Hire Terms and Conditions

1.5          “Business Day” means any week day on which banks are generally open for business in Brisbane, Queensland.

1.6          “Claim” means any actual, contingent, present or future claim, demand, action, suit or proceeding for any Liability, restitution, equitable compensation, account, injunctive relief, specific performance or any other remedy of whatever nature and however arising, whether direct or indirect, and whether in contract, tort (including but not limited to negligence) or otherwise.

1.7          “Credit” means Reactive Generators providing, or proposing to provide, in the course of business, credit to the Hirer in relation to the provision of Equipment on hire.

1.8          “Damage Waiver” means an agreement between the Hirer and Reactive Generators that reduces the excess payable if the Hirer damages the Equipment during the Hire Period in exchange for payment of the Damage Waiver Excess Fee. 

1.9          “Damage Waiver Excess Fee” means the fee payable by the Hirer to Reactive Generators pursuant to Clause 27 of this Agreement.

1.10       “Equipment” means the plant and/or equipment provided by Reactive Generators to the Hirer pursuant to this Agreement, as specifically identified in Item 1 of the Reference Schedule.

1.11       “Hire Fees” means the fees and charges for the hire of the Equipment including but not limited to any other fees, charges or expenses that Reactive Generators is entitled to recover under this Agreement.

1.12       “Hire Period” means the period whichever is the greater of the following periods: (a) the Minimum Hire Period; or (b) the period noted in Item 2 of Schedule A.

1.13       “Hirer” means the party described as the Hirer in this Hire Agreement and which is the Applicant on the Page 1.

1.14       “Incident” means any event that has caused any physical, functional or other damage to the Equipment that is not general wear and tear or use of the Equipment. 

1.15       “Liability” means any loss, liability, cost, payment, damages, debt or expense (including but not limited to reasonable legal fees).

1.16       “Minimum Hire Charges” means the amount calculated with reference to the Minimum Period multiplied by the hourly rate or daily rate.

1.17       “Minimum Hire Period” means the period specified in a quote, or if there is no quote, in the rates specified in Reactive Generators’ current price list from time to time or on the Website or job docket or quoted by it separately.

1.18       “Operator” means a person in control or operation of the Equipment.

1.19       “Outstanding Debts” means all amounts payable by the Hirer to Reactive Generators pursuant to this Agreement.

1.20       “PPSA” means the Personal Property Securities Act 2009 (Cth).

1.21       “Prescribed Circumstances” means an Incident that has occurred in the following circumstances:

(a)           where the Equipment is lost or stolen;

(b)           where the Hirer or an Operator does not have a suitable licence;

(c)           where the Hirer or Operator is under the influence of alcohol, drugs, and/or other substances that will affect the Hirer or Operator’s ability to operate the Equipment;

(d)           where the Equipment is willfully damaged by the Hirer or Operator during the Hire Period;

(e)           where the Hirer damages the Equipment due to insufficient clearance, including collision with a bridge, carpark, awning, gutter, tree or any other overhead structure or object;

(f)            where the Equipment is damaged while the Equipment is being moved, transported or relocated by the Hirer and/or Operator on a road that is not sealed or is not a public road;

(g)           where the Equipment is damaged due to the method of use that is not in accordance with the manual by the Hirer and/or Operator or the recommendations of Reactive Generators, including overloading;

(h)           where the Equipment is damaged due to general water damage, including flooding; 

(i)             where the Equipment is damaged by a truck crane or a Pantech truck; and

(j)             where the Equipment is stolen due to the Hirer’s failure to keep the Equipment in a secured enclosed area that is locked with an appropriate locking mechanism.

1.22       “Privacy Act” means Privacy Act 1988 (Cth).

1.23       “Replacement Cost” means Reactive Generators’ cost to acquire plant and/or equipment of the same model or description (or if that model is not available, a similar model that performs a similar function) to the hired Equipment which is to be assessed at the date of hire together with any ancillary costs to be incurred in replacing the lost, damaged or stolen Equipment such a stamp duty, registration fees and the like. 

1.24       “Security interest” means a security interest within the meaning of the Personal Property Securities Act 2009.

1.25       “Services” means any services associated with the provision of the Equipment.

1.26       “Surcharge” means the Equipment hire rates specified in a quote, or if there is no quote, the rates specified in Reactive Generators current price list from time to time or job docket or quoted by it separately plus 25%.

1.27       “Site” means the place or places at which the Hirer will use the Equipment.

1.28       “Website” means the website of Reactive Generators, namely ‘www.reactivegenerators.com.au/’.

2.         TRUSTEE CAPACITY

2.1          If the Hirer is the trustee of a trust (whether disclosed to Reactive Generators or not), the Hirer warrants to Reactive Generators that:

(a)           the Hirer enters into this Agreement in both its capacity as trustee and personal capacity;

(b)           the Hirer has the right to be indemnified out of trust assets;

(c)           the Hirer has the power under the Trust Deed to sign this Agreement; and

(d)           the Hirer will not retire as trustee of the trust or appoint any new or additional trustee without advising Reactive Generators.

2.2          The Hirer must give Reactive Generators a copy of the Trust Deed upon any request made by any representative of Reactive Generators.

3.         ACCEPTANCE

3.1          The Hirer is taken to have accepted, and is immediately bound, jointly and severally, by this Agreement if the Hirer (or its agent or employee) orders Equipment and/or accepts delivery of the Equipment.

3.2          This Agreement shall prevail to the extent of any inconsistency with any other document or agreement.

4.          FORMATION OF CONTRACT

4.1          Quotations given by Reactive Generators will not be construed as an offer or obligation to supply in accordance with the quotation. Reactive Generators reserves the right to accept or reject, at its discretion, any offer to hire received by it from the Hirer to hire Equipment pursuant to the terms contained in a quotation.

4.2          Placement of an order, either verbally or in writing, will imply acceptance of the quotation given by Reactive Generators and will be subject to the terms and conditions contained in this Agreement.

5.          ONGOING OPERATION OF THESE TERMS

5.1          The Hirer acknowledges and agrees that these terms and conditions:

(a)           will apply and take effect each time the Hirer (or its authorised representative or employee) places an order for provision of Equipment from Reactive Generators from time to time;

(b)           each quote given by Reactive Generators (whether orally or in writing) shall incorporate these terms and conditions and upon the Hirer’s acceptance of the quote or accepting delivery of the Equipment the Hirer irrevocably accepts and agrees to be bound by these terms and conditions.  

5.2          The Hirer further acknowledges and agrees that Reactive Generators may update or amend these terms and conditions from time to time and the amended terms and conditions will be published on Reactive Generators’ website as maintained from time to time. The Hirer agrees to be bound by the terms and conditions that are current at the time of placing an order or accepting a quote which are published on the website. To the extent of any inconsistency, the terms and conditions as published on the website from time to time will prevail over these terms but only to the extent of the inconsistency. 

6.         HIRE FEES

6.1          At the sole discretion of Reactive Generators, the Hire Fees shall be calculated by reference to the rates specified in Reactive Generators current price list from time to time, this Agreement, any job docket or quoted by it separately.

6.2          The Hirer acknowledges that:

(a)           Where an hourly or daily rate is applicable, that rate shall be applied to the greater of the Hire Period or the Actual Hire Period to determine the Hire Fees, subject to other terms in this Agreement;

(b)           Where the Actual Hire Period exceeds the Hire Period, Reactive Generators shall be entitled to charge, and the Hirer is liable to pay, a Surcharge for the difference in time between the Hire Period and the Actual Hire Period;

(c)           Reactive Generators is entitled to charge, and the Hirer is liable to pay, the Hire Fees for the Minimum Period, notwithstanding that the period for which the Hirer requires the Equipment is less than that Minimum Period;

(d)           it is responsible for and must pay Reactive Generators for all freight and other charges incurred by Reactive Generators in delivering and unloading the Equipment at the Site and loading the Equipment at the Site and retuning it to Reactive Generators’ holding yard; and

(e)           it is responsible for and must pay Reactive Generators for all tolls and levies incurred by Reactive Generators in delivering the Equipment to the Site and collecting it and returning it to Reactive Generators’ holding yard.

7.          PAYMENT TERMS

7.1          The terms of payment are strictly [30DAYS ] from the date of the invoice (or such other period as nominated by Reactive Generators in writing). Reactive Generators may, at any time, vary the terms of trade in its absolute and unfettered discretion.

7.2          Should the Hirer not pay the Hire Fees in accordance with the credit terms agreed in writing with Reactive Generators from time to time, Reactive Generators is authorised and entitled to:

(a)           charge any credit card given by the Hirer for any Hire Fees or any other charges or expenses recoverable under this Agreement (including legal costs incurred by Reactive Generators); and

(b)           charge an administration fee of 10 percent (10%) of the amount of any invoice payable which is outstanding for more than 14 days after the due date.

8.         HIRE PERIODS

8.1          The Hirer shall have the use of the Equipment for the Hire Period.

8.2          The Hire Period shall:

(a)           commence when the Equipment is collected from Reactive Generators depot; and

(b)           end when the Equipment is returned to Reactive Generators depot.

8.3          The Actual Hire Period shall end at the time:

(a)           mentioned in clause 8.2(b) herein; or 

(b)           Replacement Equipment is in the possession of Reactive Generators and it is available for hire. This clause operates in the event that the Equipment is lost or stolen; or

(c)           the Equipment has been repaired and is available for hire (in Reactive Generator’s sole direction). This clause operates in the event that the Equipment is damaged whilst on hire to the Hirer.

8.4          For the avoidance of doubt, the Hirer will be liable to pay Hire Fees for the Hire Periods above irrespective of the time Equipment is used. The Hirer may not set off, deduct or otherwise withhold payment from Reactive Generators on account of downtime, inclement weather or lack of use of the Equipment during the Hire Period.

9.         TITLE TO EQUIPMENT

9.1          Title to the Equipment remains vested in Reactive Generators at all times and will not pass to the Hirer or any third party at any time.

9.2          The Hirer must not at any time pass itself off as the owner of the Equipment or otherwise part with possession of the Equipment during the period of the hire.

9.3          The Hirer must only use the Equipment for the purposes disclosed to Reactive Generators in orders placed with it from time to time.

9.4          The Hirer agrees that Reactive Generators has the right, with or without prior notice to the Hirer, to enter upon the Site to inspect, service, repair or replace the Equipment. Whilst not obliged to do so, Reactive Generators will endeavour to provide 48 hours notice of its intention to inspect or service the Equipment. The Hirer acknowledges and agrees that Reactive Generators is not liable for loss or damages caused by, or arising from, the downtime during the repair or service. 

9.5          Where Reactive Generators exercises its right to enter the Site, that entry will not give rise to any action for trespass or similar action on the part of the Hirer against Reactive Generators, its employees, servants or agents.

9.6          The Hirer must not part with possession of, sell, sub lease, transfer, dispose of, mortgage, charge or otherwise encumber the Equipment in any way.

10.       CANCELLATION

10.1       Any cancellation by the Hirer must be:

(a)           In writing; and 

(b)           communicated at least 24 hours prior to the Equipment leaving the holding yard of Reactive Generators.

10.2       Where the Hirer fails to comply with the requirements in clause 10.1, the Hirer will be liable to pay to Reactive Generators, Hire Fees for the Minimum Hire Period.

11.      USE OF THE EQUIPMENT 

11.1       Prior to the hire of the Equipment, the Hirer:

(a)           warrants that it has inspected the Equipment and is satisfied that it is in good working condition, subject to any notation in Schedule A; 

(b)           must consult with Reactive Generators to determine the condition and suitability of the Equipment for the purpose required. Should this process not be followed, the Hirer shall indemnify Reactive Generators from any additional cost, expenses or losses incurred; and

(c)           must, at its own costs obtain all necessary permits and/or plans and pay all fees payable to any local or government authority in relation to the hire. 

11.2       During the Hire Period the Hirer undertakes that it will:

(a)           use and operate the Equipment only as instructed by Reactive Generators, in compliance with all applicable laws, the Equipment’s instruction manuals, best practice and any direction given by Reactive Generators.  The Hirer indemnifies Reactive Generators and will keep Reactive Generators indemnified from and against all demands, claims, proceedings, penalties, losses, damages and expenses (including legal costs on an indemnity basis) arising from any loss, damage or harm caused by the use of the Equipment;

(b)           be responsible for, and indemnify Reactive Generators against, the loss of or any damage to the Equipment;

(c)           indemnify Reactive Generators and keep Reactive Generators indemnified from and against all demands, claims, proceedings, loss, damages and expenses (including legal costs on a full indemnity basis) in respect of any injury to or the death of any person or loss or damage to property (including consequential loss) arising out of the delivery, servicing, storage, possession or use of the Equipment during the period of hire;

(d)           indemnify Reactive Generators and keep Reactive Generators indemnified from and against all demands, claims, proceedings, loss, damages and expenses (including legal costs on a full indemnity basis) in respect of any injury to or the death of any person or loss or damage (including consequential loss) to property arising out of the breakdown, failure or fault of the Equipment. The Hirer uses the Equipment at its own risk; 

(e)           not alter, make any additions to, deface or erase any identifying mark, plate or number on or in the Equipment or in any other manner interfere with the Equipment;

(f)            be liable for the costs of repairing the Equipment to the extent it is damaged in any way during the Hire, subject to Clause 27 herein;

(g)           comply with all workplace health and safety laws and requirements regarding the presence and operation of the Equipment at the Site including without limitation, following the directions of the person in charge of work health and safety on the Site and keeping all persons including the Hirer a safe distance from the Equipment whilst in operation;

(h)           comply with all other laws and regulations regarding the presence and operation of the Equipment on Site;

(i)             not repair or attempt to repair or cause any repair to be made to the Equipment without the prior consent of Reactive Generators;

(j)             ensure the Operator of the Equipment is suitably qualified, experienced, licensed to operate the Equipment at all times;

(k)           take all reasonable precautions to prevent injury or death to persons and damage or destruction to property in the course of operating the Equipment;

(l)             keep the Equipment in a clean and tidy state; and

(m)         keep the Equipment in a securely locked compound when not in use to prevent loss or damage to the Equipment by theft or damage caused by vandalism, fire, natural event (such as flood, gusts or storm) or accident. 

12.       INSURANCE

12.1       The Hirer will insure the Equipment against physical loss or damage including, but not limited to, accident, fire, theft and all other usual risks and will effect adequate Public Liability Insurance covering any loss, damage or injury to person or property arising out of the use of the Equipment.  Further, the Hirer will not use nor permit the Equipment to be used in any way that would permit an insurer to decline any claim. The Hirer must provide Reactive Generators with copies of insurance covering Public Liability, Third Party Liability, Plant Equipment and Motor Vehicle Liability prior to delivery of the Equipment. 

12.2       Subject to clause 27 and in the event of loss or damage to the Equipment, the Hirer will also be responsible to pay Reactive Generators for lost hire revenue (at the daily rate plus Surcharge) whilst repairs are carried out and until the Equipment is returned to Reactive Generators in the same rentable condition as when it was delivered. 

13.      DRY HIRE RESPONSIBILITIES

13.1       The Hirer must, in addition to any other obligation or responsibility:

(a)           not allow any person other than the Operator noted in Item 4 of the Reference Schedule to operate the Equipment without prior written approval of Reactive Generators;

(b)           ensure that only duly qualified and licensed persons operate the Equipment in accordance with all applicable laws, the Equipment’s instruction manuals, best practice and any direction given by Reactive Generators;

(c)           comply with all workplace health and safety laws and requirements regarding the presence and operation of the Equipment including without limitation keeping all persons including the Hirer a safe distance from the Equipment whilst in operation;

(d)           notify Reactive Generators immediately by telephone of any breakdown or the unsatisfactory working of any part of the Equipment;

(e)           be responsible for and report immediately in writing any loss or damage to the Equipment whether caused by any conduct of the Hirer or any persons under its control for any reason whatsoever or by any other person.

14.      DEFECTS/RETURNS

14.1       Upon receipt of the Equipment the Hirer is responsible for inspecting the Equipment and satisfying itself that it is in good order and condition.

14.2       The Hirer must advise Reactive Generators of any defect with the Equipment within 2 hours from the time of delivery. Should the Hirer fail to do so within two hours the Equipment is deemed to be in good working order and condition.

14.3       Provided the Hirer has compiled with clause 14.2, Reactive Generators will arrange either a credit for the Hirer, or alternatively, replace the Equipment at no additional cost to the Hirer.

15.      SECURITY/CHARGE

15.1       The Hirer hereby charges and mortgages in favour of Reactive Generators all their estate and interest in any land and in any other assets, whether tangible or intangible, freehold or leasehold, in which it now has any legal or beneficial interest or in which it later acquires any such interest, with payment of all monies owed by the Hirer under this Agreement and the Hirer consents to the lodging by Reactive Generators of a caveat or caveats which note its interest in or over any such land or caveatable property. If the Hirer is entering into this agreement in its capacity as trustee of a trust then the Hirer charges its property in its personal capacity and all trust property of the trust with payment of all monies owing to Reactive Generators.

15.2       The Hirer appoints, as its duly constituted attorney, Reactive Generators’ company director from time to time to execute, in the Hirer’s name, any real property mortgage, bill of sale or consent to any caveat which Reactive Generators may choose to lodge, against any real property that the Hirer may own so as to secure the Hirer’s obligations under this Agreement.

16.      COSTS

16.1       The Hirer will pay all of Reactive Generators’ legal costs, expenses and disbursements (on a full indemnity basis) incurred in:

(a)           obtaining advice about Reactive Generators’ rights under this Agreement; and

(b)           pursuing any recovery action/or any other claim or remedy, against the Hirer, including collection costs, debt recovery fees, commission and legal costs on a full indemnity basis. Such costs, disbursements and commission will be due and payable by the Hirer to Reactive Generators irrespective of whether pursuit of the recovery action, claim or remedy is successful.

16.2       Subject to clauses 16.3 and 16.4, payments by, or on behalf of, the Hirer will be applied by Reactive Generators as follows:

(a)           firstly, in payment of any collection costs or expenses and legal costs (on a full indemnity basis);

(b)           secondly, in payment of any interest payable pursuant to clause 19.1; and

(c)           thirdly, in payment of the outstanding debt(s).

16.3       Reactive Generators may apply and allocate payments made by, or on behalf of, the Hirer in a manner in Reactive Generators’ absolute and unfettered discretion, including so as to attribute the payments to satisfy obligations which are or are not secured by a purchase money security interest or otherwise.

16.4       To the extent that payments have been allocated to invoices by Reactive Generators in its business records, Reactive Generators may, in its sole and unfettered discretion, allocate and/or retrospectively reallocate those payments in any manner whatsoever at any time whatsoever.

16.5       Payments allocated (and/or reallocated) under clause 16.3 and 16.4 will be treated as though they were allocated or reallocated, respectively in the manner determined by Reactive Generators on the date of receipt of payment.

17.      TAXES AND DUTY

17.1       The Hirer must pay GST on any taxable supply made by Reactive Generators to the Hirer under this Agreement. The payment of GST is in addition to any other consideration payable by the Hirer for a taxable supply.

17.2       If as a result of:

(a)           any legislation becoming applicable to the subject matter of this Agreement; or

(b)           any changes in legislation or its interpretation by a court of competent jurisdiction or by any authority charged with its administration, Reactive Generators becomes liable to pay tax, duty, excise or levy in respect of the amounts received from the Hirer, then the Hirer must pay Reactive Generators these additional amounts on demand.

18.      DEFAULT

18.1       Each of the following is an event of default, namely:

(a)           the Hirer allowing any sum of money payable to Reactive Generators pursuant to this Agreement to remain unpaid for 7 days following the day upon which the amount became due and payable unless otherwise agreed in writing;

(b)           the Hirer failing to punctually perform or observe any of the conditions or obligations imposed upon it by this Agreement for a period of 7 days;

(c)           if Reactive Generators ascertains that the Hirer has made any false, inaccurate or misleading statement having a material effect in relation to the making of the Agreement or any related or collateral document;

(d)           if the Hirer is a company, upon the passing of a resolution for its winding up or the making of any order by any court for its winding up, the appointment of a controller, provisional liquidator, receiver, or receiver and manager, or voluntary administrator in respect of it or in respect of the whole or any part of Its assets;

(e)           the levying of execution by any court against Hirer and such execution not being satisfied within fourteen (14) days;

(f)            if the Hirer, or if the Hirer is a company, any director of the Hirer, being convicted upon indictment of a criminal offence or being sentenced to a term of imprisonment; or

(g)           if the Hirer breaches any one or more of the terms or conditions of this Agreement; and

(h)           if the Hirer fails to return the Equipment to Reactive Generators when it is due to be returned.

19.      INTEREST RATES

19.1       Any amount not paid in accordance with this Agreement, will be subject to interest calculated at the rate at a rate 18% per annum on the outstanding amount.

20.       SET-OFF

20.1       The Hirer agrees that until all money owed (or claim to be owed) by the Hirer to Reactive Generators is paid in full to the Reactive Generators, the Hirer may not raise any defence available to it or exercise any right of set-off or make a counterclaim or cross-demand against the Reactive Generators in reduction of the Hirer’s liability under this Agreement.   The right of the Hirer to raise any defence, set off, cross demand or counterclaim is wholly suspended until such time as the monies owed (or claim to be owed by the Hirer to the Reactive Generators) is paid in full to the Reactive Generators.

20.2       Any amount due to Reactive Generators from time to time may be deducted from any monies which may be or may become payable to the Hirer by Reactive Generators.

21.      LOSS, DAMAGE OR THEFT

21.1       Subject to clause 27, the Hirer acknowledges and agrees that:

(a)           it is solely responsible for the return of the Equipment to Reactive Generators; and

(b)           if the Equipment is damaged by the Hirer’s use of the Equipment, the Hirer will pay (and will indemnify Reactive Generators against) any costs (including the cost of replacement parts) required to repair the Equipment to the state it was in at the start of the Hire Period;

(c)           if the Equipment is damaged and is not capable of repair (in Reactive Generators’ sole discretion), the Hirer will pay the Replacement Cost of the Equipment to Reactive Generators in addition to the Hire Fees;

(d)           if the Equipment is lost or stolen, the Hirer will pay the Replacement Cost of the Equipment to Reactive Generators in addition to the Hire Fees.

21.2       Subject to clause 27, a certificate signed by any director of Reactive Generators is conclusive evidence of the Replacement Cost and the Hirer is immediately liable to pay the sum of the Replacement Cost contained in the certificate. 

21.3       Subject to clause 27, the parties agree that the sum payable under clauses 21.1 is in addition to the Hire Fees which the Hirer is liable to pay until Equipment is repaired or replaced (as the case may be) and made available for hire once again.

22.      INDEMNITY

22.1       The Hirer indemnifies Reactive Generators in respect of all loss, costs and disbursements incurred by it in pursuing any recovery action or any other claim or remedy, against the Hirer, including collection costs, debt recovery fees and legal costs on an indemnity basis. Such costs, disbursements will be due and payable by the Hirer to Reactive Generators irrespective of whether the recovery action is successful.

22.2       The Hirer agrees to indemnify Reactive Generators against any and all losses sustained by Reactive Generators as a result of any claim(s) or action(s) brought against Reactive Generators, by any third party, as the result of any event arising out of or in any way in connection with the use of the Equipment or this Agreement.

23.      LIABILITY

23.1       To the extent permitted by law warranties implied by statute, the common law, through custom or usage or otherwise in equity are hereby expressly excluded.

23.2       To the extent that warranties implied in the manner set out in clause 23.1 cannot be excluded by contract, Reactive Generators’ liability for those warranties is limited in the manner set out in clauses 23.3 to 23.6 of this Agreement.

23.3       In relation to the supply of Equipment, Reactive Generators’ liability is limited to:

(a)           replacing the Equipment with similar Equipment;

(b)           repairing the Equipment;

(c)           providing the cost of having the Equipment repaired.

23.4       In relation to the supply of services, Reactive Generators’ liability is limited to:

(a)           supplying the service again; or

(b)           providing for the cost of having the services supplied again at the amount of which is equal to or reasonably equivalent to the cost Reactive Generators would have incurred if supplying the services again.

23.5       Reactive Generators is not liable, whether claims are made or not, for loss of profit, economic or financial loss, damages, consequential loss, loss of opportunity or benefit, loss of a right or any other indirect loss suffered by the Hirer.

23.6       Reactive Generators is not liable for any loss caused to the Hirer by reason of inclement weather, strikes, lockouts, fires, riots, war, embargoes, civil commotions, acts of God or any other matter beyond the control of Reactive Generators.

24.      PERSONAL PROPERTY SECURITIES ACT

24.1       This clause applies to the extent that this Contract provides for a ‘security interest’ for the purposes of the Personal Property Securities Act 2009 (Cth) (“PPS Law”). References to PPS Law in this agreement include references to amended, replacement and successor provisions or legislation.

24.2       Reactive Generators may register its security interest. The Hirer must do anything (such as obtaining consents and signing documents) which Reactive Generators requires for the purposes of:

(a)           ensuring that Reactive Generators’ security interest is enforceable, perfected and otherwise effective under the PPS Law;

(b)           enabling Reactive Generators to gain first priority (or any other priority agreed to by Reactive Generators in writing) for its security interest; 

(c)           enabling Reactive Generators to exercise rights in connection with the security interest; and

24.3       The rights of Reactive Generators under this document are in addition to and not in substitution for Reactive Generators’ rights under other law (including the PPS Law) and Reactive Generators may choose whether to exercise rights under this document, and/or under such other law, as it sees fit. To avoid any doubt, Reactive Generators’ security interest will attach to proceeds.

24.4       The Hirer agrees that if the Hire Period and/or the Extended Hire Period is for a period of two years or longer, this Agreement constitutes a PPS Lease for the purposes of the PPSA.

24.5       If this Agreement is a PPS Lease, the Hirer agrees that:-

(a)           this Agreement grants Reactive Generator a PMSI in the Equipment, and any amounts or proceeds received from the use of the Equipment, to secure all amounts owed by the Hirer to Reactive in accordance with this Agreement;

(b)           Reactive Generator may register a PMSI over the Equipment on the PPSR;

(c)           it will do all things necessary and/or required by Reactive, and provide Reactive will all information required to register a financing statement or financing charge statement on the PPSR;  

(d)           it will not change its name, ABN and/or ACN in any form, or change any other details on the PPSR without first notifying Reactive; and 

(e)           it will, if requested by Reactive Generator, pay to Reactive the costs of registering and maintaining registration of Reactive Generators’ security interest and/or PMSI on the PPSR, within 14 days of the request.

24.6       Without affecting any other indemnity or rights under the Agreement, if the Hirer is in breach of any of its obligations under clause 24.2 of this Agreement, the Hirer agrees to indemnify Reactive against all loss and damages suffered by Reactive, including legal costs on an indemnity basis, as a result of the Hirer’s breach.

24.7       The Hirer waives the right to receive a copy of any notice, verification statement confirming registration of a financing statement of financing charge statement relating to the PMSI under this Agreement, unless the notice or statement is required by the PPSA and cannot be excluded. 

24.8       The Hirer and Owner must not disclose information of the kind referred to in section 275(1) of the PPSA, except where required due to the operation of section 275(7) of the PPSA, and the Hirer must not authorise the disclosure of such information.

24.9       The Hirer appoints Reactive as its attorney to sign in the Hirer’s name all documents which Reactive considers necessary to enforce or protect its right and power under this Agreement and to perfect, preserve, maintain, protect, better secure, or otherwise give full effect, under the PPSA and related regulations, to this Agreement and the PMSI created by the Agreement. 

24.10   If the Hirer becomes insolvent, without prejudice to any of Reactive Generators other rights under this Agreement:-

(a)           the Hirer’s right to use the Equipment in the ordinary course of business and in accordance with the PPSA and any of the Hirer’s other rights in respect of the Equipment immediately cease; and 

(b)           the Hirer must immediately return the Equipment to Reactive.

24.11   To the extent that Chapter 4 of PPSA applies to any security interest under this agreement, the following provisions of the PPS Law do not apply and, for the purposes of section 115 of the PPS Law are “contracted out” of this agreement in respect of all goods to which that section can be applied: section 95 (notice of removal of accession to the extent it requires Reactive Generators to give a notice to the Hirer); section 96 (retention of accession); section121(4) (notice to grantor); section125 (obligations to dispose of or retain collateral); section 130 (notice of disposal to the extent it requires Reactive Generators to give a notice to the Hirer); section 129(2) and 129(3); section 132(3)(d) (contents of statement of account after disposal); section 132(4) (statement of account if no disposal); section 135 (notice of retention); section 142 (redemption of collateral); and section 143 (re-instatement of security agreement).

24.12   The following provisions of the PPS Law: section 123 (seizing collateral); section 126 (apparent possession); section 128 (secured party may dispose of collateral); section 129 (disposal by purchase); and section 134(1) (retention of collateral) confer rights on Reactive Generators. The Hirer agrees that in addition to those rights, Reactive Generators shall, if there is default by Hirer, have the right to seize, purchase, take possession or apparent possession, retain, deal with or dispose of any goods, not only under those sections but also, as additional and independent rights, under this document and the Hirer agrees that Reactive Generators may do so in any manner it sees fit including (in respect of dealing and disposal) by private or public sale, lease or licence.

24.13   The Hirer waives its rights to receive a verification statement in relation to registration events in respect of commercial property under section 157 of the PPS Law.

24.14   Reactive Generators and the Hirer agree not to disclose information of the kind that can be requested under section 275(1) of the PPS Law. The Hirer must do everything necessary on its part to ensure that section 275(6)(a) of the PPS Law continues to apply. The agreement in this sub-clause is made solely for the purpose of allowing to Reactive Generators the benefit of section 275 (6)(a) and Reactive Generators shall not be liable to pay damages or any other compensation or be subject to injunction in respect of any actual or threatened breach of this sub-clause.

24.15   Hirer must not dispose or purport to dispose of, or create or purport to create or permit to be created any ‘security interest’ (as defined in PPS Law) in the Equipment other than with the express written consent of Reactive Generators.

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

25.      SERVICE

25.1       The Hirer agrees to accept service of any document required to be served, including any notice under the Agreement, the PPSA or court process, by prepaid post at any address nominated in this Agreement or any other address later notified to Reactive Generators by the Hirer or its authorised representative.

25.2       The parties hereto agree, pursuant to Rule 119 of the Uniform Civil Procedure Rules 1999 (Qld) that any originating process, claim or other process issued by Reactive Generators may be served on the Hirer by sending a copy of the signed and sealed copy of the process by express post, with postage prepaid to Hirer’s Business Address set forth on page 1 of this Agreement.

26.      PROVISION OF FURTHER INFORMATION

26.1       The Hirer undertakes to comply with any request by Reactive Generators to provide further information for the purpose of assessing the Hirer’s creditworthiness, including an updated credit application.

26.2       If the Hirer is a corporation (with the exception of a publicly listed company), it must advise Reactive Generators of any alteration to its corporate structure (for example a change in directors, shareholders, or constitution). In the case of a change of directors or shareholders Reactive Generators may ask for the new directors or shareholders to sign a guarantee and indemnity.

27.      DAMAGE WAIVER

27.1       This clause is designed to reduce the excess that is payable by the Hirer in the event that the Equipment hired by the Hirer is damaged in an Incident that is not one of the Prescribed Circumstances and the Hirer has purchased the Damage Waiver. The below clauses do not apply if the Hirer did not purchase the Damage Wavier.

27.2       The Damage Waiver Fee is not intended to replace insurance that the Hirer ought to obtain in accordance with clause 12 herein. 

27.3       The Damage Waiver Fee does not include the leads and accessories for the Equipment and the costs of recovering the Equipment which is payable by the Hirer to Reactive Generators.

27.4       The Damage Waiver Fee does not include any damage caused by the Hirer to any property owned by a third party as a result of or during the use of the Equipment. 

27.5       If the Hirer breaches any term of this Agreement, Reactive Generators reserves the right to treat this Agreement as if no Damage Waiver was purchased by the Hirer (even if it was purchased by the Hirer). 

27.6       The Damage Waiver Fee must be paid by the Hirer for each and every separate incident which may occur in any Hire Period to Reactive Generators and is calculated as follows: 

For example, if the Hirer purchases the Damage Waiver (for $35 per day or $175 per week) and an incident has occurred that is not one of the Prescribed Circumstances, the Hirer must pay an excess of $900 in order to obtain coverage for 25% of the replacement value or the actual repair cost, whichever is the lesser.

27.7       The Hirer’s liability for the physical loss and damage of the Equipment can be limited:

(a)           when the physical loss and damage of the Equipment occurred in an Incident that is not one of the Prescribed Circumstances; and 

(b)           to an amount that is equivalent to the Damage Waiver Excess Fee. 

27.8       The Damage Waiver Excess Fee is the lesser amount of the following calculations:

(a)           the actual repair cost of the Equipment; or

(b)           25% of the current replacement value of the Equipment as determined by Reactive Generators in their sole discretion. 

27.9       Reactive Generators reserve the right (in its sole discretion) to determine whether an Incident is one of the Prescribed Circumstances.

27.10   The Hirer acknowledges that any revision of Clause 27 will apply to this Agreement (as published on the Website) upon the acceptance of this Agreement and will supersede any prior version of Clause 27. The Hirer acknowledges that it is the Hirer’s responsibility to review the Website from time to time to ensure compliance to any revised Clause 27.

28.      CANCELLATION OF TERMS OF CREDIT

28.1       Reactive Generators reserves the right to withdraw credit at any time, whether the Hirer is in default under the terms of this Agreement or not.

28.2       Upon cancellation of credit, with or without notice, all liabilities incurred by the Hirer become immediately due and payable.

29.      VARIATION

29.1       Variations to this Agreement are not enforceable unless they are in writing and signed by the parties.

30.      ASSIGNMENT

30.1       This Agreement is personal to the Hirer and cannot be assigned by the Hirer in any circumstances.

31.      SEVERANCE

31.1       If any provision of this Agreement is not enforceable in accordance with its terms, other provisions which are self-sustaining are, and continue to be, enforceable in accordance with their terms.

31.2       If any part of this Agreement is invalid or unenforceable, that part is deleted and the remainder of the Agreement remains effective.

32.      JURISDICTION

32.1       The Hirer acknowledges and agrees that this Agreement will be governed by the laws of Queensland, and the laws of the Commonwealth of Australia which are in force in Queensland.

32.2       The Hirer acknowledges and agrees that any contract for the hire of Equipment or services between Reactive Generators and the Hirer is formed at the address of Reactive Generators.

32.3       The parties to this Agreement submit to the  exclusive jurisdiction of the courts of Queensland and the relevant federal courts and courts competent to hear appeals from those courts.

33.      ENTIRE AGREEMENT

33.1       This Agreement constitutes the entire Agreement between the parties relating in any way to its subject matter. All previous negotiations, understandings, representations, warranties, memoranda or commitments about the subject matter of this Agreement are merged in this Agreement and are of no further effect. No oral explanation of information provided by a party to another effects the meaning or interpretation of this Agreement or constitutes any collateral Agreement, warranty or understanding.

33.2       Nothing in this Agreement shall be read or applied so as to purport to exclude, restrict or modify or have the effect of excluding, restricting or modifying the Agreement in relation to the supply of any Equipment and/or services pursuant to this Agreement of all or any of the provisions of the Competition and Consumer Act 2010 or any relevant State or Federal Legislation which by law cannot be excluded, restricted or modified.

34.      PRIVACY ACT

34.1       The Hirer hereby authorises Reactive Generators to collect, retain, record, use and disclose commercial and/or consumer information about the Hirer, in accordance with the Privacy Act 1988, the Privacy Amendment Act 2012 and subsequent amendments, to persons and/or legal entities who are a solicitor or any other professional consultant engaged by Reactive Generators, a debt collector, credit reporting agency and/or any other individual or organisation which maintains credit references and/or default listings. 

34.2       Reactive Generators may give information about the Hirer to a credit reporting agency for the purposes of obtaining consumer and commercial credit reports and/or lodging consumer and commercial defaults on the Hirer’s credit file. This information may be given before, during or after the provision of credit to the Hirer and will be in accordance with the Privacy Act 1988, the Privacy Amendment Act 2012and any amendments.

35.      Authorised Person

35.1       If this Agreement is signed by an Authorised Person, the Authorised Person:

(a)           hereby represents and gives his/her undertaking that he/she has been duly and properly authorised by the directors of the Hirer to execute this Agreement;

(b)           acknowledges that Reactive Generators relies upon that representation and undertaking; and

(c)           acknowledges and agrees that the Authorised Person is personally liable for all amounts owing under this Agreement and the compliance with the terms of this Agreement if the Authorised Person was not duly and properly authorised to sign this Agreement.