By completing the Credit Application or ordering and/or hiring Equipment from RAM, the Applicant agrees that:
1.1. These Terms and Conditions of Trade, together with:
1.1.1. each Hire Schedule provided to the Customer by RAM, whether signed or not; and
1.1.2. any conditions specific to the type of Equipment (“Special Conditions”) the Customer has hired;
1.1.3. each Tax Invoice for the sale of Equipment provided to the Customer by RAM;
set out the terms of the agreement (“Agreement”) between the Customer and RAM. The provision or acceptance of a Hire Schedule or a Tax Invoice shall not form a separate agreement between the Customer and RAM, but shall constitute part of the Agreement. Any terms contained in any document supplied by the Customer, including any terms on the Customer’s purchase order, will not form part of the Agreement.
1.2. No additional terms and conditions (including any terms contained in any purchase order supplied by the Customer) apply except as varied in accordance with Clause 18.
1.3. RAM may at its sole discretion vary the Terms and Conditions of Trade in writing.
1.4. If there is more than one individual Customer, each is jointly and severally bound by the Terms and Conditions of Trade.
1.5. The invalidity or unenforceability of any provision of the Terms and Conditions of Trade shall not affect the validity or enforceability of the remaining provisions.
1.6. The Customer acknowledges that all hire and/or purchase arrangements are made relying solely upon the Customer’s own skill and judgment. Where RAM gives advice, recommendations, information, assistance and/or service to the Customer regarding the suitability or purpose of the Equipment, it is given in good faith and should not be relied upon by the Customer.
2. DEFINITIONS: In these Terms and Conditions of Trade, unless a contrary intention is stated:
2.1. “ACL” is an abbreviation of ‘Australian Consumer Law’ which is contained in Schedule 2 of the Competition and Consumer Act 2010 (Cth) as amended from time to time;
2.2. “COD” is an abbreviation of ‘cash on delivery’ and means the Customer is required to pay the Hire Charges and other fees, charges and costs that become due and payable under this Agreement in full (with no deduction or set-off), on or prior to, delivery or collection of the Equipment;
2.3. “Customer” means the company, partnership, sole trader or trustee who has lodged the ‘Credit Application’ and/or purchases, hires or orders Equipment from RAM, and it includes the Customer’s personal representatives, successors and permitted assigns;
2.4. “Credit Application” means the application for a Credit Account application completed by the Customer which includes the Terms and Conditions of Trade and Personal Guarantee, Indemnity and Charge;
2.5. “Credit Account” means any billing arrangement RAM has extended to the Customer upon RAM’s approval of the Credit Application;
2.6. “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 without limitation the use or protection of the environment;
2.7. “Expected Off Hire Date” means the date that the Customer expects the Hire Period to end. This date is set out in the Hire Schedule.
2.8. “Force Majeure Event” means any event or circumstance, regardless of whether it was foreseeable, that was not caused by RAM and which prevents RAM from complying with, or performing, any of its obligations under any contract with the Customer;
2.9. “Equipment” means any equipment, and any component part of or accessory thereto, supplied or hired by RAM to the Customer, or ordered by the Customer but not yet supplied;
2.10. “Hire Schedule” means the document provided by RAM to the Customer which includes details of the Equipment the Customer has hired, the Hire Charge, any other applicable charges, the Expected Off Hire Date and the address for delivery of the Equipment;
2.11. “Hire Period” means the period described in clause 4;
2.12. “LTD Waiver” has the meaning set out in clause 10;
2.13. “Off Hire Date” has the meaning set out in clause 5.7;
2.14. “PMSI” means a purchase money securities interest and has the meaning given in section 14 of the PPSA;
2.15. “PPSA” means the Personal Property Securities Act 2009 (Cth) as amended from time to time;
2.16. “PPSR” means the Personal Property Securities Register established under section 147 of the PPSA;
2.17. “Price” means the price payable for the hire of the Equipment (which includes the Hire Charges and Other Charges) and/or the price payable for the purchase of the Equipment and any other applicable charges;
2.18. “RAM” means RAM Equipment Pty Ltd ACN 007 939 988, its successors and permitted assigns; and
2.19. “Security Interest” has the meaning given in section 12 of the PPSA;
2.20. “Tax Invoice” means a tax invoice issued by RAM to the Customer;
2.21. “Verification Statement” has the meaning given in section 155 of the PPSA.
3.1. Delivery of the Equipment is taken to occur (“Delivery”) on the earlier of the following:
3.1.1. when the Customer takes possession of the Equipment; or
3.1.2. if the Customer requests delivery and collection of the Equipment, the time RAM delivers the Equipment to the address in the Hire Schedule or the Tax Invoice.
3.2. RAM shall not be liable for any loss or damage, including consequential loss or damage, arising from any delay in delivery or failure to deliver or supply Equipment, either whole or in part, due to any Force Majeure Event.
4. Hire Period (APPLIES TO HIRE ONLY)
4.1. The Hire Period commences (“On Hire Date”) upon Delivery.
4.2. The Hire Period is for finite term and ends when: the Equipment is back in RAM’s control or possession; the Customer notifies RAM that the Equipment is ready for collection; or, before the expiry of one year from the On Hire Date (“Maximum Hire Period”), whichever is earlier.
4.3. The Hire Period includes weekends and public holidays and for the avoidance of doubt, RAM does not consent to the Customer having uninterrupted possession of the Equipment for longer than 12 months from the On Hire Date, unless expressly agreed to by RAM in writing.
4.4. A minimum Hire Period may apply in respect of certain items of Equipment (“Minimum Hire Period”). RAM will advise the Customer at the time of hiring if a Minimum Hire Period applies. If the Customer returns the Equipment to RAM before the expiration of the Minimum Hire Period, the Customer is required to pay all Hire Charges in respect of the Minimum Hire Period.
5. Calculation of Hire Charges (APPLIES TO HIRE ONLY)
5.1. Hire Charges will commence from the On Hire Date and continue until the date the Customer notifies RAM that the Equipment will be available for collection (the Off Hire Date). The Equipment must be available for collection by no later than 7:00am ACST on the Off Hire Date, otherwise RAM reserves the right to charge additional Hire Charges. For the avoidance of doubt, the Expected Off Hire Date is not considered to be the Customer’s notice to RAM that the Equipment is available for collection.
5.2. The Customer will pay RAM for the hire of the Equipment at the Hire Charge set out in the Hire Schedule.
5.3. The Hire Schedule will specify the type of rate which will apply to the Customer and the method of calculation.
5.4. Hire Charges shall be calculated by the number of days recorded on the timing device whilst the Equipment is in the Customer’s possession and:
5.4.1. additional Hire Charges as set out in the Hire Schedule will apply if the Equipment is used for more than 8 hours per day or more than 40 hours per week (e.g. if the Equipment is used for 24 hours in one day, the Customer will be charged for 3 full days’ hire);
5.4.2. if the Equipment is returned prior to 7am on the Off Hire Date, Hire Charges for that day will still be charged (e.g. if Delivery occurs at 8am on Wednesday (the On Hire Date) and the Equipment is returned at 6pm on the Thursday of the same week (the day prior to the Off Hire Date), the Customer will be charged for 2 full days’ hire);
5.4.3. if the Equipment is returned after 7am on the Off Hire Date, Hire Charges for the following day will be charged (e.g. if Delivery occurs at 3pm on Monday and the Equipment is returned at 10am on the Wednesday of the same week (being the Off Hire Date), the Customer will be charged for 3 full days’ hire);
5.4.4. the date upon which the Customer advises of termination shall in all cases be treated as a full day’s hire; and
5.4.5. where the timing device is found not to be working either during the Hire Period or upon termination thereof, RAM will estimate the hours used and the onus is on the Customer to prove that the estimate is not correct.
5.5. The Customer will be charged for the hire of Equipment for the full Hire Period. For the avoidance of doubt, the Customer must continue to pay the Hire Charges and other charges after the Expected Off Hire Date if the Customer has not returned the Equipment to RAM by the Expected Off Hire Date. This obligation survives termination of the Agreement.
5.6. No allowance whatsoever can be made for time during which the Equipment is not in use for any reason (including any stand-down time, wet weather, public holidays, or rostered days off, etc.), unless RAM confirms special prior arrangements in writing.
5.7. In the event of Equipment breakdown, provided the Customer notifies RAM immediately, Hire Charges will not be payable during the time the Equipment is not working, unless the condition is due to negligence or misuse on the part of, or attributable to, the Customer.
6. Other Charges
6.1. In addition, the Customer agrees to pay:
6.1.1. for any consumables, fuel or trade materials RAM supplies to the Customer;
6.1.2. if the Customer requires RAM to deliver, collect or install the Equipment, the cost of delivery, collection or installation, as detailed in the Hire Schedule and/or Tax Invoice. Such charge may include a waiting fee (charged at cost) in addition to the delivery and collection fee if the nominated time for delivery or collection of the Equipment is delayed by the Customer;
6.1.3. if the Customer does not return the Equipment in clean and good working condition, charges for the cleaning and repair of the Equipment;
6.1.4. a charge for pumping out waste tanks or refilling water or fuel tanks;
6.1.5. any stamp duty or GST arising out of this Agreement;
6.1.6. any other applicable levies, fines, penalties and any other government charges arising out of the Customer’s use of the Equipment;
6.1.7. charges for payment made by credit card: VISA and Mastercard up to 1.50% of the Price, and American Express and Diners Club up to 2.50% of the Price;
6.1.8. if the Customer requests operational guidance or training on the use of the Equipment and RAM staff are available to provide this, the cost for the provision of these services at rates agreed with RAM;
6.1.9. charges in connection with the administration of the Customer’s Credit Account;
6.1.10. any reasonable charges incurred by RAM if RAM is unable to inspect or carry out maintenance on the Equipment during normal working hours;
6.1.11. the replacement value of any item of Equipment that is for whatever reason destroyed, written-off or not returned to RAM;
6.1.12. all costs of repairing any damage to the Equipment caused by:
184.108.40.206 any of the events referred to in clause 10.5 below;
220.127.116.11 the ordinary use of the Equipment up to an amount equal to 10% of the replacement value of the Equipment;
6.1.13. any insurance excess payable in relation to a claim made by either the Customer or RAM in relation to any damage caused by, or to, the Equipment whilst the same is hired by the Customer and irrespective of whether charged by the Customer’s insurers or RAM’s; and
6.1.14. if applicable, the LTD Waiver charge as determined and set out in clause 10.
7.1. Unless otherwise agreed in writing by RAM, the Customer is required to pay the Price, all Hire Charges and other fees, charges and costs that become due and payable under this Agreement, in full (with no deduction or set-off), within 30 days of the date of the relevant Tax Invoice. At RAM’ sole discretion and by agreement in writing, the Customer may be required to pay the amount:
7.1.1. on the date specified on any other Tax Invoice or other form as being the date for payment;
7.1.2. on COD terms;
7.1.3. before Delivery;
7.1.4. by way of instalments/progress payments in accordance with RAM’s payment schedule; or
7.1.5. within 7 days of the date of the Tax Invoice.
7.2. The Customer agrees that RAM may debit the Customer’s credit card, as provided in the Credit Application, in accordance with the payment terms between the Customer and RAM, to satisfy any part or all of the monies payable by the Customer to RAM under this Agreement.
7.3. At RAM’s sole discretion the Price for Equipment shall be either:
7.3.1. as indicated on any Hire Schedule provided by RAM to the Customer;
7.3.2. as indicated on any Tax Invoice provided by RAM to the Customer;
7.3.3. the price as at the date of Delivery according to RAM’s current price list; or
7.3.4. RAM’s quoted price.
7.4. RAM reserves the right to change the Price:
7.4.1. if a variation to the Equipment which is to supplied or hired is requested; or
7.4.2. in the event of increases to RAM in the cost of labour or materials, or fluctuations in currency exchange rates, which are beyond RAM’s control.
7.5. Any quotation given by RAM to the Customer is not an offer or obligation to hire or sell but an invitation to treat only. RAM will endeavour, but will not be obliged, to maintain the quotation price for a period of 30 days. However, RAM reserves the right to accept or reject any order. RAM is not obliged to hire or sell Equipment unless RAM accepts the Customer’s order in writing.
7.6. At RAM’s sole discretion, a non-refundable deposit may be required prior to any supply. RAM reserves the right not to provide the Equipment until such time as the required deposit is paid in full.
7.7. RAM reserves the right, at all times, to suspend or discontinue the supply or hire of Equipment to the Customer without being obliged to give any reason for its action.
7.8. Where the Customer is on COD terms, RAM reserves the right not to deliver or provide the Equipment until payment of the Price has been received in full.
7.9. Any forbearance by RAM in respect of the Customer’s failure to pay strictly in accordance with the Payment terms shall not constitute a waiver by RAM of its rights to payment nor will it be construed as an agreement to extend credit.
7.10. Where RAM has agreed to provide the Equipment to the Customer other than on COD terms:
7.10.1. RAM reserves the right to suspend the Credit Account immediately if any payment becomes overdue;
7.10.2. where applicable, RAM reserves the right to withdraw the credit facilities in the event of: any credit limit internally set by RAM, or trading terms, being exceeded; or in the event that RAM becomes aware of any factor, in its sole opinion, that materially affects the Customer’s credit worthiness; and
7.10.3. interest on overdue amounts may be charged at a rate of 2.50% per calendar month or part thereof, and the Customer shall be liable for, and expressly undertakes to pay, all such interest.
7.11. Any amounts received by RAM may be applied at RAM’s discretion: first against interest, fees, charges, collection expenses and legal expenses; and second, towards any amount that the Customer owes to RAM from time to time for the hire and/or purchase of Equipment.
7.12. Without prejudice to any other remedies RAM may have, if at any time the Customer is in breach of any obligation (including payment terms) in this Agreement, RAM may suspend or terminate the supply of Equipment to the Customer. RAM will not be liable to the Customer for any loss or damage the Customer suffers because RAM has exercised its rights under this clause.
7.13. Without prejudice to RAM’s other remedies at law RAM shall be entitled to cancel all or any part of any order of the Customer which remains unfulfilled and all amounts owing from the Customer to RAM shall, whether or not due for payment, become due immediately if:
7.13.1. the Customer becomes bankrupt or insolvent, executes a personal insolvency agreement, enters into liquidation, administration, receivership, enters into an arrangement with creditors or ceases to carry on business;
7.13.2. any money payable to RAM becomes overdue, or in RAM’s opinion the Customer will be unable to make a payment when it falls due.
8. Customer’s Obligations to RAM (APPLIES TO HIRE ONLY)
8.1. The Customer must:
8.1.1. notify RAM immediately by telephone of the full circumstances of any mechanical breakdown or accident. The Customer is not absolved from the requirements to safeguard the Equipment by giving such notification;
8.1.2. satisfy itself at Delivery that the Equipment is suitable for its purpose;
8.1.3. on termination of the Hire Period, deliver the Equipment complete with all parts and accessories, clean and in good order as delivered (fair wear and tear accepted) to RAM.
8.2. The Customer must:
8.2.1. operate the Equipment safely, strictly in accordance with all laws, only for its intended use and in accordance with the manufacturer’s instructions;
8.2.2. ensure persons operating or erecting the Equipment are suitably trained on its safe and proper use, qualified to use the Equipment and where necessary, hold a current licence to perform high risk work;
8.2.3. wear suitable clothing and protective equipment when operating the Equipment as required or recommended by RAM or the manufacturer;
8.2.4. comply with all occupational health and safety laws relating to the Equipment and its operation;
8.2.5. ensure that no persons operating the Equipment are under the influence of drugs or alcohol;
8.2.6. conduct a job safety analysis prior to using the Equipment;
8.2.7. ensure that no persons carry illegal, prohibited or dangerous substances in or on the Equipment; and
8.2.8. display all safety signs and instructions (as required by law), and ensure that all instructions and signs are observed by operators of the Equipment.
8.3. The Customer must:
8.3.1. keep the Equipment in good condition and in accordance with the manufacturer’s and RAM’s instructions (including, but not limited to, maintaining water, oil and fluid levels, cleaning, refuelling, lubricating and conduct routine servicing), at the Customer’s cost;
8.3.2. not in any way alter, modify, tamper with, damage or repair the Equipment without RAM’s prior written consent;
8.3.3. not deface, remove, vary or erase any identifying marks, plate, number, notices or safety information, on the Equipment; and
8.3.4. not remove fuel or oil tank caps, bund plugs or seals from the Equipment and ensure that they are in place when the Customer returns the Equipment;
8.3.5. arrange for the emptying of any waste tanks and water carts;
8.3.6. keep RAM advised of the specific location of the Equipment at all times during the Hire Period;
8.3.7. employ the Equipment solely in its own work and shall not permit the Equipment or any part thereof to be used by any other party for any other work;
8.3.8. not fix any of the Equipment in such a manner as to make it legally a fixture forming part of any freehold;
8.3.9. insure, or self-insure, RAM’s interest in the Equipment against physical loss or damage including, but not limited to, the perils of accident, fire, theft and burglary and all other usual risks and will effect adequate Public Liability Insurance covering any loss, damage or injury to property arising out of the Equipment;
8.3.10. not use the Equipment nor permit it to be used in such a manner as would permit an insurer to decline any claim.
8.4. At all times during the Hire Period, the Customer must store the Equipment safely and securely and within their possession or control.
8.5. The Customer consents to:
8.5.1. RAM monitoring the location and hours of the Equipment remotely using GPS technology;
8.5.2. RAM (or RAM’s agent) entering the premises owned, occupied or used by the Customer to inspect or maintain the Equipment from time to time during the Hire Period during normal working hours. If RAM cannot inspect or maintain the Equipment during normal working hours, then additional charges may apply. The Customer can also request to conduct a joint inspection of the Equipment with RAM at the end of the Hire Period;
8.5.3. RAM (or RAM’s agent) entering the premises owned, occupied or used by the Customer to take possession of the Equipment and RAM will not be liable for any damage thereby caused.
8.6. Whenever the Customer is moving the Equipment, the Customer must ensure the safe loading, securing and transporting of all Equipment in accordance with all laws and manufacturer’s guidelines. The Customer, or any agent or contractor engaged by the Customer, must observe any safety directions advised by RAM and/or the manufacturer of the Equipment to ensure its safe loading and handling.
8.7. The Customer warrants that the Customer will comply with all Environmental Laws from time to time and immediately rectify any breach of an Environmental Law caused by the use of the Equipment.
8.8. The Customer must use best endeavours to ensure that the Equipment is not contaminated with any hazardous substances (including asbestos). The Customer must advise RAM of any risks of hazardous substance contamination to the Equipment as soon as they become apparent. Where Equipment may have been subjected to contamination, the Customer must effectively decontaminate the Equipment, as well as provide RAM with written details of decontamination processes applied. If, in RAM’s opinion acting reasonably, the Equipment is not capable of being decontaminated, the Customer will be charged for the replacement cost of the Equipment.
8.9. In the event that the Equipment breaks down or becomes unsafe, the Customer must:
8.9.1. immediately stop using the Equipment and notify RAM;
8.9.2. take all steps necessary to prevent injury occurring to persons or property as a result of the condition of the Equipment;
8.9.3. take all steps necessary to prevent any further damage to the Equipment; and
8.9.4. not repair or attempt to repair the Equipment without the RAM’s prior written consent.
9. Equipment (APPLIES TO HIRE ONLY)
9.1. The Customer acknowledges that RAM owns the Equipment and in all circumstances RAM retains absolute title to the Equipment (even if the Customer goes into liquidation or becomes bankrupt during the Hire Period).
9.2. The Customer acknowledges and agrees to:
9.2.1. safe keep the Equipment and indemnify RAM for all loss, theft, or damage to the Equipment howsoever caused and without limiting the generality of the foregoing whether or not such loss, theft, or damage is attributable to any negligence, failure, or omission of the Customer; and
9.2.2. to keep RAM indemnified against all liability in respect of all actions, proceedings, claims, damages, costs and expenses in respect of any injury to persons, damage to property, or otherwise arising out of the use of the Equipment during the Hire Period and whether or not arising from any negligence, failure or omission of the Customer or any other persons.
9.3. The Customer’s rights to use the Equipment are as a bailee only.
9.4. Except in the circumstances set out in clause 15, the Customer is not entitled to 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.
9.5. In no circumstances will the Equipment be deemed to be a fixture.
9.6. The Customer is responsible for any loss, theft or damage to the Equipment from any and every event whatsoever and howsoever and by whosoever caused during the Hire Period except where any such loss, theft or damage was caused by RAM’s actions.
9.7. The Customer must return the Equipment to RAM in the same clean condition and good working order it was in when hired, ordinary fear wear and tear excluded. If the Customer does not return the Equipment in such condition, RAM will charge the Customer a cleaning cost in accordance with clause 6.1.3 above.
9.8. Unless otherwise agreed in writing with RAM, it is the Customer’s responsibility to return the Equipment to RAM during normal business hours.
9.9. If the Customer is in breach of this Agreement or if the Agreement or a Hire Period has been terminated, RAM may, at the Customer’s cost, take all steps necessary (including legal action) to recover the Equipment, including entering the Customer’s premises to do so and the Customer expressly consents to RAM entering the Customer’s premises for the purposes of recovering the Equipment.