TES equipment hire agreement

5.1            If Item 9 of the Schedule so prescribes, you must on or before the Hire Term pay a refundable security deposit for the Equipment to TES (“Security Deposit”).

5.2            TES may apply the Security Deposit in satisfaction of any amounts due and payable under this Agreement.

5.3            TES will refund any unused balance of the Security Deposit you within a reasonable time after the Equipment is collected and inspected, and in any event no later than one (1) month after collection.

6.1            You must:

(a)      promptly provide TES with all information that is necessary and appropriate to allow TES to carry out its obligations under this Agreement, including specifications of the Premises and required installation, or that is otherwise required by TES in order to exercise its rights and obligations under this Agreement;

(b)     conduct a comprehensive hazard and risk assessment before using the Equipment;

(c)      ensure that the Equipment is used only for the purpose for which it was designed by the manufacturer and in accordance with the manufacturer's and TES’ instructions;

(d)     operate the Equipment safely and strictly in accordance with all applicable laws and ensure the Equipment is stored safely and securely at all times;

(e)      ensure that the Equipment is operated using an adequate and compatible power supply, data connection, or communication interface;

(f)       ensure persons operating or erecting the Equipment: (i) are suitably trained on its safe and proper use; (ii) are appropriately qualified and where necessary, hold a current licence and/or licence (including any required licence to perform high risk work, as required by law) and consents to operate the Equipment; (iii) wear suitable clothing and protective equipment when operating the Equipment as reasonably required or otherwise specifically recommended by TES or the manufacturer; (iv) are not under the influence of drugs or alcohol and do not carry illegal, prohibited or dangerous substances while in, on or around the Equipment;

(g)      to the extent required or recommended by TES, the manufacturer or applicable workplace, health and safety laws, conduct a job safety analysis prior to using the Equipment;

(h)     display all safety signs and instructions (as required by law) and ensure that all instructions and signs are observed by operators of the Equipment;

(i)       clean, fuel, lubricate and keep the Equipment in good condition and in accordance with the manufacturer's and TES’ instructions at your own cost; and

(ii)      fully cooperate with TES and its insurer in the investigation, settlement, or defence of any claim or issue arising in connection with the Equipment or its use under this Agreement.

6.2            You must not:

(a)      allow or authorise any other person or entity to use, re-hire or have possession of the Equipment at any time, unless expressly agreed by TES in writing;

(b)     in any way alter, modify, tamper with, damage or repair the Equipment without TES’ prior written consent;

(c)      uninstall or move the Equipment without TES’ prior written consent or unless otherwise required under this Agreement;

(d)     deface, remove, vary or erase any identifying marks, plate, number, notices or safety information, on the Equipment;

(e)      use the Equipment for any illegal, prohibited, or dangerous purpose, or in a manner inconsistent with its design, rating, or intended use;

(f)       expose the Equipment to excessive dust, vibration, moisture, corrosive chemicals, or other environmental conditions that may reasonably be expected to cause damage or deterioration;

(g)      without TES’ prior written consent, alter or interfere with any data-logging, GPS, telemetry, or communications components installed on or associated with the Equipment; or

(h)     permit any act or omission that may result in the Equipment being seized, forfeited, or otherwise taken from the control of TES.

6.3            You must comply with all Laws (including Environmental Laws and workplace health and safety laws) in connection with your use of the Equipment and immediately rectify any breach of any such Law caused by your use of the Equipment.

6.4            You must:

(a)      ensure the Equipment is not contaminated with any hazardous substances (including asbestos);

(b)     advise TES of any risks of hazardous substance contamination to the Equipment as soon as they become apparent.

7.1            Subject to clause 7.4, TES owns the Equipment and retains title to the Equipment at all times. Your rights to use the Equipment are as a bailee only.

7.2            You must not offer, sell, assign, sub-let, charge, mortgage, pledge or create any form of security interest over, or otherwise deal with the Equipment in any way.

7.3            In no circumstances will the Equipment be deemed to be a fixture.

7.4            TES may hire or lease Equipment from a third party. Title in the Equipment owned by that third party remains with that third party at all times.

8.1            You hereby warrant that before taking delivery of the Equipment, you are satisfied as to the suitability and condition of the Equipment. 

9.1            You must allow TES to enter the Premises and inspect and maintain (at TES’ cost) the Equipment from time to time during the Hire Period during ordinary business hours.

9.2            If TES is unable to inspect or maintain the Equipment during ordinary business hours due to your unavailability or any restriction on access, TES may perform the inspection or maintenance outside ordinary business hours. In that case, you must pay TES the applicable maintenance fee, as invoiced by TES.

10.1         If the Equipment breaks down, becomes unsafe to use, is lost, stolen or damaged during the Hire Period, you must:

(a)      in the case of damage, unsafe use or breakdown, immediately stop using the Equipment;

(b)     immediately notify TES and provide all relevant particulars of the incident;

(c)      for incidents of theft, promptly report the incident to the police and provide TES with a written police report (and you must continue to pay the Hire Fee until TES receives such report and determines that the Equipment is lost beyond recovery);

(d)     take all steps necessary to prevent injury occurring to persons or property and to prevent further damage to the Equipment; and

(e)      not repair or attempt to repair the Equipment without TES’ written consent.

10.2         If the Equipment breaks down, becomes unsafe to use or is damaged as a result of:

(a)      Fair Wear and Tear; or

(b)     any act or omission of TES,

then upon receiving notice from You in accordance with clause 10.1, TES will:

(c)      take all reasonable steps to repair the Equipment or provide a suitable replacement, at TES’ cost, as soon as reasonably possible; and

(d)     not impose a Hire Fee for that portion of the Hire Period during which the Equipment was broken down or unsafe.

10.3         If the Equipment:

(a)      breaks down, becomes unsafe to use or is damaged for any reason other than as a result of Fair Wear and Tear or TES’ act or omission; or

(b)     is lost or stolen during the Hire Period,

then, upon receiving notice from you under clause 10.1, and subject to clause 14, TES will take all reasonable steps to repair the Equipment or provide a suitable replacement as soon as reasonably possible, and you must pay TES (except to the extent expressly limited by a Damage Waiver under clause 11):

(c)      the costs and expenses suffered or incurred by TES to recover, repair and/or replace the Equipment (as determined by TES, acting reasonably) upon provision of a tax invoice; and

(d)     the Hire Fee for the portion of the Hire Period during which the Equipment was broken down, unsafe, damaged and/or being recovered, repaired or replaced in accordance with clause 4.

10.4         If the Equipment becomes contaminated, you must effectively decontaminate the Equipment at your cost and provide TES with written details of such decontamination. If, in TES’ reasonable opinion, the Equipment is not capable of being decontaminated, you must pay the replacement cost of the Equipment.

10.5         If an event described in clause 10.3(a) or (b) occurs and the Equipment is unable to be replaced or TES chooses not to replace the Equipment, then without limiting any other right of TES, TES may terminate this Agreement on written notice to you. 

11.1         Nature of Damage Waiver

The parties agree that, subject to the terms of this clause 11, your liability for damage to the Equipment during the Term will be limited in certain circumstances (“Damage Waiver”). The Damage Waiver is not insurance. 

11.2         Quantum and application of Damage Waiver

(a)      TES agrees to limit your Liability for damage to the Equipment for each item of, and each incident of damage to, the Equipment to the lesser of:

(b)     the actual repair cost of the Equipment; and

(c)      20% of the current replacement cost of the Equipment (as reasonably determined by TES using supplier list prices if available).

(d)     The Damage Waiver only applies to physical damage sustained by the Equipment during the Term resulting from accidental causes not otherwise excluded in this clause 11.

(e)      The Damage Waiver does not cover the costs of recovering, retrieving or relocating the Equipment.  These costs remain payable by you in all circumstances.

(f)       The Damage Waiver will not apply if you do not cooperate with TES and provide TES with full details of the damage incident, including any written or photographic evidence TES may require.

11.3         Exclusions

The Damage Waiver does not apply, and will not limit your Liability in the following circumstances:

(a)      theft or loss of the Equipment or where the Equipment is otherwise not returned to TES;

(b)     where the damage to the Equipment is beyond repair;

(c)      where the damage has arisen as a result of or has been caused by:

(i)        your breach of this Agreement;

(ii)      your negligent act or omissions or wilful or deliberate damage (or any person under your control);

(iii)     your use of the Equipment in violation of any Laws;

(iv)     your failure to use the Equipment for its intended purposes or in accordance with TES’ or the manufacturer’s instructions;

(v)      the Equipment being located, used, loaded, unloaded, transported on or over water, wharves, bridge or vessels of any kind;

(vi)     lack of lubrication or failure to properly service the Equipment;

(vii)    overloading of the Equipment or any components thereof;

(viii)  electrical overload, a surge in electrical current or the use of under-rated or excessive lengths of extension leads with the electrical Equipment;

(ix)     exposure to any Harsh Environments including corrosive or caustic substances, cyanide, salt water, acid or other hazardous environments;

(x)      vandalism;

(xi)     Equipment being tampered with, dismantled or repaired by a person not authorised by TES;

(xii)    fire, water ingress, immersion, excessive moisture, dust contamination, lightning strike, or other natural elements;

(d)     where any data, software, or information stored on or generated by the Equipment is lost or corrupted for any reason;

(e)      where TES determines that you failed to take reasonable steps to prevent the damage or loss, including failure to properly secure the Equipment, store it safely, or protect it from foreseeable harm.

11.4         Acknowledgement

You acknowledge that you remain liable for the full replacement cost of any Equipment that is damaged beyond repair (other than as a result of Fair Wear and Tear or TES’ act or omission) or is lost or stolen whilst it is in your possession or control.

11.5         Inspection and determination

TES will assess the nature and cause of any damage to the Equipment and determine, acting reasonably, whether the Damage Waiver applies. TES’s determination shall be final unless manifestly in error.

11.6         Third party property damage

(a)      The Damage Waiver does not extend to any property owned by third parties or to consequential damage arising from your use of the Equipment.

(b)     You remain liable for any loss or damage caused to third-party property to the extent that it has not been contributed to by TES or its agents.

11.7         Data Loss

You agree that TES is not liable for and the Damage Waiver does not cover loss, corruption, or damage to any data, logs, measurements, or recorded information generated, collected, or stored by the Equipment.   You are solely responsible for ensuring appropriate backup and data protection procedures are in place.

11.8         Accrual of Hire Fee

The Hire Fee will continue to accrue on a pro-rata daily basis until the Equipment is either returned, replaced, or deemed by TES to be a total loss, even if you have paid or agreed to pay the Liability limited by the Damage Waiver.

12.8         Neither party will disclose information of the kind mentioned in section 275(1) of the PPSA, and you will not authorise, and will ensure that no other party authorises, the disclosure of such information.

13.1         You must during the whole of the Hire Period and any other period whilst the Equipment is in your possession take out and maintain:

(a)      public liability insurance with a minimum value of $20 million for any one event; and

(b)     where the full insurable value of the Equipment exceeds $5,000, either:

(i)       property insurance for the full insurable value of the Equipment taken out by you; or

(ii)      property insurance for the Equipment arranged by TES (at your cost).

13.2         You must ensure that the policies for the insurance covers referred to in clause 13.1:

(a)      are with a reputable insurer;

(b)     name TES as co-insured;

(c)      do not have any exclusions, endorsements or variations without TES’ written consent; and

(d)     include run-off periods reasonably required by TES.

13.3         You must provide TES with certificates of currency in respect of the policies of insurance referred to in clause 13.1 at commencement of the Hire Period and afterwards on each anniversary of the commencement of the Hire Period and otherwise promptly following a request by TES.

14.1         You are liable for and indemnify TES and its Related Bodies Corporate against all Liability in respect of:

(a)      personal injury;

(b)     damage to property; and

(c)      a claim by a third party,

in respect of:

(d)     your hire or use of the Equipment; or

(e)      your breach of this Agreement; or

(f)       your negligence, save to the extent such Liability is contributed to by TES’ negligence.

14.2         TES makes no representation or gives no guarantee that:

(a)      the Premises is suitable for the use of the Equipment; or

(b)     the Equipment is suitable for your intended use of the Equipment.

14.3         Notwithstanding any other clause of this Agreement, to the extent permitted by law and whether arising in contract, tort (including negligence), equity, warranty, indemnity, statue or otherwise:

(a)      TES’ aggregate Liability arising out of or in connection with this Agreement is limited to an amount equal to the fees paid by You under this Agreement; and

(b)     TES is not liable for any Consequential Loss howsoever caused or for any loss suffered by third parties under or in connection with this Agreement.

14.4         Subject to clause 14.5, and except as expressly set out in this Agreement, all guarantees, terms, conditions, warranties, undertakings or representations whether express or implied, statutory or otherwise, relating to this Agreement are excluded to the maximum extent permitted by law.

14.5         Where TES is not able to exclude a guarantee, term, condition, warranty, undertaking or representation by law in relation to this Agreement (a Non-Excludable Provision), then TES’ Liability for breach of a Non-Excludable Provision is limited to (at TES’ option):

(a)      in the case of goods, the repair or replacement of the goods or the supply of substitute goods (or the cost of doing so); or

(b)     in the case of services, the supplying of the services again, or the payment of the cost of having the services supplied again.

15.1         The Equipment may contain internal data-logging or GPS-related devices that collect operational and performance information such as geolocation, status, usage time, power cycles and error codes (“Telemetry Data”).

15.2         You hereby consent to TES collecting, storing and using the Telemetry Data for purposes including maintenance, planning, equipment tracking, service quality assurances, analytics and those set out in clauses 16.2 and 16.3.

15.3         TES is not liable with respect to your use or reliance on any Telemetry Data.

15.4         You acknowledge that:

(a)      TES owns all rights, title and interest (including intellectual property rights) in the Telemetry Data, subject to any applicable privacy rights;

(b)     TES does not warrant the accuracy of any Telemetry Data or guarantee that such data will be available to you throughout the Hire Period;

(c)      the Telemetry Data may not be available for retrieval after the Hire Period; and

(d)     TES may disclose, from time to time, any Telemetry Data to a third party who is not a party to this Agreement (for example location and utilisation data with respect to the Equipment) and TES is not required to obtain your prior consent to such disclosure.

16.4         You have the right to access the personal information TES holds about you.  A copy of TES’ current privacy policy and contact details of its privacy officer are available upon request or by visiting www.thomsongroup.com.au/privacy-policy.

(c)      required to enable the disclosing party to make or defend any claim under this Agreement.

18.1         If a party (“the Affected Party”) is prevented, in whole or in part, from carrying out its obligations under this Agreement (other than an obligation to pay monies owing to TES during the Term) (“the Affected Obligations”) as a result of Force Majeure:

(a)      the Affected Obligations are suspended;

(b)     the Affected Party must:

(ii)        use reasonable endeavours to overcome the effects of the Force Majeure as soon as reasonably practicable

(iii)      take all reasonable steps to mitigate the impact of the Force Majeure on the Affected Obligations; and

(c)      unless this Agreement is terminated, the Affected Party must resume performance of the Affected Obligations as soon as possible after the Force Majeure ceases.

18.2         If an event of Force Majeure continues for a continuous period of 90 days or more, then either party may terminate this Agreement by written notice to the other.

18.3         Nothing in this clause 18 will limit or exclude your responsibility and liability under clause 10.3.

18.4         You remain liable to pay Hire Fee for the Hire Period whilst the Equipment is not in TES’ possession.

19.1         A party (“Terminating Party”) may terminate this Agreement on written notice to the other party if:

(a)      the other party breaches this Agreement and does not rectify that breach within fourteen (14) days of written notice from the Terminating Party setting out the breach;

(b)     an Insolvency Event occurs in respect of the other party;

19.2         TES may refuse to hire the Equipment and, on written notice to you, terminate this Agreement if, in its opinion:

(a)      the Premises is not suitable for use of the Equipment;

(b)     your intended use for the Equipment is not suitable for use of the Equipment;

(c)      the statutory and safety requirements for use of the Equipment are not, or are likely to not be, met; or

(d)     there is a hazardous risk to the Equipment.

19.3         The rights of termination set out in this clause 19 are in addition to any other rights either party has under this Agreement and do not exclude any right or remedy available under law or equity.

20.1         “Client” or “you” or “your” means the entity named as the client in Item 1 of the Schedule.

20.2         “Confidential Information” means each party’s information made available to the other at any time concerning the business, operations, finances, plans or contractors of the disclosing party (or the disclosing party’s Related Bodies Corporate), including customer lists and pricing information and including any information that is derived from such information, but does not include information which:

(a)      is or becomes public knowledge other than by a breach of this Agreement; or

(b)     is independently known to, or developed by, the receiving party as evidenced by the receiving party’s written records.

20.3         “Consequential Loss” means indirect or special loss or damage, loss of actual or anticipated profit, loss of business, business interruption, loss of overhead, loss of contract, loss of revenue or loss of opportunity or wasted costs.

20.4         “Equipment” means the equipment described in Item 5 of the Schedule.

20.5         “Environmental Laws” means any statute, regulations or other laws made or issued by a regulatory body or government regulating or otherwise relating to the environment including the use or protection of the environment.

20.6         “Excessive Cleaning” means and cleaning, in addition to a standard wipe-down, required to return the Equipment to the condition it was in immediately prior to hire, excluding fair wear and tear. Excessive Cleaning includes, without limitation, removal of paint, dust build-up, oil, corrosion, resins, adhesives, or other residue.

20.7         “Fair Wear and Tear” means normal deterioration which could be reasonably expected over the Hire Period under normal operating conditions, where the Equipment is operated by a reasonably competent operator, having regard to the condition, age, existing wear and other specific characteristics of the Equipment, but excludes deterioration to the Equipment caused by use in Harsh Environments.

20.8         "GST" means any goods and services tax and any replacement or similar tax.

20.9         “Harsh Environments” means sites with exposure to salt water and off shore locations.

20.10      “Hire Fee” means the fee set out in Item 7 of the Schedule plus GST (unless otherwise expressly stated).

20.11      “Hire Period” means the period set out in Item 6 of the Schedule, and if no commencement date has been specified in Item 6, the period commences on the day that the Equipment is installed by TES (or its nominees) at the Premises, subject to early termination of this Agreement.

20.12      “Insolvency Event” means the occurrence of any one or more of the following events in relation to a party:

(a)      a liquidator, provisional liquidator, or administrator has been appointed to the party or a receiver and/or controller (as defined in section 9 of the Corporations Act 2001 (Cth)) has been appointed to the whole or a substantial part of the property of the party;

(b)     an order has been made, or a resolution has been passed or proposed in a notice of meeting, for the winding up or dissolution of the party;

(c)      a sequestration order has been made against the party or the party has otherwise been declared bankrupt or the party has entered into an agreement under Part X of the Bankruptcy Act 1996 (Cth);

(d)     a security interest (within the meaning of section 51A of the Corporations Act 2001 (Cth)) is enforced over, or a writ of execution, garnishee order, mareva injunction or similar order has been issued over or affecting, all or a substantial part of the property of the party; or

(e)      the party has otherwise become insolvent in any jurisdiction or an event occurs in any jurisdiction in relation to the party which is analogous to, or which has a substantially similar effect to, any of the events referred to in paragraphs (a) to (d) above.

20.13      “Laws” means any applicable statute, regulation, by-law, ordinance, policy or subordinate legislation in force from time to time, and includes the common law and equity as applicable from time to time, and any standards or industry codes of conduct, or government agency requirement or authorisation (including conditions in respect of any authorisation).

20.14      “Liability” includes all liability, claims, damage, loss, costs and expenses (including legal fees, costs and disbursements on a full indemnity basis) and any environmental loss, cost, damage or expense.

20.15      “Premises” means the premises at which the Equipment is to be installed during the Term as agreed by TES, which as at the date of this Agreement is the premises described in Item 10 of the Schedule.

20.16      “Related Body Corporate” has the meaning given to it in the Corporations Act 2001 (Cth).

20.17      “Schedule” means the schedule to which these Terms are attached.

20.18      “Term” means the term of this Agreement, being the period from the date of this Agreement until the date that is seven (7) days after the Hire Term, subject to early termination in accordance with this Agreement.

20.19      “These Terms” means these Terms of Hire.

21.1         Binding nature of this Agreement

Each party binds itself and its partners, successors, executors, administrators, assigns and personal legal representatives to the other party to this Agreement and to the partners, successors, executors, administrator, assigns and personal legal representatives of the other party in respect to all covenants and obligations of this Agreement.

21.2         Notices

(a)      A notice purported to be served under this Agreement shall be deemed to have been properly served if the same is in writing and is personally delivered or sent to the last known business address or email address of the recipient by mail or email.

(b)     A notice sent by post is deemed to have been received four (4) days after the date of posting.  A notice sent by email is deemed to have been received on the day it was sent, unless:

(i)       an automatic notification is received by the sender to the effect that the email could not be sent; or

(ii)      it was sent on a day that is not a business day or after 5.00 pm on a business day, in which case it will be deemed to have been received on the following business day.

21.3         Assignment

You shall not assign, subcontract or transfer any right or obligation under this Agreement without the prior written consent of TES. Unless specifically stated to the contrary in any written consent to an assignment, no assignment shall release or discharge you from any obligation under this Agreement.

21.4         Variation

The terms of this Agreement may only be varied by the parties in writing.

21.5         Governing Law

This Agreement shall be governed by the laws of the state of New South Wales, Australia and each party submits to that jurisdiction.

21.6         Severability

If any provision of this Agreement or its application to any person or circumstance is or becomes invalid, illegal or unenforceable the provision shall, so far as possible, be read down to such extent as may be necessary to ensure that it is not invalid, illegal or unenforceable. If any provision or part of it cannot be so read down the provision or part of it shall be deemed to be void and severable and the remaining provisions of this Agreement shall not in any way be affected or impaired.

21.7         Entire Agreement

Each party acknowledges that there are no verbal promises, undertakings or agreements in connection with this Agreement. All previous negotiations and agreements between the parties with respect to the transaction set forth in this Agreement are merged into this document which fully and completely expresses the entire agreement between the parties, setting forth all the parties’ rights and obligations.

21.8         Electronic execution

To the extent permitted by law, a party may sign this agreement electronically, including by using software or a platform for the electronic execution of contracts.  Each other party consents to that party signing this agreement electronically.