08 8947 2078
1300 AM CRANES
0417 726 352
1. Definitions1.1 “AMCR” means A. M. Cranes & Rigging Pty Ltd, its successors and assigns, or any person acting on behalf of, and with the authority of,1.2 A. M. Cranes & Rigging Pty Ltd.1.3 “Client” means the person/s ordering the Plant and/or Services, as specified in any quotation, order, invoice or other document, and:(a) if there is more than one Client, is a reference to each Client jointly and severally;(b) if the Client is a part of a trust, shall be bound in their capacity as a trustee; and(c) includes any person acting on behalf of, or with the authority of, the Client.1.4 “Plant and/or Services” means any equipment or services (including accessories, labour, freight and storage of Goods), provided by AMCR to the Client, at the Client’s request, from time to time, and:(a) such Plant is provided either on a Wet Hire or Dry Hire basis;(b) where the context so permits the terms ‘Plant’, ‘Services’ and/or ‘Personnel’ shall be interchangeable for the other; and(c) shall be as described on the quotation, order, hire agreement, invoice or any other document as provided by AMCR to the Client.1.5 “Personnel” means any individual/s sent by AMCR to the Client for employment on a temporary, casual, or part time basis for the provision of the Services.1.6 “Charges” means the cost of the Plant and/or Services (plus any GST where applicable), as agreed between AMCR and the Client subject to clause 5 of the contract.1.7 “GST” means Goods and Services Tax as defined within the “A New Tax System (Goods and Services Tax) Act 1999” (Cth).1.8 “Dry Hire” means that the Plant is provided by AMCR without an operator.1.9 “Wet Hire” means that the Plant is provided by AMCR with an operator, who shall at all times remain an employee or representative of AMCR.1.10 “Site” means the location/s at which the Plant is to be operated and/or the Services are to be provided.1.11 “Hire Period” means the term of the hire of the Plant and/or provision of the Personnel, as specified in the contract, or such further period as agreed by the parties in writing.1.12 “Minimum Hire Period” means the minimum Hire Period, as specified in the contract, and calculated at the appropriate rate, plus transport costs, unless otherwise specified by AMCR prior to commencement of the Hire Period.1.13 “Goods” means any cargo together with any container, packaging, or pallet(s) to be handled, lifted, carried or stored by way of AMCR’s Services provided to the Client.2. Acceptance2.1 The Client is taken to have exclusively accepted and is immediately bound, jointly and severally, by the contract if the Client places an order for Plant and/or Services, or accepts the delivery or provision thereof (including the delivery of Goods). This applies whether the contract is signed or not.2.2 The contract constitutes the entire contract between the parties and contains all the representations, warranties, covenants and agreements of the parties in relation to the subject matter of the contract.2.3 These terms and conditions may only be amended with the consent of both parties in writing, and shall prevail to the extent of any inconsistency with any other document or contract between the Client and AMCR.2.4 The special conditions (if any) set out by AMCR in any quotation, order, hire agreement or other document shall form part of the contract, unless otherwise stated. In the event of any inconsistency between the special conditions and any other term of the contract, the special conditions shall prevail to the extent of the inconsistency.2.5 A waiver of the Client’s obligations hereunder is ineffective unless it is in writing and is verified and signed by a duty appointed office of AMCR.2.6 None of the Plant shall be sublet or cross-hired by the Client. The Client shall not assign or transfer their interest in the contract or part with possession of all or any portion of the Plant without the prior written consent of AMCR, which consent may be arbitrarily withheld.2.7 Electronic signatures shall be deemed to be accepted by either party providing that the parties have complied with Section 9 of the Electronic Transactions (Northern Territory) Act or any other applicable provisions of that Act or any Regulations referred to in that Act.2.8 The Client acknowledges and accepts that the provision of Plant and/or Services is subject to availability at the time of placement of a firm order by the Client.2.9 It is the Client’s responsibility to notify AMCR of the exact commencement date and off-hire, or completion, date (prior to entry into the contract, where possible) or the actual off-hire, or completion, date on the day of signing the contract.2.10 AMCR is not a Common Carrier, and will accept no liability as such. Accordingly, AMCR reserves the right to refuse to lift or move any particular item(s) at its sole discretion. The Client shall disclose to AMCR the nature of the Goods to be handled, lifted and/or carried. If AMCR deems the Goods are, or may become dangerous or offensive, AMCR may do anything it believes to be appropriate to avoid or minimise any loss, damage or offence.2.11 Any time or date given by AMCR to the Client is an estimate only. The Client must still accept the provision of the Plant and/or Services even if late, and AMCR will not be liable for any loss or damage incurred by the Client as a result of any delay due to reasons beyond the practical control of AMCR (including, but not limited to, any event outlined in clause 16.4, breakdown of Plant, transport delays, accidents, or other labour difficulties, etc.).2.12 In the event the Client is unable to accept provision of the Plant and/or Services, as arranged, or there are any delays due to free and clear access to the Site not being available, AMCR shall be entitled to charge all additional costs involved with redelivery and/or storage, or subsequent attempts at repossessing the Plant, as applicable, and all Charges lost as a direct result of the Plant and/or Personnel being unavailable.3. Errors and Omissions3.1 The Client acknowledges and accepts that AMCR shall, without prejudice, accept no liability in respect of any alleged or actual error(s) and/or omission(s):(a) resulting from an inadvertent mistake made by AMCR in the formation and/or administration of this contract; and/or(b) contained in/omitted from any literature (hard copy and/or electronic) supplied by AMCR in respect of the Services. 3.2 In the event such an error and/or omission occurs in accordance with clause 3.1, and is not attributable to the negligence and/or wilful misconduct of AMCR; the Client shall not be entitled to treat this contract as repudiated nor render it invalid.4. Change in Control4.1 The Client shall give AMCR not less than fourteen (14) days prior written notice of any proposed change of ownership of the Client and/or any other change in the Client’s details (including but not limited to, changes in the Client’s name, address, contact phone or fax number/s, change of trustees, or business practice). The Client shall be liable for any loss incurred by AMCR as a result of the Client’s failure to comply with this clause.5. Charges and Payment5.1 The Client shall pay the Charges to AMCR for the duration of the Hire Period and/or the provision of the Service to the Client by AMCR, which (at AMCR’s sole discretion) shall be either:(a) as indicated on invoices provided by AMCR to the Client in respect of Plant and/or Services provided;(b) AMCR’s current Charges as at the date of delivery of the Plant (or Goods) and/or provision of the Services, according to AMCR’s current rate schedule;(c) AMCR’s quoted Charges (subject to clauses 5.2), which will be valid for the period stated in the quotation, or otherwise for a period of thirty (30) days.5.2 Unless otherwise stated in writing, the rates quoted are for a weekly rate based on the Plant and/or Services provided and:(a) if the Plant and/or Services are required for less than one (1) weeks duration, it will be the Client’s responsibility to request daily rates;(b) where the Plant and/or Services are required (or operated) outside of AMCR’s normal operating hours, an increase to the quoted rates of thirty percent (30%) shall apply.5.3 AMCR reserves the right to change the Charges at any time in the event of a variation to AMCR’s quotation, including any fluctuation in fuel prices, or due to inclement weather or any delay in Delivery due to obstructed access to the Site or any action, or inaction, of the Client. AMCR shall advise the Client in writing of any change to the Charges and the effective date of the change.5.4 Time for payment for the provision of the Plant and/or Services being of the essence, the Charges will be payable by the Client on the date/s determined by AMCR, which may be, failing any notice to the contrary, the date which is seven (7) days following the date of any invoice given to the Client by AMCR.5.5 The Client will make payment to AMCR on/by each due date by cash, cheque, bank cheque, electronic/on-line banking, credit card (a surcharge may apply per transaction), or by any other method as agreed to between the Client and AMCR.5.6 Unless otherwise stated, the Charges include GST. In addition, the Client must pay any other taxes and duties (including stamp duty, import duties, bonds or any other charges which may be levied upon the contract, and/or the use or transport of the Plant) that may be applicable in addition to the Charges, except where they are expressly included in the Charges.5.7 Receipt by AMCR of any form of payment other than cash shall not be deemed to be payment until that form of payment has been honoured, cleared or recognised.5.8 Charges shall not be subject to any set-off or deduction for any reason whatsoever (including for any sums owed or claimed to be owed to the Client by AMCR) and, without limiting the generality of the forgoing:(a) by reason of non-working time howsoever caused, downtime due to normal wear and tear (excepting if the Plant is maintained as per manufacturer’s specification) during the Hire Period or any extension thereof, nor shall the Client be relieved from their responsibility to pay the Charges for the entire Hire Period by reason of the fact that the Plant is returned prior to the Minimum Hire Period;(b) the Client shall not be entitled to withhold payment of any invoice because part of that invoice is in dispute. In the event the Client disputes any part (or all) of any invoice, such dispute must detailed in writing and given to AMCR within seven (7) days of the date of the invoice. If the Client shall fail to comply with this provision, any non-payment of an invoice (in whole or in part) shall entitle AMCR to (at their sole discretion) place the Client’s account into default.5.9 Unless otherwise agreed, money paid by the Client must be applied in the order in which those obligations were incurred.6. Plant Hire6.1 Hire Period(a) Subject to clause 6.2(c), the Hire Period shall commence, and Charges shall be paid by the Client to AMCR, on the assembly of the Plant at the Site, and will continue until (whichever last occurs):(i) notification by the Client that the Plant is ready for collection;(ii) expiry of the Minimum Hire Period;(iii) the termination of the Hire Period by AMCR;(iv) the return of the Plant to AMCR’s depot in good operating condition, reasonable wear and tear excepted.(b) The date of expiry or cessation of the contract shall in all cases be treated as a full day’s hire.(c) Notwithstanding anything contained in the contract to the contrary, AMCR reserves the right to take possession of the Plant at any time and without notice to the Client when, in AMCR’s opinion, the Plant is endangered or imperilled by any reason or cause whatsoever. The Client indemnifies AMCR in respect of any loss arising from any act done under or by virtue of this clause (b). Any action taken by either AMCR or the Client as set forth herein shall be without prejudice to any other rights or remedies that AMCR or Client may have respectively.6.2 Delivery and Transport(a) As agreed by AMCR, and at AMCR’s sole discretion, delivery of the Plant shall take place when the Client takes possession of the Plant at the Client’s nominated Site.(b) Unless otherwise specified in writing:(i) transport costs do not include the assembly and disassembly of the Plant;(ii) for conventional boom cranes, it shall be the Client’s responsibility to supply (at no charge to AMCR) suitable cranage and labour, on commencement and completion of the Hire Period, to carry out the assembly and disassembly of the Plant, and offloading and loading trucks transporting the Plant components. (c) If assembly and/or disassembly are:(i) included in AMCR’s quotation, the Charges include the initial assembly at the commencement of the Hire Period, and the final disassembly at the expiry/termination of the Hire Period. Any other assembly and/or disassembly of the Plant during the Hire Period will be charged additionally to the Client;(ii) not included in AMCR’s quotation, the Charges will commence from the start of assembly of the Plant and continue until the end of the disassembly of the Plant.(d) The Client must provide, and maintain, clear accessibility to the Site at all times in order for AMCR to deliver the Plant, and the cranage area in particular must be levelled and consolidated for the safety of the lifting operation. AMCR reserves the right not to enter the Site if AMCR believes it unsafe, and the Client shall remain liable for the Charges payable until the issue is resolved.6.3 Insurance(a) The Client accepts full responsibility for the safekeeping of the Plant and must effect an All Risk Insurance Policy (and maintain such policy) with an insurer acceptable to AMCR, and in the names of both AMCR and the Client, for their respective rights and interests whilst the Plant is at the Site, or transported between the Site and AMCR’s depot in respect of the following:(i) the full insurable value of the Plant, nominated by AMCR, against such risk as AMCR may nominate, or in the absence of such nomination, against loss or damage by theft, fire, accident and such other risks as are insured against by prudent persons engaged in a similar business to that of the Client;(ii) public risk liability, and any other such insurance in support of the indemnities contained in the contract.(b) The Client must, in respect of any policy of insurance, deliver to AMCR’s office a certificate of currency for the insurance policy prior to the Plant being released for hire, and promptly pay all premiums and stamp duty payable in respect thereof.(c) Each of AMCR and the Client is entitled to receive payments of money under that insurance policy effected pursuant to clause (a) according to its interest in the policy. Each party agrees to assist and cooperate with the other in making, pursuing and settling any claim made under the policy.(d) Without limiting the generality of sub-clause 6.7(a)(iii), and if AMCR requests, the Client will expend all money received by it under the policy in respect to damage to the Plant in restoring or replacing the Plant in its condition prior to the commencement of the contract, subject to reasonable wear and tear, and if such money is insufficient, the Client will make good the deficiency at their own cost.6.4 Title(a) The Plant is and will at all times remain the absolute property of AMCR, and:(i) nothing contained in the contract renders on the Client any right or property or interest in the Plant other than as a hirer;(ii) the Client must return the Plant to AMCR upon request to do so.(b) The Client must not, and must not attempt to, assign, mortgage, pledge, sell, charge, encumber, sublet, part with possession of, grant any lien, license or other encumbrance over, or otherwise dispose of or deal with, or permit or suffer to exist any lien or other encumbrance over, the Plant or any part thereof, or any of the rights of the Client to the Plant, or any of the rights of the Client under the contract, and must keep the Plant free from any distress, execution or other legal process.(c) AMCR may take possession of the Plant with, or without, notice to the Client, and the Client must (at the Client’s expense) immediately on demand, deliver up the Plant in good order and repair in accordance with the directions of AMCR, and in default the Client irrevocably authorises AMCR to enter the Site (or any premises occupied or controlled, or believed by AMCR to be occupied or controlled by the Client) and repossess the Plant, and for such purposes break open any gate or lock and dismantle the Plant from any part thereof to which it may be affixed, and the Client indemnifies AMCR in respect of any loss arising from any act done under or by virtue of this clause.6.5 Risk(a) The Client shall assume all risks and liabilities for and in respect of the Plant and for injuries to or death of persons and damage to property howsoever arising from the possession, use, maintenance, repair or storage of the Plant.(b) The Client shall be solely responsible for any loss or damage to the Plant, including (without limiting the generality of the foregoing) damage done by corrosion, rust, oxidation, and chemical reactions of every nature and kind whatsoever.(c) The Client acknowledges and agrees that:(i) the Client has satisfied themselves as to the condition and suitability of the Plant, and its fitness for the Client’s purposes;(ii) the Client has, prior to signing the contract, examined the Plant and satisfied themselves as to its compliance with the specifications and validity of the warranties of the manufacturer or supplier.6.6 Wet Hire(a) The Client shall:(i) provide amenities and first aid services to the Personnel in compliance with all applicable health and safety legislation in operation in the state where the Services are undertaken;(ii) declare the weight of the Goods, and:(a) AMCR shall be entitled to rely on such declared weight when arranging for the handling thereof;(b) the Client shall be responsible for all extra cost and risk incurred by AMCR, and for any and all damage sustained, by reliance on the declared weight if the weight declared is found to be incorrect.(iii) provide adequate security for any Plant left at the Site overnight or during periods when the Site is left unattended, unless it has been otherwise agreed in writing that AMCR arrange such security on the Client’s behalf.(b) Notwithstanding that the Personnel are employed by AMCR, the Personnel shall operate the Plant in accordance with the instructions of the Client, and accordingly, the Client shall be liable for all responsibility and costs incurred as a result of the actions of the Personnel whilst following the Client’s instructions.(c) In the event the Client requires Personnel to undertake a Site induction during working hours, the Client will be liable to pay the Charges for that period, notwithstanding that the Plant is not being operated during such time. If any induction is undertaken outside of the Hire Period then the Client shall be liable to pay AMCR’s standard (and/or overtime, if applicable) hourly labour rate.(d) Unless otherwise agreed to in writing between the parties, AMCR shall not be deemed the principal contractor and shall not be obligated to maintain any contract works insurance cover or be responsible with regard to any work cover requirements (including, but not limited to, compliancy under any relevant legislation or policy, etc.). 6.7 Dry Hire(a) The Client shall:(i) in operating the Plant, employ or sub-contract only persons who are properly trained, competent and ticketed;(ii) unless included in AMCR’s quotation, be responsible (at its own cost) for the daily servicing of the Plant in accordance with the manufacturer’s specifications (including the supply all fuel, lubricants, top up oils, etc.);(iii) operate, maintain and store the Plant with due care and diligence (securing the Plant when not in use and ensuring that all reasonable measures are taken to protect the Plant), and in compliance with the instructions and recommendations of AMCR and/or manufacturer of the Plant as to its operation, maintenance and storage, or in accordance with any specific instructions of AMCR;(iv) notify AMCR of any accident resulting in the injury to persons or damage to property (including damage to the Plant) involving the Plant within twenty-four (24) hours if the date of the accident. The Client is not absolved from the requirements to safeguard the Plant by giving such notification;(v) provide AMCR free access at all times to the Plant to inspect the same (at the discretion of AMCR), following reasonable notice to the Client;(vi) on expiry or termination of the Hire Period, deliver up to AMCR the Plant (together with all parts and accessories) in clean and good order as delivered (with allowance for fair wear and tear).
6.8 Client’s Obligations(a) The Client shall not:(i) without the prior consent of AMCR, make any alterations, additions or replacements to the Plant;(ii) do or cause or carryout any act, matter or thing which is likely to endanger the safety or condition of the Plant;(iii) remove the Plant from the Northern Territory (or the Site) without the prior written consent of AMCR;(iv) exceed the recommended or legal load and capacity limits of the Plant;(v) use or carry any illegal, prohibited or dangerous substance in, or on, the Plant;(vi) fix any of the Plant in such a manner as to make it a permanent fixture.6.9 The Client indemnifies AMCR against, and shall pay AMCR immediately on demand, all costs relating to:(a) the servicing and/or repair of the Plant, if found to be required by AMCR on collection of the Plant (including where it is found that scheduled servicing has not been performed or there is no evidence of completion of such), and the Client shall:(i) be charged (in addition to the Charges) for any servicing and repairs deemed necessary as a consequence, at AMCR’s current technician charge out rate (available upon request) and the cost of parts/lubricants, freight, plus twenty percent (20%);(ii) continue to pay the Charges at the specified rate until the Plant is returned to good operating condition as determined by AMCR.(b) cleaning the Plant should it be returned in an un-cleaned state;(c) fuel and consumables provided by AMCR and used by the Client.6.10 Notwithstanding AMCR’s retention of title in the Plant, all risk for the Plant passes to the Client on delivery.6.11 The Client is not authorised to pledge AMCR’s credit for repairs to the Plant, or to create a lien over the Plant in respect of any repairs.6.12 In the event of damage to the Plant, the Client shall be responsible to pay on demand all costs involved in repairing such damage, including but, not limited to. damage:(a) caused by the negligence of the Client, or its agent(s), including overloading, abuse, mis-use and maltreatment of the Plant;(b) caused by vandalism.6.13 The Client covenants and agrees that:(a) the Client must not do, or omit to do, any act or thing which might in any way invalidate or prejudice any insurance effected by AMCR or Client in respect of the Plant;(b) notwithstanding whether AMCR or Client has effected insurance in respect of the risks, the Client indemnifies and will keep indemnified AMCR against:(i) the loss or damage to the Plant whether by fire, theft, accident, seizure, confiscation or otherwise;(ii) the appraisal of such loss or damage shall be based upon the replacement value of new plant;(iii) all other losses, damages, claims, penalties, liabilities and expenses, including legal costs, howsoever arising incurred as a result of or in connection with the Plant or the seizure or the taking of possession of the Plant by AMCR.7. Transport and Storage Services7.1 The Client authorises AMCR (in its discretion at any time without notice to the Client) to:(a) deviate from the usual, customary, intended or advertised route or method of transportation of the Goods that may be deemed reasonable or necessary in the circumstances, (including, but not limited to, using the services of any third party to ensure the safety of other road users and property and/or compliance with lawful authority requirements and/or Police or private escorts, road closures and/or transport control, using specialist equipment such as special cooling);(b) comply with any order, direction, recommendation on loading, unloading, departure, routes, place or call, stoppages, destination, arrival, discharge, delivery or otherwise whatsoever given by any lawful authority.7.2 The Charges shall be considered earned in the case of transporting the Goods as soon as the Goods are loaded and despatched f rom the Client’s nominated site.7.3 All Goods received for transport by AMCR are accepted subject to the condition that AMCR shall accept no responsibility for the collection of cash on delivery or any payments on behalf of the Client or any other person. When the Goods are tendered by any person with instructions for AMCR to collect any such payments, AMCR shall not be bound by such instructions, notwithstanding that AMCR may accept the Goods as tendered for the provision of the Services.7.4 Insurance(a) The Goods are carried and stored at all times at the Client’s sole risk, and not at the risk of AMCR. The Client shall be responsible for arranging their own insurance of the Goods, if such is required for the provision of the Services, or will have in place adequate insurance prior to any actions by AMCR, or instruction given to AMCR.7.5 Client’s Responsibility(a) The Client expressly warrants, represents, confirms and/or acknowledges that: (i) AMCR has relied upon the Client in its description of the Goods (including eight, measure, standard, strength, quantity, quality, figures, dimensions and values). Accordingly, AMCR accepts no liability for any discrepancy that may arise with the description;(ii) unless specified otherwise in writing, AMCR has relied upon the Client’s skill in properly packaging, labelling, marking, securing and preparing the Goods, and that the Client has complied with all applicable laws and regulations (including those relating to the any applicable dangerous goods codes) and shall furnish such information and provide such documents as may be necessary to comply with such laws and regulations;(iii) the Client is either the owner, or the authorised agent of the owner, of any Goods or property that is the subject matter of the contract, and:(a) and the Client is authorised by all persons owning or interested in the Goods to enter into the contract;(b) by entering into the contract, the Client accepts these terms and conditions for any owner or party with interest in the Goods, as well as for all other persons on whose behalf the Client is acting.(iv) the Goods are fit for carriage, having undertaken due and careful enquiry the Goods are not dangerous, illegal, hazardous and do not contain any substance resulting in risks not readily apparent from the Client’s description of the Goods;(v) the person handing over the Goods to AMCR is authorised to sign and accept these terms and conditions;(vi) it is the Client’s sole responsibility to address adequately each consignment and to provide written delivery instructions to enable effective delivery.7.6 Dangerous Goods(a) The Client shall not tender any Dangerous Goods for the provision of the Services without declaring such by presenting a full description disclosing the nature of the Goods, and in any event the Client shall be liable for all loss and damage caused thereby, and (if in the opinion of AMCR) the Goods are, or are liable to become, Dangerous Goods, the same may be at any time destroyed, disposed of, abandoned or rendered harmless by AMCR, without compensation to the Client, and without prejudice to AMCR’s right to any change thereunder.7.7 Client-Packed Containers(a) Subject to any written special instructions to the contrary:(i) the Client is solely responsible for the safe and proper packaging of the Goods (including the manner in which the Goods have been packed, the suitability of the Goods for carriage or manner or packaging and/or the condition of the packaging, and the conformity of any containers, packaging or pallets with any requirements of the Consignee, etc.) and for any loss suffered or incurred by any person (including the Client) through any such failure;(ii) AMCR is not obliged to pack the Goods or to provide any plant, power or labour required for loading and/or unloading of the Goods;(iii) the Client agrees that if there are no visible tie down points (or indicated tie down points) on the Goods, AMCR will use its best judgement for the restraint methods and tie down for the Goods. The Client will indemnify AMCR of any wrong doing or any possible damage caused thereby.7.8 Loss or Damage(a) Subject to any statutory provisions imposing liability in respect of the loss of or damage to the Goods, the Goods shall be and remain at the Client’s sole risk, and AMCR shall not be under any liability for:(i) any loss or damage suffered by the Client (or any third party) as a result of the Client contravening clause 7.5;(ii) any delay or any loss or damage to the Goods occasioned during carriage arising from any force majeure event or compliance with the directions of any person or lawful authority entitled to give them;(iii) deterioration, contamination (including any contamination of any grain or other cargo compromising the Goods), evaporation, wrongful delivery, misdelivery, delay in delivery or non-delivery of the Goods whenever or howsoever occurring (and whether the Goods are or have been in the possession of AMCR or not) or any injury or loss of any nature whatsoever;(iv) any instructions, advice, information or service given or provided to any person, whether in respect of the Goods or any other thing or matter, nor for any consequential or indirect loss, loss of market or consequences of delay;(v) any act or omission whether wilful, reckless, negligent or otherwise of AMCR, or its servants or agents or sub-contractors;(vi) any latent defect or inherent vice or natural deterioration or wastage of the Goods or packaging;(vii) any act, omission or neglect of the Client, including any breach of its obligations under the contract, insufficient or improper packaging, labelling or addressing, or failure to take delivery, or any handling, loading, storage or unloading of the Goods.7.9 Storage(a) AMCR is authorised to remove the Goods from one warehouse to another without cost to the Client. AMCR will notify the Client of the removal and advise the address of the warehouse to which the Goods are being removed not less than five (5) days before removal (except in emergency, when such notice will be given as soon as possible).(b) The Client is entitled, upon giving AMCR reasonable notice, to inspect the Goods in store but a reasonable charge may be made by AMCR for this service.(c) Subject to payment for the balance of any agreed fixed or minimum period of storage, the Client may require the Goods to be removed from the store at any time on giving AMCR not less than five (5) working days’ notice. If the Client gives AMCR less than the required notice, AMCR will still use its best endeavours to meet the Client’s requirements, but shall be entitled to make a reasonable additional charge for the short notice.(d) The Client agrees to remove the Goods from storage within twenty-eight (28) days of a written notice of requirement from AMCR to do so. In default, AMCR may enforce its rights under clause 220.127.116.11 Lien(a) In addition to its rights under the Warehouseman’s Liens Act, AMCR shall have and retain a general lien on any Goods owned by the Client and in the possession or control of AMCR (and any documents relating to those Goods) for pecuniary obligations owing from time to time by the Client on any account whatsoever to AMCR (including, but not limited, to payment of the Charges), and AMCR shall have the right to sell such Goods by public auction or private treaty after giving fourteen (14) days’ notice to the Client. AMCR shall be entitled to retain the sums due to it, in addition to the charges incurred in detention and sale of such Goods, from the proceeds of sale and shall render any surplus to the entitled person. Any such sale shall not prejudice or affect AMCR’s right to recover from the Client any charges due or payable in respect of the carriage or such detention and sale. (b) Notwithstanding sub-clause (a), nothing shall prejudice AMCR’s rights to use any of AMCR’s other rights and remedies contained in the contract to recover any outstanding charges or fees payable in respect of the Goods that were not recovered out the sale of the Goods in accordance with sub-clause (a), and no exception shall be taken upon the grounds that the price realised is less than the full market value of the Goods.8. Labour Hire8.1 AMCR undertakes to use its best endeavours to provide suitably qualified Personnel to provide the Services in compliance with the Client’s requirements.8.2 AMCR must be advised by the Client of any specific site or project allowances which may be applicable. All such allowances (including, but not limited to, meal, travel or tool allowances) shall be on-charged to the Client accordingly.8.3 The Client acknowledges that only lunch breaks shall be deducted from total hours charged by AMCR to the Client.8.4 The Client agrees that they shall supply to AMCR (on the day specified by AMCR) a duly authorised timesheet to enable AMCR to pay Personnel when due.8.5 It is the responsibility of the Client to:(a) provide supervision of Personnel to ensure that the Services are provided satisfactorily;(b) provide Personnel with appropriate information, supervision and training to enable them to provide the Services safely;(c) provide Personnel with a workplace specific and job specific induction if necessary. This induction is to be completed before the Personnel commences the Services, and the Client will be liable to pay AMCR’s hourly labour rates for that period, notwithstanding that the Personnel (and any hired Plant, if applicable) is not being utilised during such time. If any induction is undertaken outside of AMCR’s standard working hours then the Client shall be liable to pay AMCR’s overtime rates;(d) familiarise the Personnel with the Client’s operations, facilities, policies and procedures, and properly inform AMCR of any specific requirements of the Services which the Personnel will be required to provide;(e) provide safe working conditions and to comply with all statutory and other obligations that are applicable pursuant to Australian law (including but not limited to, Work Health and Safety legislation) applicable to employers and otherwise to treat Personnel as if they were employed by the Client;(f) effect and maintain insurance cover in respect of any claims which may be made against the Client by Personnel that arises as a result of the Client’s occupation of premises, and otherwise in respect of any act or omission in respect of machinery, equipment or vehicle(s) used by the Personnel, and to indemnify AMCR against any such claims;(g) properly maintain plant and equipment (including any Plant supplied on hire by AMCR);(h) provide, where Personnel may be required to ‘stand down’ because of adverse weather conditions, a minimum ‘stand down’ payment of not less than four (4) hours per individual, unless an alternative minimum payment has been agreed between AMCR and the Client in writing.8.6 The Client agrees that:(a) it will not request Personnel to engage in any work or use any equipment that the Personnel is unfamiliar with, or unqualified to use or perform, or have not received adequate training for;(b) it will immediately notify AMCR of any variation of duties given to Personnel that may affect the remuneration payable to the Personnel, or may involve additional risk to the Personnel;(c) it will immediately notify AMCR of any injury sustained by the Personnel;(d) any working environment in which the Personnel is placed during the period of the engagement will comply with all applicable equal opportunity legislation or regulations. The Client agrees to immediately notify AMCR if the Personnel is involved in a sexual harassment or discrimination claim during the performance of the Services.8.7 The Client acknowledges that:(a) it remains responsible for controlling the manner, time and place in which the Personnel shall carry out the Services as assigned by the Client, and that in doing so the Client shall be liable for all acts and omissions of the Personnel the same as it would be for any of its own employees;(b) AMCR makes no representation or guarantee that the Personnel will achieve a certain level of performance, achieve a certain outcome, solve a particular problem or attain a specific goal.8.8 In no circumstances shall AMCR be liable for any personal injury resulting in injury or death, loss and/or damage or expense arising out of, or caused by, any act or omission of the Personnel whether or not any such act or omission is negligent, and the Client acknowledges and agrees to indemnify AMCR against all such liability whether alleged or proved. The Client is to include all Personnel in the Client’s own public liability insurance cover.8.9 The Client agrees not to employ, contract, subcontract or utilise in any way an employee or past employee of AMCR (other than through AMCR) for a period of no less than twelve (12) months after that employee’s last employment with AMCR. The Client agrees that if this clause is contravened AMCR will be able to invoice the Client at its current hourly rate the hours that the employee has been employed, contracted, subcontracted or utilised in any way by the Client, and agrees to pay said invoice in accordance with the standard payment terms contained in the contract.
9. Personal Property Securities Act 2009 (“PPSA”)9.1 In this clause financing statement, financing change statement, security agreement, and security interest has the meaning given to it by the PPSA.9.2 Upon assenting to these terms and conditions in writing the Client acknowledges and agrees that these terms and conditions constitute a security agreement for the purposes of the PPSA and creates a security interest in:(a) all Plant previously provided (if any), and that will be provided in the future, by AMCR to the Client;(b) all Goods being handled, lifted, carried or stored by AMCR, over which AMCR invokes a lien;(c) all the Client’s present and after acquired property, being a charge, including anything in respect of which the Client has at any time a sufficient right, interest or power to grant a security interest in for the purposes of securing repayment of all monetary obligations of the Client to AMCR for Services (collateral) – that have previously been provided (if any), and that will be provided in the future, by AMCR to the Client.9.3 The security interest created under the contract is a purchase money security interest (“PMSI”) to the extent that it can be under section 14 of the PPSA. The Client agreed that all collateral is, at any time, subject to AMCR’s security interest.9.4 The Client agrees that, to the extent possible under the PPSA, that all collateral which is at any time subject to AMCR’s security interest secures, as a PMSI, the interest of AMCR as lessor of all collateral supplied to the Client. This does not limit what other amounts are secured under the contract.9.5 The Client undertakes to:(a) promptly sign any further documents and/or provide any further information (such information to be complete, accurate and up-to-date in all respects) which AMCR may reasonably require to:(i) register a financing statement or financing change statement in relation to a security interest on the Personal Property Securities Register;(ii) register any other document required to be registered by the PPSA;(iii) correct a defect in a statement referred to in clause 9.5(a)(i) or 9.5(a)(ii);(iv) enabling AMCR to gain first priority (or any other priority agreed to by AMCR in writing) in relation to its security interest.(b) indemnify, and upon demand reimburse, AMCR for all expenses incurred in registering a financing statement or financing change statement on the Personal Property Securities Register established by the PPSA or releasing any registration made thereby;(c) not register a financing change statement in respect of a security interest without the prior written consent of AMCR;(d) not register, or permit to be registered, a financing statement or a financing change statement in relation to the security in favour of a third party without the prior written consent of AMCR.9.6 AMCR and the Client agree that sections 96, 115 and 125 of the PPSA do not apply to the security agreement created by these terms and conditions.9.7 The Client waives its rights to receive notices under sections 95, 118, 121(4), 130, 132(3)(d) and 132(4) of the PPSA.9.8 The Client waives its rights as a grantor and/or a debtor under sections 142 and 143 of the PPSA.9.9 Unless otherwise agreed to in writing by AMCR, the Client waives its right to receive a verification statement in accordance with section 157 of the PPSA.9.10 In relation to section 128, 129 and 134, the Client agrees that, in addition to its rights under the PPSA, AMCR shall have the power to retain, deal with or dispose of any Plant in the manner specified in those sections, but also under the contract, in any other manner it deems fit.9.11 Solely for the purpose of allowing AMCR the benefit of section 275(6) of the PPSA, the Client and AMCR agree that neither party must disclose information of the kind that can be requested under section 275(1) of the PPSA. However, AMCR’s aggregate liability for disclosure in breach of this clause shall be limited to one dollar ($1.00).9.12 The Client must unconditionally ratify any actions taken by AMCR under clauses 9.2 to 18.104.22.168 Subject to any express provisions to the contrary (including those contained in this clause 9) nothing in these terms and conditions is intended to have the effect of contracting out of any of the provisions the PPSA.9.14 Only to the extent that the hire of the Plant exceeds a two (2) year hire period with the right of renewal shall clause 9 apply as a security agreement in the form of a PPS Lease in respect of Section 20 of the PPSA, in all other matters this clause 9 will apply generally for the purposes of the PPSA.10. Security and Charge10.1 In consideration of AMCR agreeing to provide the Plant and/or Services, the Client charges all of its rights, title and interest (whether joint or several) in any land, realty or other assets capable of being charged, owned by the Client either now or in the future, to secure the performance by the Client of its obligations under these terms and conditions (including, but not limited to, the payment of any money).10.2 The Client indemnifies AMCR from and against all AMCR’s costs and disbursements including legal costs on a solicitor and own client basis incurred in exercising AMCR’s rights under this clause.10.3 The Client irrevocably appoints AMCR and each director of AMCR as the Client’s true and lawful attorney/s to perform all necessary acts to give effect to the provisions of this clause 10 including, but not limited to, signing any document on the Client’s behalf.11. Defects, Warranties and Returns, Competition and Consumer Act 2010 (“CCA”)11.1 All conditions and warranties, express or implied, whether arising by statute or otherwise, as to the condition, suitability, quality, fitness for any purpose or safety of or title to the Plant and/or Services are hereby negated and excluded to the full extent permitted by the law, and AMCR gives no such warranty or condition, and the Client acknowledges that AMCR has not given any such warranty or condition.11.2 The terms of the contract that exclude or limit AMCR’s liability shall apply only to the extent permitted by law, and subject to the provisions of the CCA and other statutes from time to time in force which cannot be excluded, restricted or modified, or which can only be excluded, restricted or modified to a limited extent, and if any such statutes apply to the contract, then to the extent to which AMCR is entitled to do so, AMCR’s liability under such statutes shall be limited to:(a) the replacement of the Plant, or the supply of plant similar to the Plant, or the payment of the cost of having the Plant repaired, or the repair of the Plant;(b) the rectification of the Services, or the re-provision of the Services, or the payment of the cost of have the Services re-provided.11.3 If AMCR is required to rectify/repair, re-provide, or pay the cost of re-providing the Plant and/or Services under clause 11.2 or the CCA, but is unable to do so, then AMCR may refund any money the Client has paid for the hire of the Plant and/or the Services, but only to the extent that such refund shall only be applicable for the residual proportion of the Hire Period, and/or shall take into account the value of Services which have been provided to the Client which were not defective.11.4 Notwithstanding clauses 11.1 and 11.2, but subject to the CCA, AMCR 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 Plant;(b) the Client interfering with the Plant and/or Services in any way without AMCR’s written approval to do so;(c) the Client using the Plant and/or Services for any purpose other than that for which they were designed; (d) the Client continuing the use of the Plant and/or Services after any defect became apparent or should have become apparent to a reasonably prudent operator or user;(e) the Client failing to follow any instructions or guidelines provided by AMCR;(f) fair wear and tear, any accident, or act of God.
12. Default and Consequences of Default12.1 Interest on overdue invoices shall accrue daily from the date when payment becomes due, until the date of payment, at a rate of two and a half percent (2.5%) per calendar month (and at AMCR’s sole discretion such interest shall compound monthly at such a rate) after as well as before any judgment.12.2 If the Client owes AMCR any money, the Client shall indemnify AMCR from and against all costs and disbursements incurred by AMCR in recovering the debt (including but not limited to internal administration fees, legal costs on a solicitor and own client basis, AMCR’s contract default fee, and bank dishonour fees).12.3 Further to any other rights or remedies AMCR may have under the contract, if the Client has made payment to AMCR, and the transaction is subsequently reversed, the Client shall be liable for the amount of the reversed transaction, in addition to any further costs incurred by AMCR under this clause 12 where it can be proven that such reversal is found to be illegal, fraudulent or in contravention to the Client’s obligations under the contract.12.4 Without prejudice to AMCR’s other remedies at law, AMCR shall be entitled to cancel all, or any part, of any order of the Client which remains unfulfilled, and all amounts owing to AMCR shall, whether or not due for payment, become immediately payable if:(a) any money payable to AMCR becomes overdue, or in AMCR’s opinion the Client will be unable to make a payment when it falls due;(b) the Client has exceeded any applicable credit limit provided by AMCR;(c) 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;(d) a receiver, manager, liquidator (provisional or otherwise) or similar person is appointed in respect of the Client or any asset of the Client.13. Cancellation/Termination13.1 Without prejudice to any other remedies AMCR may have, if at any time the Client is in breach of any obligation (including those relating to payment) under these terms and conditions AMCR may suspend or terminate the provision of Plant and/or Services to the Client, and repossess the Plant in accordance with clause 6.4(c). AMCR will not be liable to the Client for any loss or damage the Client suffers because AMCR has exercised its rights under this clause.13.2 AMCR may terminate the contract, or cancel the provision of the Plant and/or Services and at any time before the Plant is delivered and/or the Services have commenced, by giving written notice to the Client. On giving such notice AMCR shall repay to the Client any sums paid in respect of the Charges. AMCR shall not be liable for any loss or damage whatsoever arising from such cancellation.13.3 In the event that the Client terminates the contract, or otherwise cancels its order for the provision of Plant and/or Services, the Client:(a) must provide notice of such to AMCR at least twenty-four (24) hours (including where prior to any specified date for delivery);(b) the Client shall be liable for all Charges (for the duration of the Minimum Hire Period), being any and all loss incurred (whether direct or indirect) by AMCR as a direct result of the cancellation (including, but not limited to, any loss of profits).14. Privacy Act 198814.1 The Client agrees for AMCR to obtain from a credit reporting body (CRB) a credit report containing personal credit information (e.g. name, address, D.O.B, occupation, previous credit applications, credit history) about the Client in relation to credit provided by AMCR.14.2 The Client agrees that AMCR may exchange information about the Client with those credit providers and with related body corporates for the following purposes:(a) to assess an application by the Client;(b) to notify other credit providers of a default by the Client;(c) to exchange information with other credit providers as to the status of this credit account, where the Client is in default with other credit providers;(d) to assess the creditworthiness of the Client including the Client’s repayment history in the preceding two (2) years.14.3 The Client consents to AMCR being given a consumer credit report to collect overdue payment on commercial credit.14.4 The Client agrees that personal credit information provided may be used and retained by AMCR for the following purposes (and for other agreed purposes or required by):(a) the provision of Plant and/or Services;(b) analysing, verifying and/or checking the Client’s credit, payment and/or status in relation to the provision of Plant and/or Services;(c) processing of any payment instructions, direct debit facilities and/or credit facilities requested by the Client;(d) enabling the collection of amounts outstanding in relation to the Plant and/or Services.14.5 AMCR may give information about the Client to a CRB for the following purposes:(a) to obtain a consumer credit report;(b) allow the CRB to create or maintain a credit information file about the Client including credit history.14.6 The information given to the CRB may include:(a) personal information as outlined in 14.1 above;(b) name of the credit provider and that AMCR is a current credit provider to the Client;(c) whether the credit provider is a licensee;(d) type of consumer credit;(e) details concerning the Client’s application for credit or commercial credit (e.g. date of commencement/termination of the credit account and the amount requested);(f) advice of consumer credit defaults, overdue accounts, loan repayments or outstanding monies which are overdue by more than sixty(60) days and for which written notice for request of payment has been made and debt recovery action commenced or alternatively that the Client no longer has any overdue accounts and AMCR has been paid or otherwise discharged and all details surrounding that discharge (e.g. dates of payments);(g) information that, in the opinion of AMCR, the Client has committed a serious credit infringement;(h) advice that the amount of the Client’s overdue payment is equal to or more than one hundred and fifty dollars ($150).14.7 The Client shall have the right to request (by email) from AMCR:(a) a copy of the information about the Client retained by AMCR and the right to request that AMCR correct any incorrect information;(b) that AMCR does not disclose any personal information about the Client for the purpose of direct marketing.14.8 AMCR will destroy personal information upon the Client’s request (by email) or if it is no longer required unless it is required in order to fulfil the obligations of the contract or is required to be maintained and/or stored in accordance with the law.14.9 The Client can make a privacy complaint by contacting AMCR via email. AMCR will respond to that complaint within seven (7) days of receipt and will take all reasonable steps to make a decision as to the complaint within thirty (30) days of receipt of the complaint. In the event that the Client is not satisfied with the resolution provided, the Client can make a complaint to the Information Commissioner at www.oaic.gov.au.15. Service of Notices15.1 Any written notice given under this contract shall be deemed to have been given and received:(a) by handing the notice to the other party, in person;(b) by leaving it at the address of the other party as stated in this contract;(c) by sending it by registered post to the address of the other party as stated in this contract;(d) if sent by facsimile transmission to the fax number of the other party as stated in this contract (if any), on receipt of confirmation of the transmission;(e) if sent by email to the other party’s last known email address.15.2 Any notice that is posted shall be deemed to have been served, unless the contrary is shown, at the time when by the ordinary course of post, the notice would have been delivered.16. General16.1 The failure by either party to enforce any provision of these terms and conditions shall not be treated as a waiver of that provision, nor shall it affect that party’s right to subsequently enforce that provision. If any provision of these terms and conditions shall be invalid, void, illegal or unenforceable the validity, existence, legality and enforceability of the remaining provisions shall not be affected, prejudiced or impaired.16.2 These terms and conditions and any contract to which they apply shall be governed by the laws of the Northern Territory, the Territory in which AMCR has its principal place of business, and are subject to the jurisdiction of the courts in the Northern Territory.16.3 Subject to clause 11, AMCR shall be under no liability whatsoever to the Client for any indirect and/or consequential loss and/or expense (including loss of profit or any rectification costs), or any third party claims, suffered by the Client in connection with the use of the Plant and/or the provision of Services by AMCR, or arising out of a breach by AMCR of these terms and conditions. Alternatively, AMCR’s liability shall be limited to damages which under no circumstances shall exceed the Charges.16.4 AMCR may licence and/or assign all or any part of its rights and/or obligations under this contract without the Client’s consent.16.5 The Client cannot licence or assign without the written approval of AMCR.16.6 AMCR may elect to subcontract out any part of the Services but shall not be relieved from any liability or obligation under this contract by so doing. Furthermore, the Client agrees and understands that they have no authority to give any instruction to any of AMCR’s sub-contractors without the authority of AMCR.16.7 The Client agrees that AMCR may amend these terms and conditions by notifying the Client in writing. These changes shall be deemed to take effect from the date on which the Client accepts such changes, or otherwise at such time as the Client makes a further request for AMCR to provide Plant and/or Services to the Client.16.8 Neither party shall be liable for any default due to any act of God, war, terrorism, civil disturbance, riot, Government intervention or regulations, Council conditions or specifications, strike, lock-out, industrial action/dispute, fire, flood, storm or other event beyond the reasonable control of either party.16.9 Both parties warrant that they have the power to enter into this contract and have obtained all necessary authorisations to allow them to do so, they are not insolvent and that this contract creates binding and valid legal obligations on
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Terms & Conditions
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