TERMS & CONDITIONS

 

Forklift Solutions Pty Ltd (Owner)

Full Terms and Conditions

Definition:

“The company” means Forklift Solutions Pty Ltd (ACN 127173424) and its employees, agents and subcontractors.

“Renter” means the renter described in Schedule

“The Customer” means the owner or Bailee of units offered to the company for service.

“Part(s)” means apart or accessory identified on our company documents supplied and fitted by the company to units.

“Services” means the scheduled or unscheduled or maintenance and repairs carried out by the Company either pursuant to an agreement or as a separate contract.

“Unit(s) means the equipment or machinery the subject of the services.

“Business Hours” means the hours between 8:00am and 4:30pm Monday to Friday.

‘Remote Locations” means anywhere exceeding 50 kilometers from our workshop.

 

The Owner rents to the Renter upon the following terms and conditions:

1. IT IS HEREBY AGREED:

a) The Renter has no right, property or interest in the Equipment other than as a Bailee.

b) The Renter shall take delivery of the Equipment at the Site Address described in the Schedule.

c) The Owner may sell or assign either absolutely or by way of security its rights under this Agreement and to the Equipment.

d) The Renter is responsible for any loss or damage to the Equipment (fair wear and tear expected).

e) The provision contained in Clause 2(a) (Punctual Payment of Rent) Clause 3(i) (Insurance of Equipment) and 3(a) (Maintenance and Repair of Equipment) and Clause 5 are essential terms of this Agreement and the breach of an essential term of this Agreement and thereby, the repudiation of this Agreement by the Renter.

f) By entering into a Contract, the Customer warrants that: (a) it does not rely on the skill or judgment of Forklift Solutions as to the suitability of any Goods or Services for a particular purpose, unless Forklift Solutions acknowledges in writing that the Goods or Services are fit for a particular purpose.

g) Any disputes arising from invoices must be raised with Forklift Solutions within 7 days of receipt.

h) Forklift Solutions reserves the right to list accounts which are 60+ days overdue as a payment default listing on Creditor Watch.

 

2. The Renter agrees to pay the Owner:

a) The total rent described on the Schedule by paying the Rental Payments promptly on the dates and at the place set out in the Schedule. The Renter agrees that it may not withhold any payment or any part of any payment, due to under the Agreement, or make a deduction from any such payment, for any reason whatsoever.

b) You must either return the machine with a full tank of fuel or pay Forklift Solutions to refuel for any consumption.

c) Interest at the rate set out on the Schedule on any Rental Payments which are not paid on the due date and on any other monies hereunder which remain unpaid for seven (&) days after the Owner's demand.

d) The Renter will be held liable and invoiced for all debt collection fees and charges incurred on the account.

e) Any expenses the Owner may incur in or arising out of making good any failure by the Renter to comply with any obligation hereunder or retaking or attempting to retake possession of or storing the Equipment.

f) The cost of replacing the Equipment if lost or damaged beyond repair, and or repairing any damage caused by impact, by accidental, deliberate or negligent misuse or abuse, by failure to comply with Clause 3(i) hereof, or by any cause other than fair wear and tear.

g) The Renter will be held liable for the cost of replacement tyres or puncture repair if damaged is caused by Renter (fair wear and tear excluded).

h) The excess use charge set out in the Schedule in each month when the Renter uses the Equipment in excess of the number of hours set out in the Schedule. It is agreed that if the hour meter is inoperative at any time the Equipment shall be deemed to have operated since the previous meter reading by the Owner's representative at a daily rate selected by the Owner based on previous experience under this Agreement.

i) Long term rental charges are to be paid on month in advance

j) Long term rental accounts are subject to CPI adjustments every 12 months due in July after a full 12 months of hire, calculated from March to March.

k) Any stamp duty or other duty, fees and imposts payable to any Government or semi-Government body in respect of or arising out of this Agreement or the Equipment.

i. If any supply (as defined in any law imposing a goods and services or similar tax (“GST”) under this agreement is a taxable supply (in the reasonable opinion of the supplier) and the supplier certifies that it has not priced the supply to include GST, then the recipient of the supply agrees to pay the supplier, in addition to any other consideration for the supply, and amount equal to the GST payable (as determined in good faith by the supplier) in connection with the supply.

ii. This clause 2(g) applies if the actual amount of GST paid or payable on a supply under this agreement is less than the amount paid under clause 2(g)(i). In that case, the supplier agrees to refund an amount equal to the difference between the amount paid under clause 2(g)(i) and the actual amount of GST on the supply is paid or can be clearly ascertained by the supplier.

 

3. The Renter agrees to:

a) Keep the Equipment in good order condition and repair (fair wear and tear excepted)

b) Check oil, water and battery levels on a daily basis

c) Return equipment to Forklift Solutions within business hours, and Forklift solutions accepts return of the ignition key; unless alternative arrangement are made with Forklift Solutions prior. If you return the equipment outside business hours, you remain responsible for the equipment until Forklift Solutions has inspected and accepted their return the next business day.

d) Upon completion of the hire period, the equipment must be returned in the same clean condition and good working order it was in when You received it (ordinary fair wear and tear is excluded). If you do not properly clean the equipment, You will be charged a cleaning fee.

e) If the equipment is returned in a damaged or unsatisfactory condition, customer will be charged for the duration of time in which it takes for the equipment to be restored to a condition satisfactory for re-hire.

f) Inspect the Equipment and to comply with the daily or other regular checks specified in the manufacturer's Operator Manual supplied with the Equipment.

g) Arrange regular servicing of the Equipment by the Owner in accordance with the Operator Manual.

h) Ensure that the Equipment is operated only by qualified, trained and licensed personnel and is not subjected to misuse or abuse.

i) Make the Equipment available during normal business hours or as otherwise contracted between the parties for repairs or for servicing at (or not later than 50 hours after) the proper hour meter readings.

j) Ensure that only parts approved by the Owner are used in the Equipment.

k) Notify the Owner immediately of any loss or damage to malfunctioning of the Equipment; promptly arrange repairs by the Owner; and if the condition of the Equipment renders it liable to be unsafe or is seen that it may cause further deterioration refrain from using the Equipment until it is repaired.

l) Comply with all relevant acts, regulations and by-laws relating to the Equipment and the use thereof.

m) Insure and keep the Equipment insured against fire, accident, and theft and such other risks as the Owner may require for an amount equal to the full insurable value of the Equipment with a reputable insurer approved by the Owner and the Renter for their respective rights and interests. The Renter must maintain with insurer's approved by the Owner public risk insurance in respect of the Equipment. The Renter must not enforce, conduct or settle or compromise claims under the policies of insurance required by this clause whether or not a policy also covers other property. The Owner is entitled to the proceeds of an insurance policy in connection with the Equipment and may apply them in its discretion either towards replacement or reinstatement of the Equipment or towards satisfaction of the Renter's obligations under this Agreement.

n) Keep the Equipment under the control of the Renter at the Site Address stipulated in the Schedule.

o) Permit the Owner to inspect the Equipment at any time during normal business hours.

p) Notify the Owner in writing prior to any change in the Renter's address.

q) Indemnify the Owner against any claims and demands whatsoever by the Renter or any other person or corporation in respect of any loss (including consequential loss) injury or damage arising out of the use or operation of the Equipment or out of any defect therein or in any manner relating thereto. The Renter agrees to further indemnity the Owner against all liability, loss, costs, changes or expenses arising because of the repudiation or any other termination of this Agreement, or because of an event of default, including in each case and without limitation, on account of funds borrowed, contracted for, or used to fund any amount payable by the Owner in connection with the Equipment or this Agreement, and reasonable legal fees and expenses.

r) Deliver up the Equipment in good order, repair and condition at the Renter's expense to the Owner at its address at the expiration or sooner determination of the Agreement.

s) If applicable, register the Equipment at the Renter's expense.

t) The hire period is charged from the date the forklift is collected/delivered to the renter, to the time and date that the Forklift is returned to Forklift Solutions, regardless of whether it is in use for only a partial period that you have the machine.

u) If you require Forklift Solutions to arrange the transportation of the machine, we must be notified by You as soon as possible and the equipment must be made available for collection immediately, which will be charged to You.

v) You must give Forklift Solutions a minimum of 24 hours’ notice for any cancellations, we reserve the right to charge a minimum day hire rate for any cancellations made inside the 24 hour period of the agreed rental commencement date.

 

4. Remote Locations:

a) Client is to notify Forklift Solutions as soon as possible of any break downs or maintenance issues.

b) The use of sub-contractors must be authorised by Forklift Solutions Pty Ltd and any works done without prior consent from Forklift Solutions Pty Ltd will not be paid for, and any damages caused by unapproved contractor/s will be charged to the renter.

c) If travel to the site is required by Forklift Solutions Pty Ltd – this is at the expense of the renter, however once on site if breakdown is due to mechanical, no labour charge while on site. If the damage is due to renter, labour charges will apply. Forklift Solutions Pty Ltd will come to site once a year for service – expenses to site are charged to client.

d) If forklifts are required to be swapped out, this charge will be passed to the renter (or renter can arrange own transport) unless other arrangements have been organised between the renter and Forklift Solutions.

e) All meals and accommodation to be supplied by the renter.

f) All labour costs above our standard rate and warranty rates will be on charges to renter.

 

g) You must give Forklift Solutions a minimum of 72 hours’ notice for any cancellations, we reserve the right to charge a minimum rate of 50% of total quoted amount for any cancellations made inside the 72 hour period of the confirmed commencement date.

h) Renter must disclose if any of the machines or attachments will be sent on a barge. If our machines or attachments do travel on a barge, the renter will be liable for all costs incurred relating to damages caused; including salt water corrosion.

 

5. The Renter will NOT without the prior consent of the Owner:

g) Alter any identifying number or mark on the Equipment.

h) Assign this Agreement or the Renter's rights hereunder.

i) Attempt or purport to sell, dispose of or encumber the Equipment in any way.

j) Change the Site Address, application or environment of the Equipment.

k) Do or permit or suffer to be done anything which might or could prejudice any insurance under 3(i) above.

l) Engage another person or organisation other than the owner or its authorised representatives to repair and maintain the equipment.

 

6. If The owner discovers the Renter has made a false statement to the Owner relating to this Agreement; or

a) The Renter fails to pay Rental Payments within (7) days of the due date as specified in the Schedule together with interest at the Rate specified in the Schedule; or

b) The Renter is in breach of any of the terms and conditions contained in this Agreement and has failed to rectify that breach within fourteen (14) days after notice by the Owner to do so; or

c) The Renter shall commit any act of bankruptcy or being a company shall go into liquidation or receivership or stops payment, is unable to pay its debts when they fall due, ceases to carry on its business or a material part of it or an order is made or a resolution is passed for an arrangement with creditors or the winding up of the Renter.

d) Execution or distress is levied against the Renter;

e) Any insurance proposal made by the Renter in respect of the Equipment is declined or any insurance policy in respect of the Equipment is cancelled; or

f) The Renter shall do or cause to be done or permit any act or thing likely to endanger the safe operation of the Equipment; or

g) The Renter is convicted of an indictable offence or is sentenced to imprisonment; or

h) The Ownership or control of the Renter changes prior to the end of the term of this Agreement.

i) Then the Owner may at its absolute discretion and without prejudice to any other rights or remedies take whatever action it considers appropriate to enforce the performance of this Agreement by the Renter or accept the repudiation of this Agreement whereupon in the case of repudiation the Renter shall be obliged to immediately:

i. Return the Equipment to the Owner to a place specified by the Owner,

ii. Pay to the Owner all moneys then payable to the Owner under this Agreement, and

iii. Pay to the Owner the balance of the unpaid Rental Payments still to fall due discounted to a present value from their original due date at the rate implicit to this Agreement.

Upon payment to the Owner of those moneys specified in this and the preceding sub-clause, the Renter shall be relieved of further liability to the Owner for Rent under this Agreement. The Renter hereby authorises the Owner to enter any premises upon which the Equipment may be located and waives and releases the Owner from any liability for any damage or loss occasioned thereby.

The Owner agrees to account to the Renter for any proceeds in excess of its loss, calculated at the date of repudiation. These proceeds shall be reduced by the costs incurred by the Owner in trying to reduce its loss plus any other amount the Renter owes under this Agreement.

 

7. It is expressly agreed as follows:

a) This Agreement shall not be binding on the Owner until it has been executed by the Owner notwithstanding any pre-payment of monies by the Renter.

b) No objection shall be made to the Owner entering into this Agreement as agent for any person (whether disclosed or otherwise) or to the fact that such person may have or may acquire the property and the Equipment.

c) This Agreement shall bind the Renter its successors and assigns and ensure (take effect) to the benefit of the Owner its successors and assigns.

d) Any notice required to be given to the Renter hereunder may be sent by facsimile or pre-paid post to the Renter at its last known place of business; and shall be deemed to have been received upon production of the transmission report or on the second business day following such posting.

e) If the Renter is required to do any matter or thing hereunder or by virtue of any notice served hereunder within a stipulated time shall be of the essence in respect of that stipulated time.

f) Any waiver by the Owner of any default or breach or repudiation of this Agreement shall not affect the rights of the Owner in respect of any further or continuing default breach or repudiation.

g) A certificate given by the Owner shall be prima facie evidence of the amount of monies due owing or recoverable from the Renter hereunder.

h) In the event that any provision or part thereof contained herein is rendered void, invalid or unenforceable then such provision or part thereof shall be severed from this Agreement without affecting the remaining provisions of this Agreement.

i)

i. Whether or not Division 2 of Part V of the Trade Practices Act 1974 or any law to a similar effect applies, the Owner's liability for anything in relation to the Equipment, its use, or its installation; including damage or economic loss to anyone, is limited as much as it can be. Whatever happens, the Owner's liability is no more that either to:

ii. Replace the Equipment with the same or equivalent equipment, or pay the cost of one of those things; or

iii. Repair the Equipment or pay for its repair; and

j) The Owner may exchange the Equipment with other equipment of a like or better type at any time during this Agreement and the replacement equipment shall be treated as the Equipment for the purposes of this Agreement.

k) The person signing this Agreement for the Renter is authorised to sign and deliver it on the Renter's behalf ; and

l) This Agreement contains all the terms, conditions, provisions and arrangements that have been agreed between the Owner and the Renter in respect of this Agreement.

 

8. If the Renter fails to return the Equipment at the expiration of this Agreement then the period of this Agreement shall be deemed extended from the day to day at the rental stipulated in the Schedule for this holding over period and upon the same terms and conditions as contained herein but so such extended period may be determined by the Owner demanding possession at any time or by the Renter delivering the Equipment to the Owner.

 

PPSA:

 9. The parties acknowledge that we may register any actual or impending security interest (in any matter we consider appropriate) in relation to any security interest contemplated or constituted by this Rental Agreement in the Equipment and the proceeds arising in respect of any dealing in the Equipment, you undertake to:

a) do anything that is required by Us (i) so that We acquire and maintain one or more perfected security interest under the PPSA in respect of the Equipment and its proceeds, (ii) to register a financing statement or financing charge statement and (iii) to ensure that Our security position, and rights and obligations, are not adversely affected by the PPSA.

b) not register a financing change statement in respect of a security interest contemplated or constituted by this Rental Agreement without Our prior written consent; and

c) not create or purport to create any security interest in the Equipment, nor 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 Our prior written consent.

10. You:

a) waive Your right under section 157 of the PPSA to receive a copy of the verification statement relating to a security interest created under the Rental agreement;

b) agree that to the extent permitted by the PPSA, the following provisions of the PPSA will not apply and are contracted out of: section 95 (to the extent that it requires the secured party to give notices to the grantor.); section   96; section 118 (to the extent that it allows a secured party to give notices to the grantor); section 121(4); section 125; section 130; section 132(3)(d); section 132(4); section 135; section 142 and section 143; and

c) agree that the following provisions of the PPSA will not apply and You will have no rights under them: section 127; section 129(2) and (3);section 130(1); section 132; section 134(2); section 135; section 136(3), (4) and (5) and section  137.

d) agree to not change your name, ABN/ACN or any other details required in respect of registration, or maintenance of registration, of each Security Interest on the Register without first notifying us in writing.

e) agree you must pay our costs of any discharge or necessary amendment of any Registration.

 

11. Unless otherwise agreed and to the extent permitted by the PPSA, You and We agree not to disclose information of the kind referred to in section 275(1) of the PPS Act to an interested person, or any other person requested by an interested person. You waive any right, You may have, or but for this clause may have had, under section 275(7)(c) of the PPSA to authorise the disclosure of the above information.

 

12. For the purposes of section 20(2) of the PPSA, the collateral is Equipment including any Equipment which is described in any Rental Schedule provided by Us to You from time to time. This Rental Agreements a security agreement for the purposes of the PPSA.

13. You agree to notify Us in writing of any change to Your details set out in the Credit Application, within 5 days from the date of such change.

14. Customer must not lease, hire, bail or give possession (‘sub hire’) of the equipment to anyone else unless Forklift Solutions Pty Ltd (in its absolute discretion) first consents in writing. Any such sub-hire must be in writing in a form acceptable to Forklift Solutions Pty Ltd and must be expressed to be subject to the rights of Forklift Solutions Pty Ltd under this agreement. Customer may not vary a sub-hire without prior written consent of Forklift Solutions Pty Ltd (which may be withheld in its absolute discretion).

 

15. Customer must ensure the Forklift Solutions Pty Ltd is provided at all times with up-to-date information about the sub-hire including the identity of the sub-hirer, the terms of and state of accounts and payment under the sub-hire and location and condition of the equipment.

 

16. Customer must take all steps including registration under the PPS Law as may be required to;

a) ensure that any security interest arising under or in respect of the sub-hire is enforceable, perfected and otherwise effective under the PPS Law;

b) enabling the Customer to gain (subject always to the rights of Forklift Solutions Pty Ltd) first priority (or any other priority agreed to by Forklift Solutions Pty Ltd in writing) for the security interest; and

c) enabling Forklift Solutions Pty Ltd and the Customer to exercise their respective rights in connection with the security interest.

d) ensure that any security interest registered on any machines sold to or traded in to Forklift Solutions is de-registered.

 

17. If the Renter requests a variation of the initial Term or of the Equipment rented hereunder the Owner may agree to such variation and forward and Acknowledgement of Variation to the Renter setting out details of the variation. Upon the signing of the Acknowledgement by the Renter the variation shall be binding on the Renter. The Rental Payments payable hereunder shall be varied according and in all other respects the terms and conditions of this Agreement shall remain unchanged. If the Owner does not receive the Acknowledgement duly signed by the Renter within fourteen days of sending its Acknowledgement to the Renter, the Owner may elect not to be bound by such variation.

 

18. Credit or Debit Cards:

a) Credit Card payments will incur a 2.5% surcharge.

b) You authorise Forklift Solutions to charge the Card, in respect of any charges due and payable and in respect of Damages due and payable or such other amount in addition as is specified in the Additional terms.

c) If Forklift Solutions charges your card for any Damages due and payable, it will promptly notify You of the amount so charged and provide details of the damages. If You dispute the Damages or the amount charged, You may contact Forklift Solutions who will promptly deal with any dispute and, if it reasonably considers that any amount should be refunded to You, will promptly credit that amount to Your Card.

d) You warrant that the card is Yours and You are responsible for all other amounts credited, charged or debited to that Card. Where the Card is not in Your name You warrant that You are authorised to permit and authorise Forklift Solutions to charge the card.

 

19. Sales, Service and Parts:

a) Any claim made against the company in respect of the supply of any service shall be limited in total to the supplying of the service again or the payment of the cost of having the service supplied again and in the case of the supply of Parts (the “Good”) any liability shall be limited to the replacement of the Good or the supply of equivalent Goods, the repairs of the Goods or the payment of the cost of having the Goods repaired.

b) The Company warrants to repair without further charge to the Customer any Failure which is proved to the satisfaction of the Company to have occurred entirely as a result of faulty workmanship by the Company in carrying out the Work. The warranty shall not apply to any repairs or replacement required as a result of (i) accident, (ii) misuse, (iii) lack of proper maintenance, (iv) service or repairs improperly performed or replacements improperly installed by any person other than the Company,(v) a replacement Part not approved by the Company or (vi) damage   from environmental conditions such as airborne fallout, salt, hail, rain, windstorm, lightening, flood etc. or any other event causing physical damage to the unit.

c) The carrying out of the Work does not make the Company liable for, and the Company expressly excludes liability for, any Consequential, indirect or incidental damages or for any service not expressly provided.

d) The Customer has requested the company to undertake service of Units and the fitting of parts, as required, (the “work”) And the Company has agreed to carry out the work at the cost of the Customer.

e) The benefits conferred on the Customer by these Terms and Conditions shall be in addition to all other rights and remedies in respect of the Goods or the Service which the Customer has under the Trade Practices Act and similar State and Territory laws.

f) For non-account holders, full payment is required prior to or upon pickup of all parts, service & repair jobs and sales.

g) Customer is encouraged to contact the service manager to arrange an appointment to inspect the service undertaken on customer’s machine prior to the machine leaving the workshop. Any issues with the service / work performed should be brought to the attention of Forklift Solutions at this time;

 

i. For field service, client should inspect machine and acknowledge works completed to satisfaction.

f) Where the Customer is a company the person signing this Work Order on behalf of the Customer warrants they have the authority to bind the Customer and agrees to be personally liable for all charges if for any reason the Customer neglects or pay the reasonable and proper charges of the Company.

g) Terms of payment are strictly 7 days from the date of Work Order, any outstanding accounts must be finalized prior to further works taking place.

h) Legal and beneficial title to the Goods is retained by Forklift Solutions and does not pass to the Customer, and the Customer holds the Goods as Forklift Solution’s fiduciary, agent and Bailee, until the Customer pays Forklift Solutions in full all moneys owing or payable by the Customer to Forklift Solutions on any account (including in respect of the purchase of the Goods) and any payments have been cleared, at which time title to the Goods will pass to the Customer.

i) Sale Tax is charged unless an exemption number is quoted on this Work Order. Claims for credit of Sales Tax deduction will be subject to ten percent (10%) administration charge.

j) Any purchase order received by Forklift Solutions will be treated for all purposes to be an offer to purchase, and subject to written acceptance by Forklift Solutions;

k) Purchase of any specialised equipment may require a deposit at the time of order placement comprising 20% of the total equipment cost, if an order is cancelled 2 working days or longer after placement, a 10% cancellation fee will be applicable. In the case of specialised equipment, order cancellation 2 days or longer after order placement will incur a cost equal to either 10% of the order value or substantiated costs incurred by Forklift Solutions up to the value of the 20% deposit.

l) Where applicable Goods & Services Tax and any other Government Tax will be charged and is payable in addition to the price. Where any exemption is available to the buyer under applicable legislation, upon presentation to the Company of the appropriate documentation and any necessary declaration, the Company if satisfied will provide the goods excluding tax.

m) It is acknowledged and agreed that title to the Goods shall not pass to the Customer until the Company has received payment in full all Goods and the Service itemised on the Work order.

n) The company is not liable for any damage or loss, including Consequential Loss, to the purchaser resulting from any delay in delivery of Goods or Services.

o) Upon issuing of an invoice for the purchase of the goods from Forklift Solutions, you agree to pay the deposit indicated on the invoice; the deposit is non-refundable.

p) Any used machines are sold ‘as is’ without warranty unless otherwise agreed by Forklift Solutions.

q) All trade-in machines/equipment and any items sold to Forklift Solutions must be owned free and clear by the client/supplier, with no encumbrances of any sort. The client/supplier is required to reimburse Forklift Solutions for any expenses in regards to the machine/equipment or items sold; if it is found to be not owned by the client/supplier free and clear.

r) You must give Forklift Solutions a minimum of 24 hours’ notice for any cancellations, we reserve the right to charge a minimum rate of 50% of total quoted amount for any cancellations made inside the 24 hour period of the confirmed commencement date; for remote locations we require a minimum of 72 hours’ notice.

 

20. This Agreement shall be construed in accordance with the laws of Northern Territory and any dispute shall be determined by the Courts of the Territory by whose jurisdiction and decision the parties agree to be bound.

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