Pensar - Terms of Plant Hire

Terms of Plant Hire 1.

Basis of Order for Plant Hire

1.1

The Purchase Order including these Terms of Plant Hire shall be deemed to be accepted by the Hirer identified in the Purchase Order from the earlier of:

1.2

a.

The Hirer signing and returning a copy of the Purchase Order to Pensar; or

b.

The Hirer’s commencement of work relevant to the hire of the Plant/Equipment after receipt of the Purchase Order.

The acceptance of the Purchase Order by the Hirer is on the basis that: a.

These Terms of Plant Hire are the sole basis of the hire of the Plant/Equipment to the exclusion of any other conditions appearing on any document of the Hirer; and

b.

Modification of these Terms of Plant Hire expressed in any document of the Hirer does not apply to the Purchase Order unless expressly accepted in writing by Pensar.

2.

Plant/Equipment

2.1

The Plant/Equipment to be supplied by the Hirer is described in the Purchase Order that contains the entire agreement between the parties.

2.2

The Hirer warrants that the Plant/Equipment shall be in accordance with the manufacturer’s specification, shall be in good repair and shall be fit for purpose and suitable licensed for operation.

2.3

If the Plant/Equipment requires the Operator to be positioned upon the machine, it shall be fitted with appropriate devices including but not limited to seat belts, Roll Over Protection Structures (ROPS) and Falling Object Protection Structures (FOPS) as required by Pensar, legislation and Australian Standards. The Hirer shall produce on demand by Pensar appropriate documentation to confirm that the Plant/Equipment has been inspected within the past 12 months by a competent person and is in a safe, serviceable condition and complies with relevant legislation and Australian Standards.

2.4

The Plant/Equipment shall be properly maintained and/or repaired by the Hirer throughout the period of hire such that the Plant/Equipment shall be available to operate in an efficient, effective and safe manner at all times during the working hours (period) stated on the Purchase Order.

2.5

The Hirer shall complete and return to Pensar any checklist, record or like document that Pensar may provide to the Hirer relevant to the hire of the Plant/Equipment in accordance with the Purchase Order.

2.6

The Hirer represents and warrants to Pensar that it meets and will continue to meet for the duration of the period of hire, all requirements at law, including the holding of all licences relevant to hire of the Plant/Equipment in accordance with the Purchase Order.

2.7

The Hirer shall comply with all statutory requirements, all authority requirements and any government code(s) that may apply to the Project, to the extent relevant to the hire of the Plant/Equipment in accordance with the Purchase Order.

2.8

Without limiting Clause 2.7, the Hirer acknowledges and agrees that the Plant Code of Practice 2005 published by the Queensland Government under the Workplace Health and Safety Act 1995 shall apply to the Purchase Order.

2.9

The Hirer indemnifies Pensar against any action, suit, claim, demand, cost, loss, expense or damage arising out of or in any way connected with: a.

the infringement of any intellectual property rights relevant to or in any way connected with the hire of the Plant/Equipment in accordance with the Purchase Order;

b.

Any false, misleading, deceptive or misdescriptive representation or statement made by the Hirer to Pensar for or in respect of the Purchase Order.

3.

Delivery and Collection

3.1

The Date for Delivery shall be the date stated in the Purchase Order as may be extended by Pensar pursuant to clause 4.

Document Number: FIN-FRM-002

Date: June 2019, Rev: 3

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Terms of Plant Hire 3.2

The Hirer shall liaise with Pensar prior to the Date for Delivery to confirm the arrangements for the delivery of the Plant/Equipment and at the Hirer’s cost to the Delivery Address on the date and at the time arranged with Pensar.

4.

Delay

4.1

The Hirer shall give immediate notice to Pensar upon becoming aware of any event or circumstance likely to delay delivery of the Plant/Equipment by the Date for Delivery.

4.2

Pensar:

4.3

5.

a.

Shall be entitled at any time to grant an extension of time to the Date for Delivery; but

b.

Shall not be obliged to grant an extension of time to the Date for Delivery except to the extent that a delay to the Date for Delivery is caused by an act, default or omission by Pensar.

The Hirer shall: a.

Take all practical steps to avoid or minimise delay to the Date for Delivery; and

b.

Where a delay does not cause the Date for Delivery to be extended, take whatever action is necessary to deliver the Plant/Equipment by the Date for Delivery.

Cancellation of Order Pensar reserves the right to cancel the Purchase Order if the Plant/Equipment ordered is not delivered to the destination specified in the Purchase Order by the Date for Delivery. If Pensar does cancel the Purchase Order, the Hirer does not have and may not prosecute any claim whatsoever at law or in equity against Pensar for its cancellation of the Purchase Order.

6.

Plant Operator

6.1

Where the Hirer is responsible for the supply of an Operator for the Plant/Equipment, the Operator shall at all times remain an employee of the Hirer. The Hirer shall ensure, to the satisfaction of Pensar that at all times the Operator: a.

Is experienced, competent and fit to operate the Plant/Equipment;

b.

Holds appropriate licences and certificates;

c.

Complies with legislative industrial relations requirements;

d.

Complies with relevant Australian Standards;

e.

Complies with Pensar directions; and

f.

Is paid in accordance with relevant payment conditions and otherwise receives all relevant employee entitlements.

6.2

The requirements of Clause 6.1(c) include, but are not limited to, site inductions, supply and use of appropriate personal protective equipment, safe working procedures and inspections of the Plant/Equipment prior to each working day.

6.3

The Hirer warrants that during the hire of the Plant/Equipment detailed in the Purchase Order the Hirer and its employees, sub-contractors and agents will comply with all requirements of the Pensar project management plan, including the site specific safety plan, environmental management plan and traffic management plans.

6.4

The Hirer shall ensure that it complies with the right of entry provisions of relevant legislation, including the Workplace Health and Safety Act 1995 (Queensland), in the event that any union representative approaches it to gain entry to the Project site. The Hirer shall immediately notify Pensar of any such approach.

7.

Responsibility for Plant/Equipment

7.1

The Plant/Equipment shall at all times remain the property of the Hirer.

7.2

The safekeeping of the Plant/Equipment shall be the responsibility of the Hirer: a.

At all times outside of the period of hire by Pensar; and

Document Number: FIN-FRM-002

Date: June 2019, Rev: 3

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Terms of Plant Hire b.

At all times during the period of hire by Pensar where the Hirer is responsible for the supply of an Operator for the Plant/Equipment.

8.

Damage to Persons and Property

8.1

The Hirer shall indemnify and keep indemnified Pensar against all physical loss or damage to property, including Pensar’s and/or other parties, and all loss or damage resulting from death or personal injury arising out of or resulting from: a.

The Plant/Equipment not complying with the requirements of Clause 2.3;

b.

The Plant/Equipment not being properly maintained in accordance with Clause 2.4;

c.

Where the Hirer is responsible for the supply of an Operator for the Plant/Equipment: i.

The Hirer failing to comply with its obligations under Clause 6.1; and/or

ii. The operation of the Plant/Equipment, other than to the extent that the loss, damage, injury or death is due to the Operator’s compliance with a specific direction from Pensar; and/or d.

Any other act, error, omission or neglect of the Hirer.

8.2

The Hirer shall promptly, at its own expense, make good any loss or damage for which the Hirer is liable in accordance with Clause 8.1.

9.

Public Liability Insurance

9.1

The Hirer shall effect a public liability policy of insurance to cover its liability and its subcontractor’s liability to third parties for loss or damage to property (including loss of use thereof) and death of or injury to any person.

9.2

With respect to public liability insurance required under Clause 9.1, the insurance shall: a.

Be for an amount not less than the sum stated on the Purchase Order;

b.

Be maintained during the period of hire; and

c.

Include the interests of Pensar in respect of matters that may arise out of the hire of the Plant/Equipment for which the Hirer is responsible.

9.3

Subject to Clauses 8 and 9, Pensar shall ensure that its public liability insurance covers; a.

Any liability for loss or damage to the Plant/Equipment during any period for which it is responsible for the safekeeping of the Plant/Equipment; and

b.

Liability to third parties for loss or damage to property (including loss of use thereof) and death of or injury to any person arising out of or resulting from the operation of the Plant/Equipment where: i.

Pensar is responsible for the supply of an Operator for the Plant/Equipment; or

ii. The loss, damage, injury or death is due to the Operator’s compliance with a specific direction from Pensar.

10.

Registration and Insurance of Plant/Equipment

The Hirer shall ensure that at all times during the period of hire, the Plant/Equipment is registered and insured as may be required at law and is insured against loss or damage for not less than its market value.

11.

Insurance of Employees

The Hirer shall insure during the period of hire against liability for death or injury to persons employed by the Hirer including liability by statute and at common law.

The Hirer shall ensure that each of its subcontractors is similarly insured.

12.

Proof of Insurance

Each of the insurance policies required to be effected by the Hirer shall be effected prior to the commencement of the hire.

Document Number: FIN-FRM-002

Date: June 2019, Rev: 3

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Terms of Plant Hire Each policy shall be taken out with an insurer and in terms approved by Pensar.

Whenever requested by Pensar, the Hirer shall produce evidence to the satisfaction and approval of Pensar that it has satisfied all of its insurance obligations under the Purchase Order.

Insurance does not limit the Hirer’s liability under the Purchase Order or otherwise.

13.

Period of Hire

The Plant/Equipment shall be delivered to the Delivery Address and shall be fully operational as required by the Purchase Order at the Hire Start Date/Time stated on the Purchase Order. The Hirer will be notified by Pensar when the Plant/Equipment is no longer required whereupon the period of hire will be deemed terminated and the Plant/Equipment shall be promptly collected from the Delivery Address by the Hirer. The Estimated End of Hire Date is stated on the Purchase Order. The Estimated End of Hire Date is an estimate only and is not guaranteed.

14.

Hire Rates

14.1 The Hire Rates for the Plant/Equipment shall be as stated on the Purchase Order and such rates shall not be subject to price escalation.

14.2 The Hire Rates shall apply at such times as the Plant/Equipment is fully operational as required by the Purchase Order and the Plant/Equipment is operating as directed and to the satisfaction of Pensar.

14.3 Mobilisation is a lump sum payable in respect of the initial delivery of the Plant/Equipment and unloading at the Delivery Address.

14.4 Demobilisation is a lump sum payable in respect of the final removal of the Plant/Equipment from the Delivery Address including the removal of all rubbish and other things belonging to the Hirer.

15.

Times to be Agreed

15.1 The authorised representatives of the Hirer and Pensar shall meet as stated below to agree in writing the times for which the Hire Rates shall apply. Such meetings shall be at the end of each day’s work for hourly and daily hired Plant/Equipment and at the end of each week’s work for weekly hired Plant/Equipment.

15.2 If the Hirer’s representative fails to meet with Pensar’s representative at the time stated, Pensar’s representative shall determine the times for which the Hire Rates shall apply and Pensar’s representative’s determination shall be final and binding.

16.

Progress Claims and Payment

16.1 The Hire Rates stated in the Purchase Order are deemed to include for everything necessary for the Hirer to hire the Plant/Equipment to Pensar in accordance with the Purchase Order and to fulfil all of its obligations under the Purchase Order. Accordingly, the value of the hire shall be: a.

An amount calculated by multiplying the relevant GST exclusive Hire Rates stated in the Purchase Order by the relevant times agreed or determined pursuant to Clause 15; less

b.

The reasonable GST exclusive costs incurred by Pensar in remedying any default by the Hirer of its obligations under the Purchase Order; less

c.

The amount of any GST exclusive costs, losses or damage suffered by Pensar if the Hirer does not fulfil its obligations under the Purchase Order or otherwise, in respect of matters which constitute taxable supplies for the purposes of the GST Act; plus

d.

Subject to Clause 17, the amount of GST calculated at the statutory rate (currently 10%) relevant to the sum of paragraphs (a), (b) and (c) above; and less

e.

The amount of any GST exclusive costs, losses or damage suffered by Pensar if the Hirer does not fulfil its obligations under the Purchase Order or otherwise, in respect of matters which do not constitute taxable supplies for the purposes of the GST Act.

16.2 Claims for payment shall be submitted in a form acceptable to Pensar on or before the time for submission of claims stated in the Purchase Order.

Document Number: FIN-FRM-002

Date: June 2019, Rev: 3

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Terms of Plant Hire 16.3 Progress payments shall be made for Pensar’s determination of the value of hire performed less the amount paid in previous progress payments. Payments shall be made in accordance with the payment terms stated in the Purchase Order.

16.4 Subject to clauses 16, 17, 18 and 19 unless stated otherwise, payment shall be made no later than 45 days from the end of the month quoted in the Hirer’s payment claim provided that the Plant Hire detailed in that payment claim satisfies all requirements for the Plant Hire defined in the Purchase Order.

16.5 At Pensar’s discretion, payment shall be made by electronic funds transfer or by cheque. The date of payment shall be regarded as the date on which the funds are cleared by Pensar for payment, the funds being available to the Supplier within 2 business days thereafter.

16.6 The Hirer shall not submit a claim for payment to Pensar unless: a.

Its employees and subcontractors have been paid all amounts due and payable to them;

b.

It has paid all workers compensation insurance premiums due and payable by the Hirer in connection with the Hire of the Plant/Equipment;

c.

It has paid all payroll tax due and payable in respect of wages paid or payable to employees engaged in connection with the hire of the Plant/Equipment;

d.

It has complied with all statutory obligations in connection with the hire of the Plant/Equipment.

16.7 Pensar may, at any time and as a condition precedent to payment, require the Hirer to provide evidence to Pensar’s satisfaction of the Hirer’s compliance with Clause 16.6.

17.

Goods & Services Tax (GST)

17.1 Each claim for payment for the Goods and/or Services under the Purchase Order shall be a tax invoice that complies with the requirements of the relevant GST legislation.

17.2 The aggregate amount of all amounts paid and due under the Purchase Order must be covered by one or more tax invoices prepared in compliance with the relevant GST legislation.

18.

Default

Without limiting Pensar’s rights under clause 19, if the Hirer fails: a.

To promptly and properly make good any damage or loss for which the Hirer is responsible;

b.

To supply the Plant/Equipment to meet the requirements of the Purchase Order;

c.

To remove rubbish or other items belonging to the Hirer;

d.

To properly maintain and/or repair the Plant/Equipment; and/or

e.

To comply with any other obligation it has under the Purchase Order;

then: f.

Pensar may, at its discretion, and without obligation, remedy that failure on behalf of the Hirer and the cost of so doing shall be valued under clause 16.1(b); and

g.

Any cost, loss and/or damage that Pensar has incurred or is likely to incur as result of the Hirer’s default shall be valued under clause 16.1(c).

19.

Termination

19.1 In the event that: a.

The Hirer fails to comply with its obligations under the Purchase Order (including, without limitation, failure to comply with its obligations in a timely manner);

b.

The Hirer is insolvent or bankrupt; and/or

c.

The Hirer dies,

then Pensar, may at its sole discretion, terminate the Purchase Order.

19.2 Upon termination under clause 18.1:

Document Number: FIN-FRM-002

Date: June 2019, Rev: 3

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Terms of Plant Hire

20.

a.

Pensar shall be liable only for those amounts which become payable for the Plant Hire accepted by Pensar as at the date of termination; and

b.

Any cost, loss and/or damage that Pensar has incurred or is likely to incur as result of the Hirer’s default shall be valued under clause 16.1(c).

General

20.1 The Supplier shall not assign novate nor subcontract any of its rights or obligations under the Purchase Order without Pensar’s prior written approval.

20.2 Unless stated otherwise, the Purchase Order shall be governed by the laws of Queensland.

20.3 The failure by Pensar to enforce the provisions of the Purchase Order or to exercise any rights expressed in the Purchase Order is not a waiver of such provisions or rights and does not affect the enforcement of the Purchase Order.

20.4 Upon completion of the hire and prior to the final payment to the Hirer, the Hirer shall fully release and discharge Pensar and its employees and agents from and against all claims, demands and causes of action and proceedings of every kind and nature which the Hirer may or might have had or might assert to have. Acceptance of the final payment by the Hirer shall be deemed to include such release and discharge.

21.

Other Terms and Special Conditions

In the event that the terms in clauses 1 to 20 above conflict with any other terms stated in the Purchase Order including any Special Conditions then such other terms or Special Conditions shall take precedence to the extent of the conflict.

22.

Definitions

Date for Delivery

means the Date for Delivery specified as the date required in the Purchase Order.

Operator

means the person supplied by the Hirer, or engaged by Pensar to operate the hired Plant/Equipment.

Pensar

means the entity within the Pensar group of companies listed below that is identified on the Purchase Order and includes its successors and assigns – Pensar Urban Pty Ltd

ABN 29 624 311 888

Pensar Building Pty Ltd

ABN 44 111 529 278

Pensar Civil Pty Ltd

ABN 70 120 834 675.

Pensar Structures Pty Ltd

ABN 71 622 157 466

Pensar Water Pty Ltd

ABN 75 622 157 484

Pensar Utilities Pty Ltd

ABN 51 159 247 631

Pensar Project Infrastructure Pty Ltd

ABN 49 626 424 842

Pensar Resource Infrastructure Pty Ltd

ABN 51 626 424 851

Purchase Order

means the Order for Plant Hire supplied by Pensar to the Hirer in confirmation of agreed plant hire arrangements and includes the Terms of Plant Hire.

Hirer

means the Hirer named on the Purchase Order.

Terms of Plant Hire

means the Terms of Plant Hire set out in clauses 1-21 (inclusive).

Document Number: FIN-FRM-002

Date: June 2019, Rev: 3

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