Terms & Conditions

 

Definitions

  1. “MK” means Makana Hire, its successors and assigns or any person acting on behalf of and with the authority of Makana
  2. “Client” means the Client or any person acting on behalf of and with the authority of the Client, as specified in any invoice, document or order, and if there is more than one Client is a reference to each Client jointly and
  3. “Equipment” means all Equipment (including any accessories) supplied on hire by MH to the Client (and where the context so permits shall include any incidental supply of services). The Equipment shall be as described on the invoices, quotation, authority to hire, or any other work authorisation forms as provided by MH to the
  4. “Hire Period” means the Hire Period as described on the invoices, quotation, authority to hire, or any other forms as provided by MH to the
  5. “Hire Charge” means the cost of the hire of the Equipment as agreed between MH and the Client subject to clause 5 of this

 

 

Acceptance

  1. The Client is taken to have exclusively accepted and is immediately bound, jointly and severally, by these terms and conditions if the Client places an order for, or accepts delivery of, the
  2. These terms and conditions may only be amended with MH’s consent in writing and shall prevail to the extent of any

 

inconsistency with any other document or agreement between the Client and MH.

  1. The Client agrees that MH reserves the right to review, withdraw, and/or vary the Client’s credit terms at any time and without

 

Electronic Transactions Act 2000

  1. Electronic signatures shall be deemed to be accepted by either party providing that the parties have complied with Section 9 of the Electronic Transactions Act 2000 or any other applicable provisions of that Act or any Regulations referred to in that Act.

 

Change in Control

  1. The Client shall give MH 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, or business practice). The Client shall be liable for any loss incurred by MH as a result of the Client’s failure to comply with this clause.

 

Hire Charge and Payment

  1. At MH’s sole discretion the Hire Charge shall be either:
    • as indicated on invoices provided by MH to the Client in respect of Equipment supplied on hire; or
    • MH’s current Hire Charge, at the date of delivery of the Equipment, according to MH’s current price list; or
    • MH’s quoted Hire Charge (subject to clause 5.2) which shall be binding upon MH provided that the Client shall accept in writing MH’s quotation within thirty (30)
  2. In addition, where the Hire relates to a motor vehicle, a ‘per kilometre’ charge may apply, based on the number of

 

kilometres that MH reasonably believes the Equipment (motor vehicle) travelled during the Hire Period.

  1. MH reserves the right to change the Hire Charge in the event of a variation to MH’s
  2. At MH’s sole discretion, a deposit (in the form of a bond) shall be required at the commencement of this contract, which shall be refunded to the Client by within thirty (30) days of the return of the Equipment, provided that the Client has complied with their obligations hereunder. The deposit may be used to offset any applicable charges payable by the Client under clause 2 , and any outstanding balance thereof shall be due as per clause 5.4.
  3. Time for payment for the Equipment being of the essence, the Hire Charge will be payable by the Client on the date/s determined by MH, which may be:
  4. before delivery of the Equipment; or
  5. made by instalments in accordance with MH’s payment schedule; or
  6. twenty (20) days following the end of the month in which a statement is posted to the Client’s address or address for notices;
  7. the date specified on any invoice or other form as being the date for payment; or
  8. failing any notice to the contrary, the date which is seven

(7) days following the date of any invoice given to the Client by MH.

  1. Payment may be made by cash, electronic/on-line banking, credit card (plus a surcharge of two and a half percent (2.5%) of the Hire Charge) or by any other method as agreed to between the Client and

 

  1. Unless otherwise stated the Hire Charge does not include In addition to the Hire Charge the Client must pay to MH an amount equal to any GST MH must pay for any supply by MH under this or any other agreement for the hire of the Equipment. The Client must pay GST, without deduction or set off of any other amounts, at the same time and on the same basis as the Client pays the Hire Charge. In addition the Client must pay any other taxes and duties that may be applicable in addition to the Hire Charge except where they are expressly included in the Hire Charge.
  2. Receipt by MH 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

 

 

Hire Period

  1. For Equipment in which a timing device is installed the hire period shall be the number of hours or part thereof recorded on the timing device whilst the Equipment is in the Client’s
  2. Where the Equipment does not have a timing device installed hire charges shall commence from the time the Equipment departs from MH’s premises and will continue until the return of the Equipment to MH’s premises, and/or until the expiry of the Hire Period, whichever last occurs. The Hire Period may be extended for one or more definite periods by mutual
  3. The date upon which the Client advises of termination shall in all cases be treated as a full day’s
  4. No allowance whatsoever can be made for time during which the Equipment is not in use for any reason, unless MH confirms special prior arrangements in In the event of

 

Equipment breakdown provided the Client notifies MH immediately, hiring charges will not be payable during the time the Equipment is not working, unless the condition is due to negligence or misuse on the part of or attributable to the Client.

  1. Off-hire receipts will only be issued when the Equipment has been either collected by MH, or returned to MH’s

Delivery

  1. Delivery (“Delivery”) of the Equipment is taken to occur at the time that:
    • the Client or the Client’s nominated carrier takes possession of the Equipment at MH’s premises; or
    • MH (or MH’s nominated carrier) delivers the Equipment to the Client’s nominated address even if the Client is not present at the
  2. At MH’s sole discretion the cost of delivery is either included in the Hire Charge or is in addition to the Hire
  3. Where MH is to deliver the Equipment the Client shall make all arrangements necessary to take delivery of the Equipment whenever it is tendered for delivery. In the event that the Client is unable to take delivery of the Equipment as arranged then MH shall be entitled to charge a reasonable fee for
  4. MH may deliver the Equipment by separate instalments. Each separate instalment shall be invoiced and paid for in accordance with the provisions in these terms and
  5. Any time or date given by MH to the Client is an estimate only. The Client must still accept delivery of the Equipment even if late and MH will not be liable for any loss or damage incurred by the Client as a result of the delivery being

 

Risk

  1. MH retains property in the Equipment nonetheless all risk for the Equipment passes to the Client on
  2. The Client accepts full responsibility for the safekeeping of the Equipment and indemnifies MH for all loss, theft, or damage to the 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
  3. The Client will insure, or self-insure, MH’s interest in the Equipment against physical loss or damage including, but not limited to, the perils of accident, fire, theft and burglary and all other usual risks and will effect adequate Public Liability Insurance covering any loss, damage or injury to property arising out of the Equipment. Further the Client will not use the Equipment nor permit it to be used in such a manner as would permit an insurer to decline any
  4. The Client accepts full responsibility for and shall keep MH indemnified against all liability in respect of all actions, proceedings, claims, damages, costs and expenses in respect of any injury to persons, damage to property, or otherwise arising out of the use of the Equipment during the hire period and whether or not arising from any negligence, failure or omission of the Client or any other

 

Title

  1. The Equipment is and will at all times remain the absolute property of MH, and the Client must return the Equipment to MH upon request to do
  2. If the Client fails to return the Equipment to MH as is required under this agreement or when requested to do so, then MH or MH’s agent may (as the invitee of the Client) enter upon and into any land and premises owned, occupied or used by the Client, or any premises

 

where the Equipment is situated and take possession of the Equipment, without being responsible for any damage thereby caused. Any costs incurred by MH as a result of MH so repossessing the Equipment shall be charged to the Client.

  1. The Client is not authorised to pledge MH’s credit for repairs to the Equipment or to create a lien over the Equipment in respect of any

 

 

 

Personal Property Securities Act 2009 (“PPSA”)

 

 

 

  1. In this clause financing statement, financing change statement, security agreement, and security interest has the meaning given to it by the PPSA.
  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 all Equipment that has previously been supplied and that will be supplied in the future by MH to the
  3. The Client undertakes to:
    1. 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 MH may reasonably require to:
      • register a financing statement or financing change statement in relation to a security interest on the Personal Property Securities Register;
      • register any other document required to be registered by the PPSA; or

 

  • correct a defect in a statement referred to in clause 10.3(a)(i) or 10.3(a)(ii);
  1. indemnify, and upon demand reimburse, MH 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 Equipment charged thereby;
  2. not register a financing change statement in respect of a security interest without the prior written consent of SMH;
  3. not register, or permit to be registered, a financing statement or a financing change statement in relation to the Equipment in favour of a third party without the prior written consent of
  1. MH 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
  2. The Client waives their rights to receive notices under sections 95, 118, 121(4), 130, 132(3)(d) and 132(4) of the PPSA.
  3. The Client waives their rights as a grantor and/or a debtor under sections 142 and 143 of the PPSA.
  4. Unless otherwise agreed to in writing by MH, the Client waives their right to receive a verification statement in accordance with section 157 of the PPSA.
  5. The Client must unconditionally ratify any actions taken by MH under clauses 3 to 10.5.
  6. Subject to any express provisions to the contrary nothing in these terms and conditions is intended to have the effect of contracting out of any of the provisions the PPSA.

 

Security and Charge

 

  1. In consideration of MH agreeing to supply Equipment, 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).
  2. The Client indemnifies MH from and against all MH’s costs and disbursements including legal costs on a solicitor and own client basis incurred in exercising MH’s rights under this
  3. The Client irrevocably appoints MH and each director of MH as the Client’s true and lawful attorney/s to perform all necessary acts to give effect to the provisions of this clause 11 including, but not limited to, signing any document on the Client’s

 

 

 

Defects, Warranties and Returns, Competition and Consumer Act 2010 (CCA)

 

 

 

  1. The Client must inspect the Equipment on delivery and must within twenty-four (24) hours of delivery notify MH in writing of any evident defect/damage, shortage in quantity, or failure to comply with the description or The Client must notify any other alleged defect in the Equipment as soon as reasonably possible after any such defect becomes evident. Upon such notification the Client must allow MH to inspect the Equipment.
  2. Under applicable State, Territory and Commonwealth Law (including, without limitation the CCA), certain statutory implied guarantees and warranties (including, without limitation the statutory guarantees under the CCA) may be implied into these terms and conditions (Non-Excluded Guarantees).

 

  1. MH acknowledges that nothing in these terms and conditions purports to modify or exclude the Non-Excluded
  2. Except as expressly set out in these terms and conditions or in respect of the Non-Excluded Guarantees, MH makes no warranties or other representations under these terms and conditions including but not limited to the quality or suitability of the Equipment. MH’s liability in respect of these warranties is limited to the fullest extent permitted by
  3. If the Client is a consumer within the meaning of the CCA, MH’s liability is limited to the extent permitted by section 64A of Schedule
  4. If MH is required to rectify, re-supply, or pay the cost of re-supplying any services or Equipment under this clause or the CCA, but is unable to do so, then MH may refund any money the Client has paid for the services or Equipment but only to the extent that such refund shall take into account the value of any services or Equipment and consumables which have been provided to the Client which were not
  5. If the Client is not a consumer within the meaning of the CCA, MH’s liability for any defect or damage in the services or Equipment is:
    • limited to the value of any express warranty or warranty card provided to the Client by MH at MH’s sole discretion;
    • limited to any warranty to which MH is entitled, if MH did not manufacture the Equipment;
    • otherwise negated
  6. Notwithstanding clauses 1 to 12.7 but subject to the CCA, MH shall not be liable for any defect or damage which may be caused or partly caused by, or arise as a result of:
    • the Client failing to properly maintain or store any Equipment;

 

  • the Client interfering with the Equipment in any way without MH’s written approval to do so;
  • the Client using the Equipment for any purpose other than that for which it was designed;
  • the Client continuing the use of the Equipment after any defect became apparent or should have become apparent to a reasonably prudent operator or user;
  • the Client failing to follow any instructions or guidelines provided by MH;
  • fair wear and tear, any accident, or act of

 

 

 

Client’s Responsibilities

 

 

 

  1. The Client shall:
    • ensure that the operator of any Equipment is not under the influence of alcohol or any drug that may impair their ability to operate the Equipment;
    • ensure that all persons driving and/or operating Equipment are suitably instructed in the Equipment’s safe and proper use and where necessary that the operator holds a current Certificate of Competency and/or are fully licensed to drive and/or operate the Equipment (a learner’s licence or restricted licence is insufficient) and shall provide evidence of the same to MH upon request;
    • maintain the Equipment as is required by MH (including, but not limited to, maintaining (where applicable) water, oil and fluid levels and tyre pressures);
    • ensure that all reasonable care is taken by the driver in handling and/or parking the Equipment and that the

 

Equipment is left locked and/or securely stored when not in use;

  • be liable for any parking or traffic infringement, impoundment, towage and storage costs incurred during the hire period and will supply relevant details as required by the Police and/or MH relating to any such matters or occurrences;
  • not carry any animals, illegal, prohibited or dangerous on, or in, the Equipment supplied without the prior written permission of MH;
  • not exceed the recommended or legal load and capacity limits of the Equipment (including the recommended number of passengers (if applicable));
  • refuel the Equipment prior to its return from In the event the Equipment needs to be refuelled upon its return from Hire then the costs of refuelling shall be charged to the Client in addition to the costs of the Equipment hire;
  • notify MH immediately by telephone (and in writing within two

(2) days) of the full circumstances of any mechanical breakdown or accident. The Client is not absolved from the requirements to safeguard the Equipment by giving such notification;

  • satisfy itself at commencement that the Equipment is suitable for its purposes;
  • operate the Equipment safely, strictly in accordance with the law, only for its intended use, and in accordance with any manufacturer’s instruction whether supplied by MH or posted on the Equipment;
  • comply with all work health and safety laws relating to the Equipment and its operation;

 

  • on termination of the hire, deliver the Equipment complete with all parts and accessories, clean and in good order as delivered, fair wear and tear accepted, to MH (or MH’s designated employee);
  • keep the Equipment in their own possession and control and shall not assign the benefit of the hire contract nor be entitled to take a lien, or grant any encumbrance over the Equipment;
  • not alter or make any additions to the Equipment including but without limitation altering, make any additions to, defacing or erasing any identifying mark, plate or number on or in the Equipment or in any other manner interfere with the Equipment;
  • use the Equipment solely for the Client’s own works and shall not permit the Equipment of any part thereof to be used by any other party for any other
  1. Immediately on request by MH the Client will pay:
    • the new list price of any Equipment, accessories or consumables that are for whatever reason destroyed, written off or not returned to MH;
    • all costs incurred in cleaning the Equipment;
    • all costs of repairing any damage caused by the ordinary use of the Equipment up to an amount equal to ten percent (10%) of the new list price of the Equipment;
    • the cost of repairing any damage to the Equipment caused by wilful or negligent actions of the Client or the Client’s employees;
    • the cost of repairing any damage to the Equipment caused by vandalism, or (in MH’s reasonable opinion) in any way whatsoever other than by the ordinary use of the Equipment by the Client;

 

  • the cost of fuels and consumables provided by MH and used by the Client;
  • any costs incurred by MH in picking up and returning the Equipment to MH’s premises if the Client does not return the Equipment to MH’s premises or any pre-agreed pickup location when it was originally agreed that the Client would do
  • any lost hire fees MH would have otherwise been entitled to for the Equipment, under this, or any other hire agreement;
  • any insurance excess payable in relation to a claim made by either the Client or MH in relation to any damage caused by, or to, the hire Equipment whilst the same is hired by the Client and irrespective of whether charged by the Client’s insurers or MH’s.

 

 

 

Cancellation

 

 

 

  1. MH may cancel these terms and conditions or cancel delivery of Equipment at any time before the Equipment is delivered by giving written notice to the On giving such notice MH shall repay to the Client any sums paid in respect of the Hire Charge. MH shall not be liable for any loss or damage whatsoever arising from such cancellation.
  2. In the event that the Client cancels delivery of the Equipment the Client shall be liable for any and all loss incurred (whether direct or indirect) by MH as a direct result of the cancellation (including, but not limited to, any loss of profits).

 

Dispute Resolution

 

 

 

  1. If a dispute arises between the parties to this contract then either party shall send to the other party a notice of dispute in writing adequately identifying and providing details of the dispute. Within fourteen (14) days after service of a notice of dispute, the parties shall confer at least once, to attempt to resolve the dispute. At any such conference each party shall be represented by a person having authority to agree to a resolution of the In the event that the dispute cannot be so resolved either party may by further notice in writing delivered by hand or sent by certified mail to the other party refer such dispute to arbitration. Any arbitration shall be:
    • referred to a single arbitrator to be nominated by the President of the Institute of Arbitrators Australia; and
    • conducted in accordance with the Institute of Arbitrators Australia Rules for the Conduct of Commercial

 

 

 

Default and Consequences of Default

 

 

 

  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 one half percent (2.5%) per calendar month (and at MH’s sole discretion such interest shall compound monthly at such a rate) after as well as before any
  2. If the Client owes MH any money the Client shall indemnify MH from and against all costs and disbursements incurred by MH in recovering the debt (including but not limited to internal

 

administration fees, legal costs on a solicitor and own client basis, MH’s contract default fee, and bank dishonour fees).

  1. Further to any other rights or remedies MH may have under this contract, if the Client has made payment to MH by credit card, 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 MH under this clause 16 where it can be proven that such reversal is found to be illegal, fraudulent or in contravention to the Client’s obligations under this
  2. Without prejudice to any other remedies MH may have, if at any time the Client is in breach of any obligation (including those relating to payment) under these terms of hire MH may repossess the Equipment as per clause 9.2, or suspend or terminate the supply of Equipment to the Client and any of its other obligations under the terms and conditions. MH will not be liable to the Client for any loss or damage the Client suffers because MH has exercised its rights under this
  3. Without prejudice to MH’s other remedies at law MH shall be entitled to cancel all or any part of any order of the Client which remains unperformed and all amounts owing to MH shall, whether or not due for payment, become immediately payable in the event that:
    • any money payable to MH becomes overdue, or in MH’s opinion the Client will be unable to meet its payments as they fall due; or
    • 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

 

  • a receiver, manager, liquidator (provisional or otherwise) or similar person is appointed in respect of the Client or any asset of the

 

 

 

Privacy Act 1988

 

 

 

  1. The Client agrees for MH to obtain from a credit reporting body (CRB) a credit report containing personal credit information (e.g. name, address, O.B, occupation, previous credit applications, credit history) about the Client in relation to credit provided by MH.
  2. The Client agrees that MH may exchange information about the Client with those credit providers and with related body corporates for the following purposes:
    • to assess an application by the Client; and/or
    • to notify other credit providers of a default by the Client; and/or
    • 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; and/or
    • to assess the creditworthiness of the Client including the Client’s repayment history in the preceding two (2)
  3. The Client consents to MH being given a consumer credit report to collect overdue payment on commercial
  4. The Client agrees that personal credit information provided may be used and retained by MH for the following purposes (and for other agreed purposes or required by):
    • the provision of Equipment; and/or
    • analysing, verifying and/or checking the Client’s credit, payment and/or status in relation to the provision of Equipment; and/or

 

  • processing of any payment instructions, direct debit facilities and/or credit facilities requested by the Client; and/or
  • enabling the collection of amounts outstanding in relation to the
  1. MH may give information about the Client to a CRB for the following purposes:
    • to obtain a consumer credit report;
    • allow the CRB to create or maintain a credit information file about the Client including credit
  2. The information given to the CRB may include:
    • personal information as outlined in 17.1 above;
    • name of the credit provider and that SMH is a current credit provider to the Client;
    • whether the credit provider is a licensee;
    • type of consumer credit;
    • 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);
    • 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 MH has been paid or otherwise discharged and all details surrounding that discharge (e.g. dates of payments);
    • information that, in the opinion of MH, the Client has committed a serious credit infringement;
    • advice that the amount of the Client’s overdue payment is equal to or more than one hundred and fifty dollars ($150).

 

  1. The Client shall have the right to request (by e-mail) from MH:
    • a copy of the information about the Client retained by MH and the right to request that MH correct any incorrect information; and
    • that MH does not disclose any personal information about the Client for the purpose of direct
  2. MH will destroy personal information upon the Client’s request (by e-mail) or if it is no longer required unless it is required in order to fulfil the obligations of this agreement or is required to be maintained and/or stored in accordance with the
  3. The Client can make a privacy complaint by contacting SMH via e-mail. MH 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.

 

 

 

General

 

 

 

  1. The failure by MH to enforce any provision of these terms and conditions shall not be treated as a waiver of that provision, nor shall it affect MH’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
  2. These terms and conditions and any contract to which they apply shall be governed by the laws of New South Wales, the state in which

 

MH has its principal place of business, and are subject to the jurisdiction of the Sydney Courts in that state.

  1. Subject to clause 12 MH shall be under no liability whatsoever to the Client for any indirect and/or consequential loss and/or expense (including loss of profit) suffered by the Client arising out of a breach by MH of these terms and conditions (alternatively SMH’s liability shall be limited to damages which under no circumstances shall exceed the Hire Charge).
  2. The Client shall not be entitled to set off against, or deduct from the Hire Charge, any sums owed or claimed to be owed to the Client by MH nor to withhold payment of any invoice because part of that invoice is in
  3. MH may license or sub-contract all or any part of its rights and obligations without the Client’s
  4. The Client agrees that MH may amend these terms and conditions at any If MH makes a change to these terms and conditions, then that change will take effect from the date on which MH notifies the Client of such change. The Client will be taken to have accepted such changes if the Client makes a further request for MH to provide any Equipment to the Client.
  5. Neither party shall be liable for any default due to any act of God, war, terrorism, strike, lock-out, industrial action, fire, flood, storm or other event beyond the reasonable control of either
  6. The Client warrants that it has the power to enter into this agreement and has obtained all necessary authorisations to allow it to do so, it is not insolvent and that this agreement creates binding and valid legal obligations on