KINGSTON HEAVY HAULAGE TERMS & CONDITIONS OF CARTAGE
1. DEFINTIONS
In these terms & conditions:- 'CLIENT' means and includes the person, who engages the Carrier to carry the Goods; 'CARRIAGE' means and includes any carrying or other work performed by the Carrier or agreed to be performed by the Carrier in relation to the Goods; 'CARRIER' means where relevant any of Kingston Industries Pty Limited (ACN 002 894 439), Kingston Industries (WA) Pty Limited (AACN 059 941 393) trading as Kingston Heavy Haulage or otherwise its servants, agents, contractors and assigns; 'GST' means the goods and services tax imposed in Australia by the GST law; 'GOODS' means and goods of any type or description whatsoever whether originally contracted for, substituted for or added to the original contract.
2. CONSTRUCTION
In this document, unless the context otherwise requires;
a) Words importing: i) the singular include the plural and visa versa, ii) any gender includes the other gender;
b) An obligation of two (2) or more parties shall bind them jointly and severally;
c) If a word or phrase is defined, cognate words and phrases have corresponding definitions;
d) a reference to; i) a person includes a corporation, statutory body, the Crown and bodies politic, ii) a person includes the legal personal representatives, successors and assigns of that person, iii) a statute, ordinance, code or other law includes regulations and other statutory instruments under it and consolidations, amendments, re-enactments or replacements of any of them made by any legislative authority.
3. NEGATION OF LIABILTY AS A COMMON CARRIER
The Carrier is not a common carrier & does not undertake the obligations or liability of a common carrier. The Carrier reserves the right to refuse the Carriage or transport for any class of Goods at its discretion.
4. AGREEMENT OF PARTIES
4.1 It is agreed that the person delivering the Goods to the Carrier for the Carriage is authorized by the Client to sign a consignment note for the Client.
4.2 The Client warrants that in agreeing to the terms hereof, he, she or it is or has the authority of the person or persons owning or having any interest in the Goods or any part thereof.
4.3 Without prejudice to the generality of the foregoing, the Client undertakes to indemnify the Carrier in respect of any liability whatsoever in respect of the Goods to any person other than the Client who claims to have or has or may hereinafter have any interest in the Goods or any part thereof.
5. RIGHT TO SUBCONTRACT
5.1 The Carrier & any sub-contractor shall be entitled to subcontract on any terms the whole or any part of the Carriage.
5.2 The Client undertakes that no claim or allegation shall be made, whether by the Client or any other person who is or may hereafter be interested in the Goods, against any person (other than the Carrier) by whom (whether as a sub-contractor, principal, employer, servant, agent or otherwise) the Carriage of any part thereof is performed or undertaken which imposes or attempts to impose upon such person any liability whatsoever in connection with the Goods whether or not arising on part of such person, and if such claim or allegation should nevertheless be made, to indemnify the Carrier the person against whom such claim or allegation is made against the consequences thereof. Without prejudice to the foregoing & for the purpose of this clause the Carrier is or shall be deemed to be acting as agent or trustee on behalf of & for the benefit of all such persons & each of them & all such persons & each of them shall to this extent be or be deemed to be parties to this contract.
6. EXTENSION OF EXMPTIONS TO SUB-CONTRACTORS
Every exemption, limitation, condition liberty herein contained & every right, exemption from liability, defense & immunity of whatsoever nature applicable to the Carrier or to which the Carrier is entitled hereunder shall also be available & shall extend to protect:
a) all sub-contractors;
b) every servant or agent of the Carrier or of a sub-contractor;
c) every other person (other than the Carrier) by whom the Carriage or any part thereof is performed or undertaken;
d) all persons who are or might be vicariously liable for the acts or omissions of any person falling within a), b) or c) hereof & for the purposes of this clause the Carrier is or shall be deemed to be acting as agent or trustee on behalf of & for the benefit of all such persons & each of them and all such persons and each of them shall to this extent be or be deemed to be parties to this contract.
7. ENTIRE CONTRACT
The Goods shall be carried & the Carriage shall be performed subject only to these Terms and Conditions & any terms and conditions of trading incorporated in the Application for Commercial Credit attached to these Terms and Conditions, & any terms, conditions or warranties implied by statute which cannot be excluded.
8. LIABILITY OF CARRIER
8.1 The Carrier shall be liable to only for its willful neglect or default or default of that of its servants in respect of the Carriage of the Goods for physical loss of the Goods or damage to the Goods up to a limit of $200.00 whether or not there has been a declaration of the value of the Goods or any of them by the Client for the purposes of the Carriage or otherwise. The Carrier however will endeavour to affect insurance on behalf of the Client against greater loss or damage provided it receives instructions from the Client in writing & the premium is duly paid by the Client prior to the commencement of the Carriage.
8.2 In any event subject only to clause 8.1 and to clauses 23 & 24, the Goods are at risk of the Client & not the Carrier & the Carrier shall not be responsibility in tort or contract or otherwise for any loss or damage to or deterioration of the Goods or mis-delivery or failure or delay in delivery of the Goods either in transit or in storage for any reason whatsoever including without limiting the foregoing the negligence or breach of contract or willful act or default of Carrier or others & this clause shall apply to all such loss or damage to or deterioration of the goods as foresaid whether or not the same occurs in the performance by or on behalf of the Carrier of the contract and/or the Client or in events which could constitute a fundamental breach of the contract or a breach of a fundamental term thereof.
8.3 To the extent permitted by law, the Carrier is not liable to the Client for any indirect or consequent losses, loss of profits or use any rectification costs or any third party claims in connection with the Carriage.
9. INDEMNITY BY CLIENT
The Client indemnifies Carrier and shall keep it indemnified in respect of any liability to any person corporation or company for:
9.1 any damage whatsoever including injury, delay or loss of any nature arising out of or incidental to the Carriage or any services thereto whether due to misconduct or negligence on the part of the Carrier or not or whether or not the cause of the damage is known or unknown to the Carrier; or
9.2 any other cause whatsoever under or arising out of or in relation to or incidental to the Goods or the Carriage or any services ancillary thereto.
10. HANDING OF GOODS
If the Client expressly or impliedly instructs the Carrier to use or it is expressly or impliedly agreed that the Carrier will use a particular method of handling or storing the Goods or a particular method of Carriage whether by road, rail sea or air the Carrier will give priority to that method but if it cannot conveniently be adopted by the Carrier to handle or store or to carry or to have the Goods carried by another method or methods.
11. AUTHORISATION OF DEVIATION FROM USUAL ROUTE
Where Carrier considers the mode of Carriage or route quoted (if any) is not at the time the Goods are to carried the most practical or feasible route or mode of the Carriage to be used it reserves the right to vary same and charge any extra cost thereby incurred by the Client.
12. DELIVERY
12.1 The Carrier is authorsied to deliver the Goods at the address nominated to the Carrier by the Client for that purpose & without prejudice to the foregoing it is expressly agreed that the Carrier shall be conclusively presumed to have delivered the Goods in accordance with this contract if at that address he obtains from any person a receipt or signed delivery docket for the Goods.
12.2 If the nominated place of delivery should be unattended or if delivery cannot otherwise be effected by the Carrier may at its option deposit the Goods at that place (which shall be conclusively presumed to be due delivered thereunder) or store the Goods & if the Goods are stored by the Carrier the Client shall pay or indemnify the Carrier for all costs & expenses incurred in or about such storage. In the event that the Carrier shall be at liberty to redelivery them to the Client from the place of storage at the Clients expense.
13. CARRIERS CHARGES
13.1 All charges, rates & prices quoted are based upon rates of wages & salaries, prices of fuel and oil, and rates or road taxes & other charges prevailing at the date shown on price lists published by the Carrier from time to time, and in the event of any increases between that date & the date when the Carriage is commenced in the cost of any of those items so far as such items are incurred by the Carrier in the performance of the Carriage or involved therein then the charges, rates or prices quoted are to be increased by amounts equivalent to the full amounts of all such increases in all such items so far as the same are so incurred or involved. All charges, rates & prices payable by the Client to the Carrier under this Contract are exclusive of GST.
13.2 Where the Carriage involves the performance of two or more separate items of work then for the purposes of the preceding clause (13.1) the date when the Carriage commenced shall be deemed to be the respective dates on which the said separate items of work are commenced;
13.3 The Carriers charges shall be considered earned as soon as the Goods are loaded & dispatched & the Client will be & remain responsible to the Carrier for all its proper charges incurred for any reason. Labour & the use of mechanical equipment to load & unload the Goods shall be the responsibility & expense of the Client;
13.4 In addition to all other amounts payable pursuant to this contract & any other agreements contemplated by this contract, the Client shall pay to the Carrier, at the same time as the amounts to which this payment is referred is payable to the Client, all amounts for which the Client is liable, or shall become liable, in relation to the contract or any other agreements contemplated by this contract, on account of any State or Federal GST or similar tax, charge, assessments, duty or fees;
13.5 The Carrier reserves the right to rescind all discounted quoted rates and prices & recalculate outstanding charges, rates and prices at the current advertised schedule should accounts fail to be finalized within the Carriers trading terms from time to time;
13.6 Payment terms for Client who have current & approved credit facilities with the Carrier must be made within thirty (30) days of the date of the invoice. Otherwise all Clients who do not have current & approved credit must make payment to the Carrier immediately upon the conclusion of the Carriage, in any event immediately upon supply of a Tax Invoice to the Client requesting payment;
13.7 The Carrier reserves the right to impose a service fee on all amounts not paid pursuant to these terms & conditions ('Outstanding Charges') at the rate of 1.5% per month of the Outstanding Charge plus GST.
14. CARRIERS LIEN & WITHDRAWAL OF CARRIAGE
14.1 The Carrier shall have a lien on the Goods & any documents relating thereto & on any other Goods of the Client in the possession of the Carrier or any documents relating thereto for all sums payable by the client to the Carrier & any documents relating thereto for all sums payable by the Client to the Carrier & for that purpose shall have the right to sell any such Goods by public auction or private treaty without notice to the Client;
14.2 The Carrier reserves the right to suspend the Carriage or decline the Carriage should the Client be in breach of these Terms and Conditions of Cartage.
15. DANGEROUS GOODS
15.1 The Client shall not tender for Carriage any volatile spirits or explosive Goods which are or may become dangerous, inflammable or offensive (including radio-active material) or which are or may become liable to damage any property whatsoever without presenting a full description disclosing the nature of such Goods & in any event shall be liable for all loss & damage caused thereby & if in the opinion of the Carrier the Goods are or are liable to become of a dangerous, inflammable, explosive, volatile, offensive or damaging nature the same may at any time be destroyed, disposed of, abandoned or rendered harmless by the Carrier with out compensation to the Client & without prejudice to the Carriers right to any charges hereunder.
15.2 The Client warrants that it has complied with all laws & regulations relating to the nature, packaging, labeling or cartage of the Goods & that the Goods are placed in a manner adequate to withstand the ordinary risks of Carriage having regard to their nature & hereby indemnifies the Carrier for any liability whatsoever as a result of or arising out of the Clients failure to comply with each of these warranties.
16. VARIATION OF TERMS
16.1 It is agreed that no servant or agent of the Client or any other person has any power to waive or vary any of the terms hereof unless such waiver or variation is in writing by an executive officer of the Carrier.
16.2 These Terms and Conditions of Cartage may be varied at the discretion of the Carrier by the Carrier providing written notice of the variation & there after the Carrier shall rely on continuing placement of orders as acceptance by the Client of the variation.
17. SUIT TO BE BROUGHT WITHIN SIX MONTHS To the extent permitted by law any proceeding or suit commenced by the Client against the Carrier or its agents, servants or subcontractors must be commenced within six (6) months from the delivery of the Goods under the Carriage.
18. CONDITIONS TO HAVE FULL FORCE IN ALL CIRCUMSTANCES
All the rights, immunities & limitations of liability in these terms shall continue to have their full force & effect in all circumstances & notwithstanding any breach of the contract or any of the conditions hereof by the Carrier or any other person entitled to the benefit of such provisions
19. PROVISIONS SEVERABLE
It is hereby agreed that if any provision or part of any provision of the hire contract is unenforceable such unenforceability shall not affect any other part of such provision or any other provision hereof.
20. DECLARATION OF WEIGHT
Where the Client has declared the weight and/or dimensions of the Goods & the Carrier has relied upon such declared weight and/or dimensions in making its arrangements for transportation & the actual weight and/or dimensions of the Goods differs from the declared weight and/or dimensions then in every such case the Client shall be responsible for all extra cost & risk incurred by the Carrier resulting from its reliance as aforesaid upon the declared weight and/or dimensions.
21. OTHER DOCUMENTS
All Goods are carried subject & liable in every respect to the Bills of Lading issued by and/or conditions imposed by any steamship company, railway, port or harbour authority or other Carriers of the Goods & to the issue of permits or authorizations where required from Commonwealth and/or State Government authorities & the conditions & limitations stated in any such permits or authorizations.
22. QUEENSLAND CONTRACTS
In respect of contracts made in Queensland & in any other case where the carriage or any part thereof is subject to the Carriage of Goods by Land (Carriers Liability) Act 1967 of that Sate, these conditions shall continue in full force & effect except to the extent that they are or any part thereof is void by operation of that Act.
23. TRADE PRACTICES ACT
Notwithstanding anything herein contained the Carrier shall continue to be subject to any implied warranty provided by the Trade Practices Act 1974 (as amended) if & to the extent that the said Act is applicable to this contract & prevents the exclusion, restriction or modification of any such warranty & the liability of the services of Carriage again or for the cost of having the services of Carriage supplied again whichever the Client may select.
24. LAW OF CONTRACT AND JURISDICTION
These Terms and Conditions shall be governed & construed by the laws of the State of New South Wales where the Carrier is Kingston Industries Pty Ltd (ACN 002 894 439) and any proceeding in respect of any matter or thing with respect to the Client shall be instituted or carried on in the State of New South Wales only & in the event that the Carrier is Kingston Industries (WA) Pty Limited (ACN 059 941 392) these terms & conditions shall be governed & construed by the laws of the State Of Western Australia & any proceeding in respect of any matter or thing with respect to the Client shall be instituted or carried on in the State Of Western Australia only.
26. PRIVACY
26.1 The Client agrees to Kingston collecting, using & disclosing personal information about the Client for various purposes, including to: a) assess creditworthiness of the Client, its Directors & Shareholders; b) supply the goods and/or services to the Client & the management of the Clients account; c) communicate to the Client about the goods and/or services which Kingston or its partners or affiliates may provide to the Client; d) implement these conditions; and comply with relevant laws.
26.2 Please contact the Carriers Privacy Officer: a) for more information about the Carriers Privacy Policy; b) to access any personal information relating to the Client held by the Carrier; c) to correct or amend any personal information relating to the Client held by the Carrier; d) if you do not want the Carrier to contact you with information about other products or services of the Carrier.
26.3 The Carrier will handle the Clients personal information in accordance with relevant laws.
KINGSTON PLANT HIRE - TERMS & CONDITIONS OF HIRE
1. DEFINTIONS
In these terms & conditions:- 'CLIENT' means and includes the person who engages the Supplier for the Hire of the Plant, 'DAILY HIRE' means a Hire for an operating day of eight (8) hours or any part thereof, 'WEEKLY HIRE' means a Hire for an operating period of five (5) consecutive eight (8) hour days excluding Saturdays, Sundays, Rostered Days Off and Public Holidays, 'DRY HIRE' means hire of Plant without the inclusion of an Operator supplied by the Supplier, 'WET HIRE' means hire of Plant together with an Operator, 'HIRE' means and includes any engagement of Plant by the Client from the Supplier, 'OPERATOR' means the employee, agent or contractor of the Supplier who operates the Plant, 'PLANT' means machinery of any type or description supplied by the Supplier to the Client for Hire whether originally contracted for, substituted for or added to the original contract, 'SUPPLIER' means where relevant any of Kingston Industries Pty Limited (ACN 002 894 439), Kingston Industries (WA) Pty Limited (AACN 059 941 393) trading as Kingston Plant Hire, Kingston Excavations and Kingston Compaction Services or otherwise its servants, agents, contractors and assigns; 'GST' means the goods and services tax imposed in Australia by the GST Law; 'GST LAW' means a new tax system (Goods and Services Tax) Act 1999.
2. CONSTRUCTION
In this document, unless the context otherwise requires;
a) Words importing: i) the singular include the plural and visa versa, ii) any gender includes the other gender;
b) An obligation of two (2) or more parties shall bind them jointly and severally;
c) If a word or phrase is defined, cognate words and phrases have corresponding definitions;
d) a reference to; i) a person includes a corporation, statutory body, the Crown and bodies politic, ii) a person includes the legal personal representatives, successors and assigns of that person, iii) a statute, ordinance, code or other law includes regulations and other statutory instruments under it and consolidations, amendments, re-enactments or replacements of any of them made by any legislative authority.
3. ASSIGNMENT
3.1 This Hire Agreement is not transferable to any other party without the written consent of the Supplier whose consent shall be without prejudice to the Suppliers rights against the Client under this Agreement.
3.2 The Supplier shall not consent to an assignment of this Agreement without the Client obtaining the agreement by the transferee that it would be bound by the terms & conditions of this agreement.
4. AGREEMENT OF PARTIES
4.1 This Hire Agreement shall come into force upon an order being placed by telephone or otherwise by the Client with the Supplier a job number being raised by the Supplier. In respect to Wet Hire, the following provisions shall apply:
4.2 The Operator for the Plant and/or the Client or its agent from time to time is authorized by the Client to sign any delivery docket which shall have the effect of importing these terms & conditions of hire into a contract of hire between the Supplier & the Client;
4.3 The delivery docket signed by the Operator and/or the Client or its agent for the time being of the Plant evidencing hours of hire and any other allowances or costs shall be conclusive proof that work was performed for the time stated; that the extra costs or allowances shown therein had been incurred & the Client shall be liable for all charges on the basis of the facts recorded by the delivery docket.
5. SUPPLY OF PLANT
The Supplier reserves the right to accept or refuse any hire at its discretion without giving any reason for so doing. The Supplier further reserves the right to sub-contract, sub hire or cross-hire in the supply of Plant pursuant to this Agreement.
6. TERMINATION OF HIRE
6.1 In respect of Dry Hire, the Hire shall be terminated:- a) at the expiration of the hire period specified in writing between the client & the Supplier and/or notification by the Client that Plant had ceased working & an off hire number had been issued by the Supplier to the Client; b) by the Client giving two (2) days notice in writing to the Supplier of its intention to terminate this contract; 6.2 In respect of both Dry Hire & Wet Hire, the Hire shall be terminated: a) by the Supplier giving notice in writing to the Client at any time without giving any reason for doing so; b) forthwith by the Supplier should the Client become insolvent or bankrupt or exceed the credit terms of trading as published by the Supplier from time to time or in the case of the Client being a corporation should any order be made for the winding up of the client or should a Receiver or Manager be appointed in respect of any of the Client assets, c) forthwith by the supplier if the Client commits any breach of the Hire Contract; d) by the Client notifying the Supplier that the Plant has become mechanically unserviceable unless such unserviceability is due to the negligent operation or misuse of the Plant by the Client.
7. SUPPLIER CHARGES
7.1 In consideration of a Daily Hire the Client shall pay the Daily Hire rate as specified in current published rate schedules of the Supplier;
7.2 In consideration of a Weekly Hire the Client shall pay the Weekly Hire rate as specified in current published rate schedules of the Supplier;
7.3 For each additional hour or part thereof worked in excess of eight (8) hours on any day, there shall be payable an additional amount equivalent to one eighth (1/8th) of the daily hire rate for every hour or part thereof worked;
7.4 Any Period of hire less than a week as defined, will be charged at the daily hire rate;
7.5 A hire charge will be made at the daily hire rate when the Plant is used on a Saturday, Sunday, Rostered Day Off or Public Holiday. It is the responsibility of the Client to notify the Supplier if the Plant is not worked on a Saturday, Sunday or Public Holiday;
7.6 A hire charge shall commence from the time the Client takes delivery of the Plant and shall cease when the Plant is returned to the Supplier or when an Off Hire notification is given to the Supplier by the Client & an Off Hire pickup number is recorded by the Supplier;
7.7 In addition to all amounts payable pursuant to this contract by the Client to the Supplier the Client shall pay the Supplier, at the same time as any hire charge or other amount is payable to the Supplier, all amounts for which the Supplier is liable, or shall become liable, in relation to the Hire or any other agreements contemplated by this contract, on account of GST, Stamp Duty or other Tax, charge, assessment, Government charges, duty or fees. In respect of Wet Hire, the following provisions shall apply:
7.8 Hire charges shall be calculated and be payable by the Client to the Supplier at the hourly rates specified by the current rate schedules published by the Supplier from time to time whether or not notified to the Client in writing or as otherwise agreed;
7.9 Minimum hire times shall be applied to all hirings as specified in current published rate schedules or as otherwise agreed;
7.10 Floatage or establishment fees shall be borne by the Client at rates specified in the current published rate schedules or as otherwise agreed;
7.11 All additional costs including tip fees, site allowances, Government & statutory charges shall be charged to the Client over & above hire charges. A service fee is payable on tip fees;
7.12 Penalty rate loadings may apply for work performed on Saturdays, Sundays, Gazetted Public Holidays & Rostered Days Off at rates detailed in current published rate schedules;
7.13 The Client is responsible for notifying the Supplier of cancellations due to wet weather or non-requirement of Plant to site, the Client will be responsible for minimum hire as detailed in current published rate schedules;
7.14 The Supplier reserves the right to vary any or all rates from those shown in the current published rate schedule without notice;
7.15 Payment terms for Clients who have current & approved credit facilities with Kingston Industries Pty Limited ('Kingston') must be made within thirty (30) days of the date of the invoice. Otherwise all Clients who do not have current & approved credit facilities with Kingston must make payment on delivery of the Plant by the Supplier to the Client & in any other event immediately upon supply of a Tax Invoice to the Client requesting payment;
7.16 The Supplier reserves the right to impose a service fee on all amounts not paid pursuant to these terms & conditions (Outstanding Charges) at the rate of 1.5% per month of the Outstanding Charge plus GST.
8. LIABILITY OF SUPPLIER
8.1 To the extent permitted by law, all warranties or whether Statutory or otherwise & whether expressed or implied, oral or written as to the state, quality or fitness for purpose of the Plant, Hire or Wet Hire are hereby expressly excluded;
8.2 To the extend permitted by law, the Supplier is not liable to the client for: a) any loss, damage or expense sustained by the Client or any other party arising out of the Hire or Wet Hire, any breach by the Supplier of any contract incorporating these terms & conditions, or the negligence of the Supplier; or b) any indirect or consequential losses, loss of profits or use, any rectification costs or any third party claims in connection with the Hire or Wet Hire.
9. INDEMNITY BY CLIENT
The Client indemnifies the Supplier & shall keep it indemnified in respect of any liability to any person, for any damage whatsoever, including injury, delay or loss of any nature arising out of or incidental to the Hire of the Plant whether due to misconduct or negligence on the part of the Client, a third party, or the Supplier, whether or not the cause of the damage is known or unknown to the Supplier or from any other cause whatsoever under or arising out of or in relation to or incidental to the Hire of the Plant by the Supplier to the Client.
10. VARIATION OF TERMS
10.1 It is agreed that no servant or agent of the Client or any other person has any power to waive or vary any of the terms hereof unless such waiver or variation is in writing by an executive officer of the Supplier.
10.2 These Terms and Conditions of Hire may be varied at the discretion of the Supplier by the Supplier providing written notice of the variation & there after the Supplier shall rely on continuing placement of orders as acceptance by the Client of the variation.
11. CONDITIONS TO HAVE FULL FORCE IN ALL CIRCUMSTANCES
All the rights, immunities & limitations of liability in these terms shall continue to have their full force & effect in all circumstances & notwithstanding any breach of the contract or any of the conditions hereof by the Supplier or any other person entitled to the benefit of such provisions.
12. RISK
In respect of Dry Hire, the following provisions shall apply:
12.1 The risk of loss of or damage to the Plant shall be assumed by the Client from the moment of delivery of the Plant to the Client operator until the Plant is returned to or collected by the Supplier & without limiting the foregoing, the Client shall indemnify the Supplier & shall keep it indemnified in respect of all loss of or damage to the Plant during this said period.
12.2 In consideration of payment of a damage waiver fee as part of the Hire charges payable by the Client for the Dry Hire, the Supplier will put into effect insurance on behalf of the Client with respect to the risk assumed by the Client pursuant to clause 12.1, subject to the clauses 12.3, 12.4 & 12.5 below.
12.3 Notwithstanding the Supplier putting into place the insurance as provided in 12.2 above the Client shall be responsible to pay all repair & replacement costs arising from any damage to or theft of the Plant subject to the Hire up to a maximum of $4,000 subject to clauses 12.4 & 12.5 below.
12.4 In the case of theft of the Plant subject to the Hire in the event that the Plant was not stored in a safe & secure place and/or the Client is unable to produce a copy of a Police report submitted with respect to the theft of the Plant then the Client shall pay to the Supplier the full insured value of the stolen Plant notwithstanding the insurance put into effect pursuant to clause 12.2.
12.5 Notwithstanding the insurance put into effect on behalf of the Client pursuant to clause 12.2 the Client is to pay the full amount for loss & damage to the Plant subject of the Hire in event that it is caused by: a) failure to maintain, misuse, abuse or improper service of the plant; b) it is caused without explanation c) it arises from damage to tyres; d) it arises from breakage of glass; e) it arises if the Plant is not being operated by a suitably qualified trained, experienced & (if necessary) certified operator.
13. CLIENTS FURTHER OBLIGATIONS
In respect of Dry Hire, the client shall:
13.1 Supply a suitably qualified & competent operator for the Plant & meet all costs arising from the employment or engagement of the operator of the Plant unless otherwise agreed in writing between the parties.
13.2 Use the Plant in a skilful & proper manner & at its own expense service, clean & maintain the Plant in good & substantial repair & condition except for reasonable wear & tear and the Client shall provide at its expense all fuel, oil & grease necessary for operation, routine servicing & maintenance;
13.3 Clean the Plant thoroughly upon completion of the hire or be charged at the absolute discretion of the Supplier a cleaning fee at a rate to be nominated by the Supplier for any cleaning required to be performed by the Supplier or his representative.
13.4 Be responsible for the safe keeping of any tools & equipment supplied with the Plant & indemnify the Supplier & keep it indemnified in respect of any loss suffered by reason of the misuse or theft or any other cause in respect of such tools & equipment.
13.5 if required by the Supplier insure itself against liability under its indemnities referred to in Clause 9 and/or the risk assumed by it pursuant to Clause 12 in such sum & in such manner as the Supplier may direct.
14.BUILDING & CONSTRUCTION INDUSTRY SECURITY OF PAYMENTS ACT 2001
Charges for plant hire within the state of New South Wales are subject to the provisions of the Building & Construction Industry of Payments Act 2001.
15.PROVISIONS SAVEABLE
Its is hereby agreed that if any provision or part of any provision of the hire contract is unenforceable such unenforceability shall not affect any other part of such provision or any other provision hereof.
16. PRIVACY
16.1 The Client agrees to collecting, using & disclosing personal information about the Client for various purposes, including to: a) assess credit worthiness of the Client, its Directors & Shareholders; b) supply the goods and/or services to the Client & the management of the Client account; c) communicate to the Client about the goods and/or services which Kingston or its partners or affiliates may provide to the Client; d) implement these conditions; and e)comply with relevant laws. 16.2 Please contact the Suppliers Privacy Officer: a) for more information about the Suppliers Privacy Policy; b) to access any personal information relating to the Client held by the Supplier; c) to correct or amend any personal information relating to the Client held by the Supplier; d) if you do not want the Supplier to contact you with information about other products or services of the Supplier. 16.3 The Supplier will handle the Clients personal information in accordance with relevant laws.
17. LAW OF CONTRACT AND JURISDICTION
These Terms and Conditions shall be governed & construed by the laws of the State of New South Wales where the Supplier is Kingston Industries Pty Ltd (ACN 002 894 439) and any proceeding in respect of any matter or thing with respect to the Client shall be instituted or carried on in the State of New South Wales only & in the event that the Supplier is Kingston Industries (WA) Pty Limited (ACN 059 941 392) these terms & conditions shall be governed & construed by the laws of the State Of Western Australia & any proceeding in respect of any matter or thing with respect to the Client shall be instituted or carried on in the State Of Western Australia.
18. ENTIRE CONTRACT
The Dry Hire, Wet Hire & Plant shall be supplied subject only to these Terms and Conditions of Hire & the Terms and Conditions of Application for Commercial Credit attached to these Terms and Conditions, and any terms, conditions or warranties implied by statute which cannot be excluded.