TERMS AND CONDITIONS

1.         AGREEMENT EFFECTIVE

         The application of this Agreement extends to all Equipment supplied by Ausdirect before the date this Agreement is duly executed by both parties.

2.         HIRE PERIOD

2.1      The Hirer has agreed to hire the Equipment from Ausdirect, and Ausdirect has agreed to hire the Equipment to the Hirer, for the Hire Period on the terms and conditions of this Agreement commencing at the start of the Hire Period. 

2.2      Should this Agreement continue after the expiration of the Hire Period, the Agreement will continue on a month by month basis in accordance with the terms set out in this Agreement, and can be terminated by either party with the provision of 30 days written notice.

3.         DELIVERY AND OWNERSHIP

3.1      At the Hirer’s cost, Ausdirect will deliver and install the Equipment and pick up the Equipment for return at the expiration or earlier termination of this Agreement.

3.2      Ausdirect is not liable for any delay in delivery or refusal to deliver the Equipment.

3.3      Title to the Equipment provided to the Hirer remains at all times with Ausdirect. 

3.4      The Equipment is at the Hirer’s risk on and from delivery of the Equipment to the Hirer.

3.5      The Hirer warrants that on termination of this Agreement it will maintain no rights (equitable or legal) in the Equipment.

4.         QUIET ENJOYMENT

Subject to the Hirer duly and punctually paying the Rent and complying with this Agreement, the Hirer will be entitled to peaceably possess and enjoy the Equipment during the Hire Period without any interruption or disturbance from Ausdirect or any other person lawfully claiming by, from or under Ausdirect, but subject always to the rights of Ausdirect under this Agreement.

5.         RENT PAYMENTS FOR HIRE OF THE EQUIPMENT

5.1      The Hirer will pay to Ausdirect the Rent in accordance with the Details.

5.2      If payment is made otherwise than personally and in cash to Ausdirect, payment will not be taken to have been made until Ausdirect receives the money in cleared funds.

5.3      If any Rent is not paid by the Hirer on or before the relevant due date, the Hirer must pay interest calculated daily at the rate set out in the Details on that outstanding amount for the period from and including the day on which it fell due for payment, but excluding the day on which that outstanding amount is paid in full.

5.4      The Hirer is not entitled to withhold any payments or make any deductions from any payment even if the Hirer claims to have a right of set-off or counter-claim of any nature.

5.5      Once this Agreement is in effect, on the provision of 60 days written notice to the Hirer, Ausdirect may increase the Rent where:

(a)       a new tax, duty or other impost is incurred by Ausdirect; or

(b)       any work to the Equipment is required by a law, regulation or direction of a government authority,

but the increase in Rent must only be commensurate to the increased costs or expenses of Ausdirect as a result of those events.

5.6      If the Hirer does not consent to the Rent increase pursuant to clause 5.5, the Hirer may terminate this Agreement and promptly return the Equipment, at its cost, to Ausdirect.

6.         PPSR

6.1      Definitions: Unless the context otherwise requires, any terms with a defined meaning in the Personal Property Securities Act 2009 (Cth) have the same meaning when used in this clause 6.

6.2      Acknowledgement:  Without limiting this clause 6, the parties agree and acknowledge that Ausdirect is entitled to register a purchase money security interest (“PMSI”) against the Hirer with respect to the Equipment on the personal property security register pursuant to this Agreement.

6.3      Grant: You grant a security interest and a PMSI in the Equipment to Ausdirect for the purpose of securing the payment of Rent for the Equipment.

6.4      Security agreement: The parties agree and acknowledge that this Agreement is a security agreement.

6.5      Registration: The Hirer consents to Ausdirect registering a security interest and a PMSI on the personal property securities register in relation to the Equipment and agree to provide all assistance required by Ausdirect to facilitate such registration including signing any document, providing all necessary information and doing all things required to ensure Ausdirect’s security interest and PMSI are perfected.

6.6      PPSA: The irer Hirer waives the right to receive any notice under the PPSA (including notice of verification statement) unless the notice is required by the PPSA and cannot be excluded.

6.7      The parties agree, to the extent permitted by section 115 of the PPSA that any requirements or rights under section 115 of the PPSA do not apply to the enforcement of Ausdirect’s security interest or PMSI in the Equipment.

6.8      The parties agree that this Agreement and all related information and document(s) are confidential and will not be disclosed to unauthorised representatives or third parties, except to the extent disclosure is permitted by this Agreement or required by law.  The parties agree that neither party will disclose information pursuant to a request under section 275(1) of the PPSA.

7.         FITNESS FOR PURPOSE

7.1      The Hirer warrants that, at the start of the Hire Period, the Hirer has satisfied itself that:

(a)       the Equipment is fit for the purpose for which it is being hired;

(b)       the Equipment is suitable to enable the Hirer to use the Equipment in the conduct of its business; and

(c)       the Equipment complies with its description in this Agreement, as well as its condition, specifications, quality and safety.

8.         ACKNOWLEDGEMENTS BY THE HIRER

8.1      The Hirer acknowledges that:

(a)       this Agreement is for dry hire only, and that no operator will be provided by Ausdirect;

(b)       Ausdirect is not the manufacturer of the Equipment;

(c)       in choosing the Equipment the Hirer did not rely upon:

(i)         anything that Ausdirect may have told the Hirer about the Equipment; or

(ii)        any information that Ausdirect may have given the Hirer about the Equipment;

(d)       in deciding to sign this Agreement the Hirer did not rely upon:

(i)         anything that Ausdirect may have told the Hirer about this Agreement; or

(ii)        any information that Ausdirect may have given the Hirer about the Hirer’s rights and duties under this Agreement, this Agreement’s effect on the tax position of the Hirer or this Agreement’s treatment for accounting purposes for the Hirer.

9.         USE OF EQUIPMENT

9.1      The Hirer must use the Equipment with reasonable care and only for the purposes for which it is intended and in accordance with any operator’s manual supplied by Ausdirect, subject to the terms and conditions of this Agreement.

9.2      The Hirer will be responsible for damage to the Equipment if it is used for any purpose other than that for which it was expressly hired.

9.3      The Hirer will, at its own risk and expense, operate the Equipment only by competent, and where appropriate, qualified, trained and licenced personnel and by appropriate methods and standards of operation.

9.4      The Hirer will be responsible for daily checks and topping up of all oils, coolants, etc., tyres pressures, etc., to ensure safe operation of Equipment.

9.5      The Hirer must not move the Equipment from the Premises without the written consent of Ausdirect.

9.6      The Hirer must not alter the Equipment or any marks or numbers on the Equipment.

9.7      The Hirer must not, without the written consent of Ausdirect, paint or display any signs or advertising on the Equipment.  If consent is provided by Ausdirect, the Hirer must remove any such signs and restore the Equipment to the satisfaction of Ausdirect prior to termination or expiration of this Agreement.

10.      LEND/RE-HIRE OF EQUIPMENT

10.1   The Hirer must not lend, re-hire, cross-hire, sublet or part with possession of the Equipment to any third party.

11.      MAINTENANCE OF EQUIPMENT

11.1   The Hirer will during the Hire Period and at its own cost keep and maintain the Equipment in good working order and condition and in good repair, fair wear and tear excepted.

11.2   Should the Equipment suffer major breakdown while on hire due to fair wear and tear, the Hirer must immediately notify Ausdirect of such breakdown. No action can be taken by the Hirer to effect repairs in relation to such breakdown until approval has been given by Ausdirect to the carrying out of the necessary repairs.

12.      DAMAGE TO EQUIPMENT

12.1   If the Equipment is damaged during the Hire Period to an extent which renders the Equipment unfit for use by the Hirer, the Hirer must:

(a)       give Ausdirect notice in writing providing full details of such loss or destruction;

(b)       continue to make the Rent payments for the remainder of the Hire Period (which the Hirer agrees is a genuine pre-estimate of the loss Ausdirect will suffer as a result of such damage); and

(c)       at the cost of the Hirer, repair or replace the Equipment to the reasonable satisfaction of Ausdirect.  The Hirer’s obligation to repair or replace will be subject to the Limited Damage Waiver set out in clause 20, if it applies.

13.      INSPECTION OF EQUIPMENT

The Hirer will allow Ausdirect complete and uninterrupted access to inspect the Equipment, provided that reasonable notice of the inspection is given to the Hirer.

14.      MODIFICATION OF EQUIPMENT

The Hirer will not without the prior written consent of Ausdirect make any addition, replacement or alteration to the Equipment.

15.      COMPLIANCE WITH STATUTORY REQUIREMENTS

In using the Equipment, the Hirer will, at its own cost, comply with the provisions of any legislation and any regulation or order made under such legislation which apply to the safe use and operation of the Equipment.

16.      LOCATION OF EQUIPMENT

16.1   The Hirer warrants and represents to Ausdirect that unless otherwise specified in the Details, the Hirer is Ausdirect or lessee of the Premises where the Equipment is housed during the Hire Period.  The Hirer will not attach, fix or secure the Equipment or any part thereof to the Premises without the consent of Ausdirect.

16.2   Without limiting clause 16.1:

(a)       if the Equipment is affixed, attached or secured to land or premises of which the Hirer is owner, the Equipment will be deemed not to be a fixture and may be removed by Ausdirect at any time in accordance with this Agreement, and Ausdirect will be entitled to enter upon such land or premises at any time for that purpose and will not be liable for any loss, damage or otherwise arising in respect of such entry or such removal; and

(b)       if the Equipment is affixed, attached or secured to land or premises of which the Hirer is not Ausdirect, the Hirer will, prior to such affixing, attaching or securing, obtain the consent in writing of Ausdirect or any mortgagee thereof to the entry onto the land or premises and the removal therefrom of the Equipment in the manner referred to in subclause (a) and as between Ausdirect and the Hirer, Ausdirect will have the same rights of entry and removal as set out in subclause (a).

17.      ENCUMBRANCES

The Hirer will not, and will not attempt to assign, mortgage, pledge, sell, charge, encumber, sublet, part with possession of, grant a security interest, lien, licence or other encumbrance over, or otherwise dispose of or deal with  or permit or suffer to exist any lien or other encumbrance over, the Equipment or any part thereof or any of the rights of the Hirer to the Equipment or any part thereof, or any of the rights of the Hirer under this Agreement, and will keep the Equipment free from any distress, execution or other legal process.

18.      HIRER’S FURTHER OBLIGATIONS

The Hirer will be responsible for those additional matters contained in the Details, and must pay promptly all expenses incurred in relation to those matters.

19.      INSURANCE

19.1   If it has been indicated in the Details that the Hirer will insure the Equipment, then the Hirer must:

(a)       at its cost maintain adequate insurance to cover all liabilities incurred as a result of the use of the Equipment throughout the Hire Period with an Australian insurance company approved by Ausdirect, including but not limited to insurance against fire, theft, accident and damage while in the Hirer’s possession. Such insurance policies must show Ausdirect as an insured party; and

(b)       produce to Ausdirect proof that the insurance required under this clause 19 has been effected.

19.2   If any money is paid to the Hirer by the insurance company pursuant to any claim or otherwise, the Hirer will be deemed to hold that money in trust for Ausdirect and must immediately pay such money to Ausdirect.

19.3   The Hirer must not use the Equipment nor permit it to be used in such a manner as would permit an insurer to decline any claim.

19.4   If, for any reason the Hirer is in breach of this clause and does not hold the required insurance (or any insurance at all), or the Hirer’s insurer does not pay out on the relevant policy, the Hirer agrees that it will personally be responsible for and liable to Ausdirect for all monies owing to it as set out in this Agreement.

19.5   The Hirer will remain liable for any shortfall between the insurance proceeds and the amount payable to Ausdirect under this Agreement.

20.      LIMITED DAMAGE WAIVER

20.1   If it has been indicated in the Details that the Limited Damage Waiver will apply for the Equipment (or if no selection has been made), then, subject to the other provisions of this clause 20 below: 

(a)       a surcharge of 10% of the Rent will be added to the Rent, such surcharge to be divided into equal amounts and spread across the Hire Period, and the Hirer will make such payments to Ausdirect at the same time and in the same manner as the Rent;

(b)       where the Equipment suffers loss or damage (regardless of whether the Hirer, persons under the control of the Hirer or any other party has caused or contributed to that loss or damage), the Hirer’s liability to Ausdirect in relation to such loss or damage is limited to the excess payable pursuant to Ausdirect’s insurance policy, being:

(i)         $5,000 (plus GST); or

(ii)        1% of the insured value of the item of Equipment hired that has been lost or damaged,

whichever is the greater amount. The Hirer must immediately pay the excess on demand by Ausdirect.

20.2   The provisions of clause 20.1 will not apply if, before, on or after the date the Equipment suffers the loss or damage, any one or more of the following apply:

(a)       the Hirer is in breach of this Agreement including, without limitation, payment of the Limited Damage Waiver surcharge pursuant to clause 20.1(a);

(b)       the Hirer is in breach of any applicable laws or regulations;

(c)       the loss or damage is caused or contributed to by the Hirer’s or any other person’s (whether permitted or otherwise by the Hirer) intentional, malicious, reckless, dishonest, fraudulent or deliberate act or omission, or an act or omission of gross negligence;

(d)       the loss or damage is caused or contributed to by the Hirer, or any other person (whether permitted or otherwise by the Hirer), operating the Equipment under the influence of drugs, alcohol or other prohibited substance; using the Equipment for other than its intended purpose, or subjecting the Equipment to pollution or contamination;

(e)       the loss or damaged is caused or contributed to by the Hirer, or any other person (whether permitted or otherwise by the Hirer), operating the Equipment without being licensed to do so, or failing to comply with any licence conditions;

(f)        the loss or damage is caused or contributed to by the Hirer, or any other person (whether permitted or otherwise by the Hirer), operating the Equipment while having been directed by a medical or other professional person not to operate the Equipment or any similar goods or equipment due to any condition, illness, medical treatment, or medication;

(g)       the Equipment is seized by any authority having jurisdiction to do so;

(h)       the loss or damage to the Equipment is caused or contributed to by an event which the Hirer could have prevented or mitigated by taking reasonable steps to prevent the loss or damage occurring; or

(i)         the Hirer, or any other person operating the Equipment (whether permitted or otherwise by the Hirer), does not provide Ausdirect or the police with all assistance and information required to fully investigate and determine the circumstances surrounding the loss or damage.

20.3   The Hirer acknowledges that the Limited Damage Waiver applies only to loss or damage to the Equipment and does not limit, prejudice, or affect any other obligation the Hirer has or may have to Ausdirect.  The Hirer must effect and maintain any other insurance reasonably required by Ausdirect, including without limitation public liability insurance for a minimum of $10 million.

20.4   Despite anything else in this Agreement, Ausdirect reserves the right at time before or during the hire to decline or cancel the Limited Damage Waiver, in which case the Hirer must insure the Equipment to Ausdirect’s satisfaction.

20.5   The Hirer agrees that Limited Damage Waiver is not a contract of insurance.

21.      GUARANTEE AND INDEMNITY

21.1   This clause applies to the Guarantor.

21.2   Ausdirect agrees to enter into this Agreement, at the request of the Guarantor, upon the condition that the Guarantor guarantees to Ausdirect the Hirer’s due performance and observance of the terms, covenants and conditions of this Agreement.

21.3   The Guarantor:

(a)       guarantees to Ausdirect the due and punctual payment to it of all moneys due, or which may become due, from the Hirer under this Agreement;

(b)       guarantees to Ausdirect the due and punctual performance and observance by the Hirer of the terms, covenants and conditions contained in or implied by this Agreement;

(c)       indemnifies Ausdirect and saves Ausdirect harmless from any liability however so caused as a result of entering this Agreement; and

(d)       is responsible to Ausdirect in the same manner as if it was the Hirer and it is further agreed and declared that the following clauses 21.4 to 21.8 prevail.

21.4   No extension of time or other indulgence granted to the Hirer by Ausdirect operates to affect or modify any of the obligations or covenants of the Guarantor hereunder and the Guarantor shall not be released either wholly or partially under this guarantee by reason of any neglect or forbearance by Ausdirect to require or enforce the payment by the Hirer of moneys guaranteed or the performance and observance by the Hirer of any of the terms, covenants, conditions and warranties contained in or implied by this Agreement.

21.5   This guarantee is a continuing guarantee and will remain in full force and effect until all moneys now or at any time hereafter payable by the Hirer to Ausdirect have been fully paid including moneys the payment or satisfaction of which is subsequently avoided or affected in any way whether under any statutory provision or otherwise so as to deprive Ausdirect of the full benefit of such payment or satisfaction.

21.6   Ausdirect may at any time and from time to time grant to the Hirer any time or other indulgence or consideration and may release or discharge or otherwise deal with any property whether real or personal comprised in any security now or at any time hereafter held by Ausdirect without discharging or affecting the liability of the Guarantor under this clause 21.

21.7   Until Ausdirect has received in full all moneys now or which subsequently are owing or payable to it by the Hirer, the Guarantor is not entitled on any grounds whatsoever to claim the benefit of any security held by Ausdirect for the payment of the moneys or obligations guaranteed.  

21.8   If the Hirer is wound up the Guarantor is not entitled to prove or claim in the winding up of the Hirer in competition with Ausdirect so as to diminish any dividend or payment which but for such proof Ausdirect would be entitled to receive in the winding up and the receipt of any dividend or other payment which Ausdirect may receive in the winding up will not prejudice or affect the right of Ausdirect to recover from the Guarantor the moneys guaranteed.

21.9   The Guarantor accepts that as an essential condition of this Agreement that the Guarantor charges all of the Guarantor’s real property, present and future wheresoever situated (Real Property) with the amount of the Guarantor’s indebtedness to Ausdirect from time to time.  The Guarantor further consents to the lodgement of a caveat over the Guarantor’s Real Property to support the charge here given.  Further, the Guarantor agrees to do all things necessary to register any instrument with the land titles registry of the state or territory in which the Real Property is located to the support the Guarantor’s obligation under this clause.

21.10             In giving the guarantee and indemnity set out in this clause 21, the Guarantor acknowledges that:

(a)       the Guarantor has read and understands the terms of the guarantee and indemnity; and

(b)       before giving the guarantee and indemnity, the Guarantor has received legal advice with respect to the effect of the guarantee and indemnity or has, of the Guarantor’s own volition and free of any duress, decided that the Guarantor does not require legal advice with respect to the guarantee and indemnity.

22.      INDEMNITY BY THE HIRER

22.1   Without limiting clause 19 or clause 20 (if applicable) above, and irrespective of whether the Hirer has effected adequate insurance cover, the Hirer assumes liability for and indemnifies Ausdirect, its agent and employees against all losses, liabilities, costs and expenses (including Consequential Loss and legal expenses on a full indemnity basis) arising as a result of any or all of the following:

(a)       on account of the delivery, installation, hiring, disposition, use, condition or operation of the Equipment by the Hirer or any other person (except where it is used or operated by Ausdirect);

(b)       in respect of any damage to property or death of or injury to any person which may be suffered or sustained in connection with the Equipment; and

(c)       without limiting the operation of clauses (a) and (b), in the event that Ausdirect requires the Hirer to return the Equipment.

22.2   The Hirer releases Ausdirect to the fullest extent permitted by law from all claims and demands of every kind arising out of delivery, installation, ownership, hiring, use, disposition or operation of the Equipment, including any liability which may arise in respect of any accident or damage to property or death of or injury to any person of whatever nature or kind. The Hirer agrees that Ausdirect will have no responsibility or liability for any loss of or damage to any property of the Hirer.

22.3   The indemnities and releases contained in this clause 22 will continue in full force notwithstanding any termination of this Agreement.

23.      LIMITATION OF LIABILITY

23.1   All expressed and implied terms, conditions and warranties that otherwise might apply to this Agreement are excluded to the extent permitted by law.

23.2   Subject to any terms, conditions and warranties implied by law that cannot be lawfully excluded, Ausdirect’s total liability to the Hirer under this Agreement is no more than either:

(a)       replacing the Equipment with the same or equivalent equipment; or

(b)       repairing the Equipment or the cost to repair the Equipment.

24.      CONFIDENTIAL INFORMATION 

24.1   Each party must keep confidential any information, data or documents of a confidential or proprietary nature (Confidential Information) that is disclosed to them by the other party.  The parties must not (and must ensure that their representatives do not) use, reproduce or disclose the Confidential Information of the other for any purpose except to the extent necessary to perform their respective obligations under this Agreement.

25.      TRUSTEE

25.1   If the Hirer is acting in the capacity of trustee of any trust (Trust) then, whether or not Ausdirect may have notice of the Trust, the Hirer warrants to and assures Ausdirect as follows:

(a)       the Hirer warrants that the Hirer is the sole trustee of the Trust;

(b)       the Hirer warrants that the Hirer has full and complete power and authority pursuant to the Trust to enter into this Agreement; and

(c)       despite anything contained in any Deed of Trust or Settlement or other document, the Hirer will be personally liable, and will also be liable in the Hirer’s capacity as trustee of the Trust, to Ausdirect for the due performance, fulfilment and observance of the Hirer’s obligations under this Agreement.

26.      GST

26.1   Definitions:

(a)       GST means GST within the meaning of the GST Act.

(b)       GST Act means A New Tax System (Equipment and Services Tax) Act 1999 (as amended).

(c)       Expressions used in this clause 26 have the meanings given to them in the GST Act.

26.2   Amounts payable generally not GST inclusive: An amount payable by a party under this Agreement in respect of a taxable supply by the other party, unless expressed to represent the price of supply, represents the value of the supply and the recipient of the supply must, in addition to that amount and at the same time, pay to the supplier the GST payable in respect of the supply.

26.3   Supplier to provide tax invoice: A party is not obliged to pay the GST on a taxable supply to it under this Agreement, until that party is given a valid tax invoice for the supply.

27.      TERMINATION

27.1   Either party may terminate this Agreement by giving notice in writing to the other party if the other party:

(a)       fails to remedy a breach of this Agreement within 14 days (or such longer period as may be specified in the notice) of receiving a notice from the first-mentioned party requiring it to remedy the breach; or

(b)       becomes insolvent, enters into any arrangement for the purpose of insolvency administration or is placed under official management. 

27.2   In the event of default by the Hirer resulting in the termination of this Agreement under clause 27.1, Ausdirect may, without notice, repossess the Equipment.

27.3   The parties can agree to terminate this Agreement by mutual agreement in writing at any time. 

28.      ACTIONS ON TERMINATION

28.1   On expiration of the Hire Period or upon termination of this Agreement (whichever happens first), the Hirer must:

(a)       pay Ausdirect all arrears of Rent and other amounts which at the date of termination are due and owing to Ausdirect under this Agreement;

(b)       return the Equipment to Ausdirect in good working order and in good repair (fair wear and tear excepted) at the place of business of Ausdirect from which the Equipment was hired, or such other place where Ausdirect directs the Hirer; and

(c)       give Ausdirect any certificates of registration relating to the Equipment and a signed transfer of those certificates in favour of Ausdirect or a person whom Ausdirect nominates.

28.2   If the Equipment is not returned as and when required by clause 28.1(b), Ausdirect or its representative may repossess the Equipment.  For this purpose, Ausdirect or its representative may enter and remain upon any premises where the Equipment is or where Ausdirect suspects that the Equipment is.

28.3   If the Hirer does not return the Equipment as and when required to do so by clause 28.1(b), the Hirer must pay to Ausdirect, on demand, Rent (calculated on a daily basis) for the period in which Ausdirect is not in possession of the Equipment, and the Hirer must otherwise comply with this Agreement until the Equipment is returned.  Nothing in this clause 28.3 operates to affect an extension or renewal of this Agreement.

28.4   Termination of this Agreement for any reason by either party will be without prejudice to the rights and remedies of the parties otherwise having arisen out of this Agreement.

28.5   The provisions of clauses 3.3, 3.5, 8, 19, 20, 21, 22, 23, 24, this clause 28, and clauses 31, 35 and 38 of this Agreement will survive termination of this Agreement.

29.      ASSIGNMENT

Ausdirect may assign or transfer its rights under this Agreement.  The Hirer may only assign or transfer its rights under this Agreement with the prior written approval of Ausdirect. 

30.      NO AGENCY

30.1   This Agreement is not intended to create a partnership, joint venture or agency relationship between the parties. 

30.2   The Hirer and the Hirer’s employees will not, by virtue of this Agreement, be or become an employee or agent of Ausdirect.

30.3   No party has authority to bind another party or act as their agent, and each party agrees not to hold itself out as having that authority or as being another party’s agent.

31.      NOTICES

31.1   All notices and other communications (Notices) provided for or permitted under this Agreement will be sent by certified or registered mail with postage pre-paid, by hand delivery or by electronic mail to the address of each party in the Details or to such other address or person as either party may specify by notice in writing to the other.

31.2   A party may change its address for receipt of Notices at any time by giving appropriate notice to the other party.  Any Notice given under this Agreement may be signed on behalf of a party by the duly authorised representative of that party, and will be sent to the other party to this Agreement.

31.3   All Notices will be deemed to have been duly given or made:

(a)       3 days after being deposited in the mail with postage prepaid;

(b)       when delivered by hand; or

(c)       if sent by electronic mail, when successfully sent or transmitted during business hours, or if not during business hours, when business hours next commence.

32.      FORCE MAJEURE

32.1   No failure or omission by the parties in the performance of any obligation of this Agreement will be deemed a breach of this Agreement nor create any liability if the failure or omission arises from a Force Majeure Event.

32.2   A party seeking to rely upon clause 32.1 must immediately advise the other party by notice in writing of the details of the relevant Force Majeure Event.  If the occurrence of such an event continues for a period of 30 days from the date of such notification, then the other party may by notice in writing, terminate this Agreement.

33.      ENTIRE AGREEMENT

This Agreement constitutes the full and complete understanding between the parties with respect to the subject matter of this Agreement.  There is no other oral understanding, agreement, warranty or representation whether express or implied in any way extending, defining or otherwise relating to the provisions hereof or binding on the parties with respect to any of the matters to which these presents relate.

34.      FURTHER ASSURANCES

Each party will, from time to time at its own cost and expense, make, do and execute and cause to be made done and executed all such acts, things, agreements, deeds, instruments, assurances and other documents as may be necessary, desirable or reasonably required by another party to perfect or give effect to the transactions or agreements contemplated or contained in this Agreement.

35.      NO SET-OFF

A payment required to be made by the Hirer or the Guarantor pursuant to this Agreement must be paid without any deduction, withholding, set-off or counterclaim arising at law, in equity or pursuant to statute.

36.      WAIVER

Failure to exercise or delay in exercising any right, power or privilege in this Agreement by a party does not operate as a waiver of that right, power or privilege.

37.      EXERCISE OF RIGHTS

A single or partial exercise of any right, power or privilege does not preclude any other or further exercise of that right, power or privilege, or the exercise of any other right, power or privilege.

38.      GOVERNING LAW

This Agreement will be governed by and construed in accordance with the law of Queensland and each of the parties hereby submits to the non‑exclusive jurisdiction of the Queensland Courts.

39.      COUNTERPARTS

This Agreement may be executed in 2 or more counterparts, each of which will be deemed an original, and all of which together will constitute one and the same instrument.

40.      DEFINITIONS

Capitalised terms have the meaning given in the Details or as set out below, unless the context otherwise requires:

Agreement: This Equipment Hire Agreement including the Details of Hire section, all amendments and attachments to it.

Consequential Loss: Loss of revenue, loss of profits, loss of anticipated savings or business, pure economic loss, loss of data, loss of value of equipment (other than the cost of repair), loss of opportunity or expectation loss and any other form of consequential, special, indirect, punitive or exemplary loss or damages.

Details means the Details of Hire section on page 1.

Force Majeure Event: Any event beyond the reasonable control of the party affected and includes an event due to natural causes that happens independently of human intervention.

41.      INTERPRETATION

41.1   In this Agreement, headings are for convenience only and will not affect its interpretation.  Except to the extent that the context otherwise requires:-

(a)       reference to any statute or statutory provision will include any modification or re-enactment of, or any legislative provisions substituted for, and all legislation and statutory instruments issued under such legislation or such power;

(b)       words denoting the singular will include the plural and vice versa;

(c)       words denoting individuals will include corporations, associations, trustees, instrumentalities and partnerships and vice versa;

(d)       references to parts, clauses, parties, annexures and schedules are references to parts, clauses, parties, annexures and schedules to this Agreement as modified or varied from time to time;

(e)       references to any document, deed or agreement will include references to such document, deed or agreement as amended, novated, supplemented, varied or replaced from time to time;

(f)        references to any party to this Agreement or any other document, deed or agreement will include its successors or permitted assigns;

(g)       all references to dates and times are to Brisbane time;

(h)       all references to “$” and “dollars” are to the lawful currency of Australia.