Client, the Client shall indemnify Summit Cranes against all damages, penalties, costs and expenses to which it may become liable through any work required to be done in accordance with those instructions involving an infringement of a patent, trademark, registered design, copyright or common law right. 
  16. Workers

    1. Where a worker or workers are specified in the Quote (i.e. as that will be on hired to the Client), then the parties agree as follows:
      1. the workers will be engaged or employed by Summit Cranes;
      2. the Client must keep details of the workers and their Personal Information strictly confidential at all times;
      3. the Client shall not offer direct employment or engagement to a worker within 12 months of the worker being provided to the Client by Summit Cranes;
      4. the Client agrees to comply with the Privacy Act 1988 (Cth) regarding Personal Information; 
      5. the Client agrees that it will not provide Personal Information of a worker to any third party without the express consent of Summit Cranes; and
      6. the Client will ensure, so far as is reasonably practicable, the health and safety of all workers supplied by Summit Cranes. 
    2. In this clause “Personal information” means any information or an opinion about a worker supplied by Summit Cranes to the Client who is reasonably identifiable.
  17. Governing Law

    1. This document is governed and construed by the laws of Australia and the parties will not object to the exercise of jurisdiction by such courts on any basis.

 

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