DRY HIRE AGREEMENT

DRY HIRE AGREEMENT 

 It is agreed, the terms set out in the below & attached are binding on the Hirer and form part of this agreement.

GUARANTEE AND INDEMNITY

 The following terms have the meanings throughout this Guarantee and Indemnity:

 

(a)"Guarantors" means the party named below in the signing clause

(b)"Hirer" means the party named in the Hire Agreement as the “Hirer”.

(c)“Owner" means the party named in the Hire Agreement as the “Owner”.                                                                                                                

(d)"Hire Agreement" means the Hire Agreement to which this Guarantee and Indemnity is annexed.

 

In consideration of the Owner entering into the Hire Agreement with the Hirer at the request of the Guarantors (which request is attested to by the execution of the Guarantee and Indemnity), the Guarantors hereby jointly and severally covenant and agree with the Owner as follows:-

 

(a) The Guarantors do hereby guarantee the due and punctual payment of all monies payable under the Hire Agreement by the Hirer to the Owner, and further, guarantee the due and punctual performance by the Hirer of the obligations of the Hirer under the Hire Agreement;
 
(b) The Guarantors will not be released from their obligations under this Guarantee and Indemnity by the granting of any time or other indulgence by the Owner to the Hirer, or by any other thing whatsoever which under the law relating to sureties would but for this provision have the effect of releasing them or any of them from this Guarantee and Indemnity;
 
(c) In order to give better effect to this Guarantee and Indemnity, the Guarantors declare that the Owner shall be at liberty to act as though the Guarantors and each of them were principal debtors and principal obligors and the Guarantors and each of them hereby waive all and any of their rights as sureties which might at any time be inconsistent with the provision;
 
(d) The Guarantors hereby indemnify and will keep the Owner indemnified from any cost, expense or liability incurred by the Owner whether directly or indirectly arising as a consequence of the Hirer’s failure to strictly observe and perform the terms and conditions of the Hire Agreement;
 
(e) This guarantee shall be a continuing Guarantee and Indemnity and shall remain of full force and effect until all monies payable under the Hire Agreement and all obligations to be performed or monies to be paid by the Hirer, have been paid or performed as the case may be, in full;
 
(f) This Guarantee and Indemnity is given and shall be for the benefit of the Owner its successors and assigns;
 
(g) This Guarantee and Indemnity is governed by the Laws of Queensland and the parties hereby submit to the jurisdiction of the Courts of Queensland and the Courts entitled to hear appeals from those Courts.

 

GENERAL TERMS:

The following terms apply:

“Attachments” means the attachments listed in Item 3 of the Schedule

“Equipment” means the equipment listed in Item 3 of the Schedule

“Hirer” means the person described in Item 1 of the Schedule

“Owner” means Markay Co. Pty Ltd as trustee for the Fryson Trust and its successors

“PPSA” means the Personal Property Securities Act (Cth)

“PPSR” means the Personal Property Securities Register

“Site Address” means the site address listed in Item 2 of the Schedule

 

11. Rental Charges & Hire Period

The period of hire and the applicable rates are specified in the Item 2 of the Schedule and will commence from the Commencement Date, or if no date is specified, from when the Equipment is loaded for transport.

Applicable rates are inclusive of GST.

Interest will be charged on overdue accounts until the date payment is received at the rate of 11% per annum calculated on a daily basis. The Hirer is responsible, in the event any monies are outstanding after demand has been made, to pay the Owner’s costs of recovery and, where a solicitor is engaged, on a full indemnity basis.

The hire period continues until (a) the Equipment is returned to the Owner at the original point of hire or as otherwise agreed by the Owner; or (b) the expiry date set out in Item 2 of the Schedule; or (c) any Equipment damage (other than damage caused or contributed to by the Owner) has been rectified, whichever is the later, and the Hirer will be liable to pay an applicable rate at $250.00 for each additional day or part thereof beyond the initial hire period until the hire period ends.

The Owner is entitled to terminate this agreement at any time on reasonable notice to the Hirer. If the Hirer fails or refuses to comply with a term or condition of the Hire Agreement or is in default under this Hire Agreement then the Owner has the right to terminate the Hire Agreement immediately and require the Hirer, at its cost, to deliver the Equipment and Attachments to the Owner at the original point of hire or as otherwise directed by the Owner.

 

12. Equipment Operator and Use

The Equipment is supplied to the Hirer on the basis that it is used, and its use is supervised, by properly trained and competent personnel in compliance with the manufacturer’s requirements and any of the Owner’s direction, procedures and for the express purpose for which it is hired.

The Hirer must ensure the Equipment and Attachments will be used in a safe and prudent manner, having regard to all relevant occupation and safety requirements and the prevailing operating conditions. If at any time the Hirer discovers the Equipment is not in a safe operating condition then the Hirer shall not use or permit it to be used and must immediately notify the Owner.

 

If during the Hire Period, the Hirer becomes aware of any incident involving the Equipment which has or may result in damage to any property or person, the Hirermust notify the Owner and provide to the Owner a copy of all incident reports and related documentation prepared.

 

13. Fuel

Only engine fuel as specified by the Owner may be used on the Equipment. The Equipment fuel tank will be filled at the commencement of the rental period and should be returned with a full tank, otherwise the Hirer will be obliged to reimburse the Owner for the fuel provided by the Owner at the price paid by the Owner at the time.

 

14. Risk

The Hirer takes and uses the Equipment at its own risk and indemnifies the Owner against any and all liability, claims, costs, expenses and obligations of whatsoever nature or kind which may be made against the Owner or the Owner’s assets to the full extent that such expense, loss or liability arises out of or in connection with any negligent act or omission of the Hirer, its agents or its employees.

 

15. Mobilisation and Demobilisation

The Hirer is responsible for the transport of the Equipment and Attachments to and from the place that the Equipment was located at the commencement of the hire period unless the Owner representative agrees to some other location for post hire transport. All costs associated with the transport (including insurance costs, mobilisation, demobilisation, and pre and post hire inspection costs) is the responsibility of the Hirer.

 

16. Condition at commencement and on return

The Hirer is responsible to inspect the Equipment and Attachments at commencement of the hire and to satisfy themselves that the Equipment and Attachments are clean and serviceable and are satisfactory and capable for the Hirer’s intended use. The Owner makes no warranty or expresses no opinion as to the capability or usability of the Equipment or Attachments for the Hirer’s purposes.

The Equipment and Attachments must be returned in a clean and serviceable condition and similar to the condition in which it was supplied. If, in the reasonable opinion of the Owner, the Equipment or Attachments are not returned in such condition, then the cost of reinstating it to a clean and serviceable condition will be paid for by the Hirer. On completion of the hire and at the time of return of the Equipment there will be a joint inspection to ensure the Equipment is returned in a good, clean and serviceable condition.

 

The Hirer is not entitled to make any modifications to the Equipment without prior authorisation by the Owner.

 

17. Damage

The Hirer must immediately notify the Owner of any damage to the Equipment or Attachments.  The Owner will direct the Hirer to either (a) repair the Equipment or Attachments itself (if the Owner is of the opinion the Hirer can undertake the necessary repairs in the Owner’s absolute discretion); or (b) take the Equipment or Attachments to a specified repairer, the account and costs of which are to the Hirer and payable by the Hirer; or (c) return the Equipment to the Owner for repair by the Owner or someone engaged by the Owner, the account and costs of which are to the Hirer and payable by the Hirer.

 

The Owner accepts responsibility for fair wear and tear provided the Equipment is operated under normal operating conditions and that operators who operate the Equipment do so safely and within its design parameters and recommended procedures.

 

18. Location of Equipment

The Hirer will keep the Equipment and Attachments at the Site Address and will notify the Owner immediately of any change in location.

The Hirer grants the Owner an absolute right of entry to the Site Address to inspect the Equipment or Attachments at any time and if the Hirer is in default under this agreement, the right to repossess the Equipment and Attachments.

 

19. PPSA

This clause applies to the extent that the PPSA operates in relation to any “security interest” under this Hire Agreement.  This document constitutes a security agreement in writing covering the Equipment for the purposes of PPSA.

 

The Equipment and Attachments referred to in this Hire Agreement, is a security interest and a “purchase money security interest” (“PMSI”) to the extent that it can be under s 14 of the PPSA.

 

The Hirer agrees to the extent possible under the PPSA that the Owner is entitled to a security interest in the Equipment and Attachments and that all Equipment and Attachments which is at any time subject to the Owner’s security interest, secures as a PMSI the interest of the Owner as Lessor of all Equipment supplied to the Hirer.  This does not limit what other amounts are secured under this Hire Agreement.

 

The Hirer agrees to do anything (such as obtaining consents and signing documents) which the Owner requires for the purposes of:

 

(d) ensuring that the Owner’s security interest is enforceable, perfected and otherwise effective under the PPS Law;

 

(e) enabling the Owner to gain first priority (or any other priority agreed to by theOwner in writing) for the security interest; and

 

(f) enabling the Owner to exercise rights in connection with the security interest.

 

 

20. Guarantee and Indemnity

If the Hirer is a Company or Trustee of a Trust, the Guarantee and Indemnity in the form which follows the signing clause of this Hire Agreement must be completed and signed by all of the Directors and/or major Shareholders of the Hirer (if a Company) or all of the beneficiaries of the Hirer (if a Trustee of a Trust) at the time of signing this Contract unless exempted by the Owner in writing.