Terms and Conditions of Hire

1. Definitions
   • “Contract” means the terms and conditions contained herein, together with any Quotation, Hire form, invoice or other document or amendments expressed to be supplemental to this Contract.
   • “B & S Hire” means McFlynn Pty Ltd ATF P & L McCarthy Family Trust T/A B & S Hire, its successors and assigns or any person acting on behalf of and with the authority of McFlynn Pty Ltd ATF P & L McCarthy Family Trust T/A B & S Hire.
   • “Customer” means the person/s, entities or any person acting on behalf of and with the authority of the Customer requesting B & S Hire to provide the services as specified in any proposal, quotation, order, invoice or other documentation, and:
     • if there is more than one Customer, is a reference to each Customer jointly and severally; and
     • if the Customer is a partnership, it shall bind each partner jointly and severally; and
     • if the Customer is a part of a Trust, shall be bound in their capacity as a trustee; and
     • includes the Customer’s executors, administrators, successors and permitted assigns.
   • “Equipment” means all Equipment (including any accessories) supplied on hire by B & S Hire to the Customer (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 B & S Hire to the Customer.
   • “Minimum Hire Period” means the Minimum Hire Period as described on the invoices, quotation, authority to hire, or any other forms as provided by B & S Hire to the Customer.
   • “Confidential Information” means information of a confidential nature whether oral, written or in electronic form including, but not limited to, this Contract, either party’s intellectual property, operational information, know-how, trade secrets, financial and commercial affairs, contracts, client information (including but not limited to, “Personal Information” such as: name, address, D.O.B, occupation, driver’s license details, electronic contact (email, Facebook or Twitter details), medical insurance details or next of kin and other contact information (where applicable), previous credit applications, credit history) and pricing details.
   • “Cookies” means small files which are stored on a user’s computer. They are designed to hold a modest amount of data (including Personal Information) specific to a particular client and website, and can be accessed either by the web server or the client’s computer. If the Customer does not wish to allow Cookies to operate in the background when ordering from the website, then the Customer shall have the right to enable / disable the Cookies first by selecting the option to enable / disable provided on the website, prior to ordering Equipment via the website.
   • “Price” means the cost of the hire of the Equipment (plus any GST where applicable) as agreed between B & S Hire and the Customer subject to clause 5 of this Contract.
   • “GST” means Goods and Services Tax as defined within the “A New Tax System (Goods and Services Tax) Act 1999” (Cth).

 

2. Acceptance
   • The Customer is taken to have exclusively accepted and is immediately bound, jointly and severally, by these terms and conditions if the Customer places an order for, or accepts Delivery of, the Equipment.
   • In the event of any inconsistency between the terms and conditions of this Contract and any other prior document or schedule that the parties have entered into, the terms of this Contract shall prevail.
   • Any amendment to the terms and conditions contained in this Contract may only be amended in writing by the consent of both parties.
   • The Customer acknowledges that the hire of Equipment on credit shall not take effect until the Customer has completed a credit application with B & S Hire and it has been approved with a credit limit established for the account.
   • In the event that the hire of Equipment request exceeds the Customers credit limit and/or the account exceeds the payment terms, B & S Hire reserves the right to refuse Delivery.
   • Electronic signatures shall be deemed to be accepted by either party providing that the parties have complied with Section 9 of the Electronic Transactions (Victoria) Act 2000 or any other applicable provisions of that Act or any Regulations referred to in that Act.

 

3. Errors and Omissions
   • The Customer acknowledges and accepts that B & S Hire shall, without prejudice, accept no liability in respect of any alleged or actual error(s) and/or omission(s):
     • resulting from an inadvertent mistake made by B & S Hire in the formation and/or administration of this Contract; and/or
     • contained in/omitted from any literature (hard copy and/or electronic) supplied by B & S Hire in respect of the Equipment hire and/or/services.
   • In the event such an error and/or omission occurs in accordance with clause 1, and is not attributable to the negligence and/or wilful misconduct of B & S Hire; the Customer shall not be entitled to treat this Contract as repudiated nor render it invalid.

 

4. Change in Control
   • The Customer shall give B & S Hire not less than fourteen (14) days prior written notice of any proposed change of ownership of the Customer and/or any other change in the Customer’s details (including but not limited to, changes in the Customer’s name, address, contact phone or fax number/s, change of trustees or business practice). The Customer shall be liable for any loss incurred by B & S Hire as a result of the Customer’s failure to comply with this clause.

 

5. Price and Payment
   • At B & S Hire’s sole discretion the Price shall be either;
     • as indicated on invoices provided by B & S Hire to the Customer in respect of Equipment supplied on hire; or
     • B & S Hire’s current Price, at the date of Delivery of the Equipment, according to B & S Hire’s current price list; or
     • B & S Hire’s quoted Price (subject to clause 2) which shall be binding upon B & S Hire provided that the Customer shall accept in writing B & S Hire’s quotation within thirty (30) days.
   • B & S Hire reserves the right to change the Price:
     • if a variation to the Equipment which are to be supplied is requested; or
     • if a variation to the Services originally scheduled (including any applicable plans or specifications) is requested; or
     • if during the course of the Services, the Equipment are not or cease to be available from B & S Hire’s third party suppliers, then B & S Hire reserves the right to provide alternative Equipment; or
     • in the event of increases to B & S Hire in the cost of labour or materials which are beyond B & S Hire’s control.
   • Variations will be charged for on the basis of B & S Hire’s quotation, and will be detailed in writing, and shown as variations on B & S Hire’s invoice. The Customer shall be required to respond to any variation submitted by B & S Hire within ten (10) working days. Failure to do so will entitle B & S Hire to add the cost of the variation to the Price. Payment for all variations must be made in full at the time of their completion.
   • At B & S Hire’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 Customer by within thirty (30) days of the return of the Equipment, provided that the Customer has complied with their obligations hereunder. The deposit may be used to offset any applicable charges payable by the Customer under clause 2, and any outstanding balance thereof shall be due as per clause 5.5.
   • Time for payment for the Equipment being of the essence, the Price will be payable by the Customer on the date/s determined by B & S Hire, which may be:
     • for certain approved Customer, due fourteen (14) days following the date specified on any invoice or other form given by B & S Hire; or
     • the date specified on any invoice or other form as being the date for payment; or
     • failing any notice to the contrary, the date which is seven (7) days following the date of any invoice given to the Customer by B & S Hire.
   • Payment may be made by cash, cheque, bank cheque, electronic/on-line banking, credit card (a surcharge per transaction may apply) or by any other method as agreed to between the Customer and B & S Hire.
   • B & S Hire may in its discretion allocate any payment received from the Customer towards any invoice that B & S Hire determines and may do so at the time of receipt or at any time afterwards. On any default by the Customer B & S Hire may re-allocate any payments previously received and allocated. In the absence of any payment allocation by B & S Hire, payment will be deemed to be allocated in such manner as preserves the maximum value of B & S Hire’s Purchase Money Security Interest (as defined in the PPSA) in the Equipment.
   • The Customer shall not be entitled to set off against, or deduct from the Price, any sums owed or claimed to be owed to the Customer by B & S Hire nor to withhold payment of any invoice because part of that invoice is in dispute.
   • Unless otherwise stated the Price does not include GST. In addition to the Price the Customer must pay to B & S Hire an amount equal to any GST B & S Hire must pay for any supply by B & S Hire under this or any other agreement for the hire of the Equipment. The Customer must pay GST, without deduction or set off of any other amounts, at the same time and on the same basis as the Customer pays the Price. In addition, the Customer must pay any other taxes and duties that may be applicable in addition to the Price except where they are expressly included in the Price.
   • Receipt by B & S Hire 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.

 

6. Hire Period
   • 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 Customer’s possession.
   • Where the Equipment does not have a timing device installed hire charges shall commence from the time the Equipment departs from B & S Hire’s premises and will continue until the return of the Equipment to B & S Hire’s premises, and/or until the expiry of the Minimum Hire Period, whichever last occurs.
   • The date upon which the Customer advises of termination shall in all cases be treated as a full day’s hire.
   • No allowance whatsoever can be made for time during which the Equipment is not in use for any reason, unless B & S Hire confirms special prior arrangements in writing. In the event of Equipment breakdown provided the Customer notifies B & S Hire 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 Customer.
   • Off-hire receipts will only be issued when the Equipment has been either collected by B & S Hire, or returned to B & S Hire’s premises.

 

7. Delivery
   • Delivery (“Delivery”) of the Equipment is taken to occur at the time that:
     • the Customer or the Customer’s nominated carrier takes possession of the Equipment at B & S Hire’s premises; or
     • B & S Hire (or B & S Hire’s nominated carrier) delivers the Equipment to the Customer’s nominated address even if the Customer is not present at the address.
   • At B & S Hire’s sole discretion the cost of Delivery is either included in the Price or is in addition to the Price.
   • Any time specified by B & S Hire for Delivery of the Equipment is an estimate only and B & S Hire will not be liable for any loss or damage incurred by the Customer as a result of Delivery being late. However both parties agree that they shall make every endeavour to enable the Equipment to be supplied at the time and place as was arranged between both parties. In the event that B & S Hire is unable to supply the Equipment as agreed solely due to any action or inaction of the Customer, then B & S Hire shall be entitled to charge a reasonable fee for re-supplying the Equipment at a later time and date, and/or for storage of the Equipment.
   • The Customer shall be responsible for free access by B & S Hire to the site on which the Equipment is located. If there are any delays due to free access not being available then the Customer shall be responsible and shall reimburse B & S Hire for all lost hire fees associated with the Equipment being unavailable. The Customer shall also be responsible for all other expenses and costs incurred by B & S Hire due to delays in providing access to the Equipment.

 

8. Risk
   • B & S Hire retains property in the Equipment nonetheless all risk for the Equipment passes to the Customer on Delivery.
   • The Customer accepts full responsibility for the safekeeping of the Equipment and indemnifies B & S Hire 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 Customer.
   • The Customer will insure, or self-insure, B & S Hire’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 Customer will not use the Equipment nor permit it to be used in such a manner as would permit an insurer to decline any claim.
   • The Customer accepts full responsibility for and shall keep B & S Hire 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 Customer or any other persons.

 

9. Title
   • The Equipment is and will at all times remain the absolute property of B & S Hire, and the Customer must return the Equipment to B & S Hire upon request to do so.
   • If the Customer fails to return the Equipment to B & S Hire as is required under this Contract or when requested to do so, then B & S Hire or B & S Hire’s agent may (as the invitee of the Customer) enter upon and into any land and premises owned, occupied or used by the Customer, 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 B & S Hire as a result of B & S Hire so repossessing the Equipment shall be charged to the Customer.
   • The Customer is not authorised to pledge B & S Hire’s credit for repairs to the Equipment or to create a lien over the Equipment in respect of any repairs.

 

10. Personal Property Securities Act 2009 (“PPSA”)
    • In this clause financing statement, financing change statement, security agreement, and security interest has the meaning given to it by the PPS
    • Upon assenting to these terms and conditions in writing the Customer 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 B & S Hire to the Customer.
    • The Customer undertakes to:
      • 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 B & S Hire 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 3(a)(i) or 10.3(a)(ii);
      • indemnify, and upon demand reimburse, B & S Hire 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;
      • not register a financing change statement in respect of a security interest without the prior written consent of B & S Hire;
      • 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 B & S Hire.
    • B & S Hire and the Customer agree that sections 96, 115 and 125 of the PPSA do not apply to the security agreement created by these terms and conditions.
    • The Customer waives their rights to receive notices under sections 95, 118, 121(4), 130, 132(3)(d) and 132(4) of the PPSA.
    • The Customer waives their rights as a grantor and/or a debtor under sections 142 and 143 of the PPSA.
    • Unless otherwise agreed to in writing by B & S Hire, the Customer waives their right to receive a verification statement in accordance with section 157 of the PPSA.
    • The Customer must unconditionally ratify any actions taken by B & S Hire under clauses 3 to 10.5.
    • Subject to any express provisions to the contrary (including those contained in this clause 10), nothing in these terms and conditions is intended to have the effect of contracting out of any of the provisions the PPSA.

 

11. Security and Charge
    • In consideration of B & S Hire agreeing to supply Equipment, the Customer 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 Customer either now or in the future, to secure the performance by the Customer of its obligations under these terms and conditions (including, but not limited to, the payment of any money).
    • The Customer indemnifies B & S Hire from and against all B & S Hire’s costs and disbursements including legal costs on a solicitor and own client basis incurred in exercising B & S Hire’s rights under this clause.
    • The Customer irrevocably appoints B & S Hire and each director of B & S Hire as the Customer’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 Customer’s behalf.

 

12. Defects, Warranties and Returns, Competition and Consumer Act 2010 (CCA)
    • The Customer must inspect the Equipment on Delivery and must within twenty-four (24) hours of Delivery notify B & S Hire in writing of any evident defect/damage, shortage in quantity, or failure to comply with the description or quote. The Customer must notify any other alleged defect in the Equipment as soon as reasonably possible after any such defect becomes evident. Upon such notification the Customer must allow B & S Hire to inspect the Equipment.
    • 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).
    • B & S Hire acknowledges that nothing in these terms and conditions purports to modify or exclude the Non-Excluded Guarantees.
    • Except as expressly set out in these terms and conditions or in respect of the Non-Excluded Guarantees, B & S Hire makes no warranties or other representations under these terms and conditions including but not limited to the quality or suitability of the Equipment. B & S Hire’s liability in respect of these warranties is limited to the fullest extent permitted by law.
    • If the Customer is a consumer within the meaning of the CCA, B & S Hire’s liability is limited to the extent permitted by section 64A of Schedule 2.
    • If B & S Hire 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 B & S Hire may refund any money the Customer 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 Customer which were not defective.
    • If the Customer is not a consumer within the meaning of the CCA, B & S Hire’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 Customer by B & S Hire at B & S Hire’s sole discretion;
      • limited to any warranty to which B & S Hire is entitled, if B & S Hire did not manufacture the Equipment;
      • otherwise negated absolutely.
    • Notwithstanding clauses 1 to 12.7 but subject to the CCA, B & S Hire shall not be liable for any defect or damage which may be caused or partly caused by, or arise as a result of:
      • the Customer failing to properly maintain or store any Equipment;
      • the Customer interfering with the Equipment in any way without B & S Hire’s written approval to do so;
      • the Customer using the Equipment for any purpose other than that for which it was designed;
      • the Customer continuing the use of the Equipment after any defect became apparent or should have become apparent to a reasonably prudent operator or user;
      • the Customer failing to follow any instructions or guidelines provided by B & S Hire;
      • fair wear and tear, any accident, or act of God.

 

13. Customer’s Responsibilities
    • The Customer 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 and shall provide evidence of the same to B & S Hire upon request;
      • maintain the Equipment as is required by B & S Hire (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 B & S Hire 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 B & S Hire;
      • 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 Hire. In the event the Equipment needs to be refuelled upon its return from Hire then the costs of refuelling shall be charged to the Customer in addition to the costs of the Equipment hire;
      • notify B & S Hire immediately by telephone of the full circumstances of any mechanical breakdown or accident. The Customer 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 B & S Hire or posted on the Equipment;
      • comply with all occupational 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 B & S Hire (or B & S Hire’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 Customer’s own works and shall not permit the Equipment of any part thereof to be used by any other party for any other work;
      • on request from B & S Hire, to provide a copy of a driver’s licence and complete B & S Hire’s Debit form or Credit Card form.
    • Immediately on request by B & S Hire the Customer will pay:
      • the new list price of any Equipment, accessories or consumables that are for whatever reason destroyed, written off or not returned to B & S Hire;
      • 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 Customer or the Customer’s employees;
      • the cost of repairing any damage to the Equipment caused by vandalism, or (in B & S Hire’s reasonable opinion) in any way whatsoever other than by the ordinary use of the Equipment by the Customer;
      • the cost of fuels and consumables provided by B & S Hire and used by the Customer;
      • any costs incurred by B & S Hire in picking up and returning the Equipment to B & S Hire’s premises if the Customer does not return the Equipment to the Owners premises or any pre-agreed pickup location when it was originally agreed that the Customer would do so.
      • any lost hire fees B & S Hire would have otherwise been entitled to for the Equipment, under this, or any other hire Contract;
      • any insurance excess payable in relation to a claim made by either the Customer or B & S Hire in relation to any damage caused by, or to, the hire Equipment whilst the same is hired by the Customer and irrespective of whether charged by the Customer’s insurers or B & S Hire’s.

 

14. Cancellation
    • Without prejudice to any other remedies B & S Hire may have, if at any time the Customer is in breach of any obligation (including those relating to payment) under these terms of hire B & S Hire may repossess the Equipment as per clause 2, or suspend or terminate the supply of Equipment to the Customer and any of its other obligations under the terms and conditions. B & S Hire will not be liable to the Customer for any loss or damage the Customer suffers because B & S Hire has exercised its rights under this clause.
    • B & S Hire 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 Customer. On giving such notice B & S Hire shall repay to the Customer any sums paid in respect of the Price. B & S Hire shall not be liable for any loss or damage whatsoever arising from such cancellation.
    • In the event that the Customer cancels Delivery of the Equipment the Customer shall be liable for any and all loss incurred (whether direct or indirect) by B & S Hire as a direct result of the cancellation (including, but not limited to, any loss of profits).

 

15. Default and Consequences of Default
    • 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 B & S Hire’s sole discretion such interest shall compound monthly at such a rate) after as well as before any judgment.
    • If the Customer owes B & S Hire any money the Customer shall indemnify B & S Hire from and against all costs and disbursements incurred by B & S Hire in recovering the debt (including but not limited to internal administration fees, legal costs on a solicitor and own client basis, B & S Hire’s contract default fee, and bank dishonour fees).
    • Further to any other rights or remedies B & S Hire may have under this Contract, if the Customer has made payment to B & S Hire, and the transaction is subsequently reversed, the Customer shall be liable for the amount of the reversed transaction, in addition to any further costs incurred by B & S Hire under this clause 15 where it can be proven that such reversal is found to be illegal, fraudulent or in contravention to the Customer’s obligations under this Contract.
    • Without prejudice to B & S Hire’s other remedies at law B & S Hire shall be entitled to cancel all or any part of any order of the Customer which remains unperformed and all amounts owing to B & S Hire shall, whether or not due for payment, become immediately payable in the event that:
      • any money payable to B & S Hire becomes overdue, or in B & S Hire’s opinion the Customer will be unable to meet its payments as they fall due; or
      • the Customer has exceeded any applicable credit limit provided by B & S Hire;
      • the Customer 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 Customer or any asset of the Customer.

 

16. Privacy Policy
    • All emails, documents, images or other recorded information held or used by B & S Hire is Personal Information, as defined and referred to in clause 3, and therefore considered Confidential Information. B & S Hire acknowledges its obligation in relation to the handling, use, disclosure and processing of Personal Information pursuant to the Privacy Act 1988 (“the Act”) including the Part IIIC of the Act being Privacy Amendment (Notifiable Data Breaches) Act 2017 (NDB) and any statutory requirements, where relevant in a European Economic Area (“EEA”), under the EU Data Privacy Laws (including the General Data Protection Regulation “GDPR”) (collectively, “EU Data Privacy Laws”). B & S Hire acknowledges that in the event it becomes aware of any data breaches and/or disclosure of the Customers Personal Information, held by B & S Hire that may result in serious harm to the Customer, B & S Hire will notify the Customer in accordance with the Act and/or the GDPR. Any release of such Personal Information must be in accordance with the Act and the GDPR (where relevant) and must be approved by the Customer by written consent, unless subject to an operation of law.
    • Notwithstanding clause 1, privacy limitations will extend to B & S Hire in respect of Cookies where transactions for purchases/orders transpire directly from B & S Hire’s website. B & S Hire agrees to display reference to such Cookies and/or similar tracking technologies, such as pixels and web beacons (if applicable), such technology allows the collection of Personal Information such as the Customer’s:
      • IP address, browser, email client type and other similar details;
      • tracking website usage and traffic; and
      • reports are available to B & S Hire when B & S Hire sends an email to the Customer, so B & S Hire may collect and review that information (“collectively Personal Information”)

In order to enable / disable the collection of Personal Information by way of Cookies, the Customer shall have the right to enable / disable the Cookies first by selecting the option to enable / disable, provided on the website prior to proceeding with a purchase/order via B & S Hire’s website.

• The Customer agrees for B & S Hire to obtain from a credit reporting body (CRB) a credit report containing personal credit information (e.g. name, address, D.O.B, occupation, driver’s license details, electronic contact (email, Facebook or Twitter details), medical insurance details or next of kin and other contact information (where applicable), previous credit applications, credit history) about the Customer in relation to credit provided by B & S Hire.
• The Customer agrees that B & S Hire may exchange information about the Customer with those credit providers and with related body corporates for the following purposes:
  • to assess an application by the Customer; and/or
  • to notify other credit providers of a default by the Customer; and/or
  • to exchange information with other credit providers as to the status of this credit account, where the Customer is in default with other credit providers; and/or
  • to assess the creditworthiness of the Customer including the Customer’s repayment history in the preceding two (2) years.
• The Customer consents to B & S Hire being given a consumer credit report to collect overdue payment on commercial credit.
• The Customer agrees that personal credit information provided may be used and retained by B & S Hire for the following purposes (and for other agreed purposes or required by):
  • the provision of Equipment; and/or
  • analysing, verifying and/or checking the Customer’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 Customer; and/or
  • enabling the collection of amounts outstanding in relation to the Equipment.
• B & S Hire may give information about the Customer 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 Customer including credit history.
• The information given to the CRB may include:
  • Personal Information as outlined in 3 above;
  • name of the credit provider and that B & S Hire is a current credit provider to the Customer;
  • whether the credit provider is a licensee;
  • type of consumer credit;
  • details concerning the Customer’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 Customer no longer has any overdue accounts and B & S Hire has been paid or otherwise discharged and all details surrounding that discharge (e.g. dates of payments);
  • information that, in the opinion of B & S Hire, the Customer has committed a serious credit infringement;
  • advice that the amount of the Customer’s overdue payment is equal to or more than one hundred and fifty dollars ($150).
• The Customer shall have the right to request (by e-mail) from B & S Hire:
  • a copy of the Personal Information about the Customer retained by B & S Hire and the right to request that B & S Hire correct any incorrect Personal Information; and
  • that B & S Hire does not disclose any Personal Information about the Customer for the purpose of direct marketing.
• B & S Hire will destroy Personal Information upon the Customer’s request (by e-mail) or if it is no longer required unless it is required in order to fulfil the obligations of this Contract or is required to be maintained and/or stored in accordance with the law.
• The Customer can make a privacy complaint by contacting B & S Hire via e-mail. B & S Hire 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 Customer is not satisfied with the resolution provided, the Customer can make a complaint to the Information Commissioner at www.oaic.gov.au.

 

17. Building and Construction Industry Security of Payment Act 2002
    • At B & S Hire’s sole discretion, if there are any disputes or claims for unpaid Equipment hire then the provisions of the Building and Construction Industry Security of Payment Act 2002 may apply.
    • Nothing in this agreement is intended to have the effect of contracting out of any applicable provisions of the Building and Construction Industry Security of Payment Act 2002 of Victoria, except to the extent permitted by the Act where applicable.

 

18. Service of Notices
    • Any written notice given under this Contract shall be deemed to have been given and received:
      • by handing the notice to the other party, in person;
      • by leaving it at the address of the other party as stated in this Contract;
      • by sending it by registered post to the address of the other party as stated in this Contract;
      • 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;
      • if sent by email to the other party’s last known email address.
    • 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.

 

19. Trusts
    • If the Customer at any time upon or subsequent to entering in to the Contract is acting in the capacity of trustee of any Trust (“Trust”) then whether or not B & S Hire may have notice of the Trust, the Customer covenants with B & S Hire as follows:
      • the Contract extends to all rights of indemnity which the Customer now or subsequently may have against the Trust and the trust fund;
      • the Customer has full and complete power and authority under the Trust to enter into the Contract and the provisions of the Trust do not purport to exclude or take away the right of indemnity of the Customer against the Trust or the trust fund. The Customer will not release the right of indemnity or commit any breach of trust or be a party to any other action which might prejudice that right of indemnity;
      • the Customer will not without consent in writing of B & S Hire (B & S Hire will not unreasonably withhold consent), cause, permit, or suffer to happen any of the following events;
        • the removal, replacement or retirement of the Customer as trustee of the Trust;
        • any alteration to or variation of the terms of the Trust;
        • any advancement or distribution of capital of the Trust; or
        • any resettlement of the trust property.

 

 

20. General
    • 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.
    • These terms and conditions and any contract to which they apply shall be governed by the laws of Victoria, the state in which B & S Hire has its principal place of business, and are subject to the jurisdiction of the courts in that state.
    • Subject to clause 12, B & S Hire shall be under no liability whatsoever to the Customer for any indirect and/or consequential loss and/or expense (including loss of profit) suffered by the Customer arising out of a breach by B & S Hire of these terms and conditions (alternatively B & S Hire’s liability shall be limited to damages which under no circumstances shall exceed the Price).
    • B & S Hire may licence and/or assign all or any part of its rights and/or obligations under this Contract without the Customer’s consent.
    • The Customer cannot assign or licence without the written approval of B & S Hire.
    • B & S Hire may elect to subcontract out any part of the provision services but shall not be relieved from any liability or obligation under this Contract by so doing. Furthermore, the Customer agrees and understands that they have no authority to give any instruction to any of B & S Hire’s sub-contractors without the authority of B & S Hire.
    • The Customer agrees that B & S Hire may amend their general terms and conditions for subsequent future contracts with the Customer by disclosing such to the Customer in writing. These changes shall be deemed to take effect from the date on which the Customer accepts such changes, or otherwise at such time as the Customer makes a further request for B & S Hire to provide Equipment on hire to the Customer.
    • 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 party.
    • 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 them.