Welcome to The Fireside Company!
These Hire Terms, together with any Hire Form (defined in clause 1(a)), set out the agreement (this Agreement) under the terms of which you or the company which you represent (the Customer, you) will rent the Equipment and/or receive the Services from The Fireside Company Pty Ltd ABN 66 648 334 678 (The Fireside Company, we, us, our).
This Agreement will commence on the Start Date and continue until the Equipment has been returned in accordance with this Agreement and the referable Fees have been paid, plus any additional period agreed by the Customer and The Fireside Company in writing.
By clicking the tick box below, paying any Fees or otherwise accepting the benefit of any Equipment or Services under this Agreement, you agree to be bound by these Terms which form a binding contractual agreement between you or the company you represent (the ‘Customer’) and The Fireside Company Pty Ltd ABN 66 648 334 678 (‘The Fireside Company’). The Customer represents and warrants that it has valid authority to enter into this Agreement on behalf of any entity that it may represent.
We may change these Terms at any time by notifying you, and your continued use of the Equipment and/or Services following such an update will represent an agreement by you to be bound by the HireTerms as amended.
In these Hire Terms, capitalised words and phrases have the meanings given to them where they are followed by bolded brackets, or as set out in the Definitions table at the end of these Hire Terms.
Please read these terms and conditions carefully before agreeing to proceed with hiring any Equipment or receiving any Services from us.
HIRE TERMS
1 HIRE FORM, THIS AGREEMENT
(a) These Hire Terms will apply to all the Customer’s dealings with The Fireside Company, including being incorporated in all online forms, agreements, quotations or orders under which The Fireside Company is to rent equipment and/or provide services to the Customer (each a ‘Hire Form’) together with any additional terms included in such a Hire Form (provided such additional terms are recorded in writing).
(b) The Customer will be taken to have accepted this Agreement if the Customer accepts a Hire Form, or if the Customer orders, accepts or pays for any equipment and/or services provided by The Fireside Company after receiving or becoming aware of this Agreement or these Hire Terms.
(c) In the event of any inconsistency between these Hire Terms and any Hire Form, the clauses of these Hire Terms will prevail to the extent of such inconsistency, except that any “Special Conditions” (being terms described as such in a Hire Form) will prevail over these Hire Terms to the extent of any inconsistency.
2 HIRE
The Fireside Company provides to the Customer and the Customer accepts from The Fireside Company the hire of the Equipment and/or Services upon and subject to the provisions of this Agreement.
3 PRE HIRE AND POST HIRE
The Customer warrants that:
(a) it will send a copy of their valid driver’s licence/s within 24 hours of confirming the booking to The Fireside Company’ contact email address set out in the Hire Form;
(b) have read and understood any instructional materials provided by The Fireside Company;
(c) will obtain up to date information from relevant authorities, (for example, by using the “Dial Before You Dig” service), about any infrastructure networks at the Job Site;
(d) ensure that any person collecting, returning or taking delivery of the Equipment on behalf of the Customer is authorised by the Customer to do so and the Customer will not allege that any such person is not so authorised; and
(e) it will tow the Equipment (including when it is collecting or returning the Equipment) using:
(i) a vehicle which meets the requirements set out on our Website; or
(ii) if no requirements are specified on our Website, an electric brake wired vehicle or a vehicle with a portable brake controller with a towing capacity of at least 3.5 tonnes,
(Appropriate Vehicle),
and indemnifies The Fireside Company against any loss or damage to the Equipment as a result of failing to use an Appropriate Vehicle.
4 SERVICES
(a) This clause applies if the Customer accepts any Services from The Fireside Company.
(b) The Customer warrants that it:
(i) has all necessary permits, approvals or authorities required for The Fireside Company and its Personnel to perform the Services;
(ii) will provide all relevant and necessary information to The Fireside Company related to the Job Site where the Equipment will be used prior to The Fireside Company entering the Job Site; and
(iii) will provide The Fireside Company with access to the Job Site, or required areas of the Job Site, to allow The Fireside Company to provide the Services.
(c) The Customer acknowledges and agrees that The Fireside Company:
(i) will provide the Services in accordance with the instructions provided by the Customer under clause 4(b);
(ii) is under no obligation to conduct any of its own due diligence with respect to the Job Site. However, from time to time, The Fireside Company may seek further information related to the Job Site, including, for example, by using the “Dial Before You Dig” service to obtain up-to-date information about any infrastructure networks at the Job Site; and
(iii) to the maximum extent permitted by law, will not be liable for any loss or damage suffered by the Customer in connection with the Customer’s failure to comply with this clause 4, including, without limitation, any damage to the Job Site such as damage to pipes, pathways, driveways and other concreted, paved or grassed areas.
(d) The Customer agrees to indemnify The Fireside Company for any claims, losses or damages suffered by The Fireside Company where the Customer fails to comply with this clause 4.
5 EQUIPMENT USE
5.1 USE
(a) The Customer must ensure that the Equipment is only used:
(i) on the Job Site;
(ii) in a proper and skilful manner, by Personnel who are appropriately trained, licensed, certified and competent;
(iii) in accordance with the Equipment manufacturer’s requirements, recommendations and instructional materials provided to the Customer; and
(iv) in accordance with all Laws, rules and regulations applicable to the Equipment and its use and/or relating to the Job Site.
(b) The Customer must not, and must not allow any Personnel or third party to:
(i) tow trailered Equipment:
(A) with an unsuitable or unroadworthy vehicle;
(B) with a vehicle that is not an Appropriate Vehicle; o
(C) on unsealed roads;
(ii) tow trailered Equipment, if the driver is not the holder of a valid driver licence;
(iii) use the Equipment for any dangerous or illegal purpose;
(iv) use or allow the Equipment to be used to carry passengers for payment of any kind and/or for racing;
(v) make any alterations to the Equipment, including by unauthorised repair or vandalism;
(vi) use or allow the Equipment to be used while the operator is under the influence of alcohol or drugs;
(vii) use the Equipment when it is damaged or unsafe;
(viii) affix or install any accessories, equipment or device on or to the Machine (other than the Included Attachments set out in the Hire Form) without The Fireside Company’ prior written consent;
(ix) sub hire the Equipment; and
(x) use the Equipment for the conveyance or towing of any load.
5.2 MAINTENANCE
(a) The Customer must, when the Equipment is unattended, always keep it locked and keep the keys under their control.
(b) The Customer is responsible for the performance and cost of daily maintenance and care of all Equipment in its possession, including:
(i) daily checking of all fluids (fuel, oil, water, battery levels etc);
(ii) general tightening of any loose nuts, bolts, belts or fittings;
(iii) the lubrication of all grease points every day the Machine has been used;
(iv) if applicable, the adjustment of the tracks tension weekly; and
(v) if applicable, the lubrication of the slew ring every [insert eg. fifty (50) hours].
(c) If the Customer does not comply with clause 5.2(b) above, and The Fireside Company replaces any of the pins, slew rings and/or tracks within a reasonable time following the return of the Machine, the Customer must promptly pay for such replacement, on demand from The Fireside Company.
(d) If instructed by The Fireside Company, the Customer must cover the Equipment with waterproof material in wet weather conditions.
5.3 OPERATOR
The Customer agrees that they are responsible for the acts and omissions of any other person they allow to use the Equipment, including their Personnel.
5.4 FUEL
The Customer must:
(a) ensure that the Machine has a full tank of fuel when it is returned to The Fireside Company, unless specified otherwise in the Hire Form;
(b) only fill the Equipment with fuel of a type that meets the Machine’s specifications; and
(c) promptly pay to The Fireside Company the costs of refuelling the Machine, at the Fuel Refill Rate for each litre of fuel required to refill the Machine’s tank, if the Customer fails to comply with clause 5.4(a).
5.5 PERSONAL PROPERTY
The Fireside Company is not liable to any person for any loss of, or damage to, personal property that is left in the Equipment after its return to The Fireside Company or stolen from the Equipment or otherwise lost during the Hire Term.
5.6 CLEANING
The Customer acknowledges that the Equipment is rented out in a clean condition. The Customer must return the Equipment in the same state of cleanliness (inside and out) it was in on the Start Date (Clean). If the Equipment is not Clean upon return, the Cleaning Fee as set out in the Hire Form, covering the total cost to The Fireside Company will apply.
6 DELIVERY AND RETURN
(a) Unless The Fireside Company is to collect the Equipment and subject to clause 13, the Customer must on the Return Date and by the Return Time specified in the Hire Form, return the Equipment to The Fireside Company at the Return Address in the same condition as it was in on the Start Date.
(b) If the Customer does not comply with clause 6(a), the Customer must pay the Late Charge for every additional 24 hour period after the Return Time on the Return Date for which the Customer retains possession of the Equipment. The Fireside Company reserves the right to deduct any Late Charges from the Security Bond in accordance with clause 10.6.
(c) If the Customer returns the Equipment before the Return Date, the Customer will be liable for the full Fees as if the Equipment was in its possession from the Start Date until the Return Date, notwithstanding any early return of the Equipment.
(d) If the Delivery Instructions state that The Fireside Company is to deliver or collect the Equipment:
(i) the Customer must pay to The Fireside Company the Delivery Charges as set out in the Hire Form;
(ii) The Fireside Company will use its best endeavours to have the Equipment delivered or collected on time however The Fireside Company is not responsible for any loss or damage suffered by the Customer in connection with:
(A) late or non-delivery or late collection. All timeframes for delivery and collection provided are estimates only; and
(B) The Fireside Company leaving the Equipment at the Pick Up Address; and
(iii) the Customer must ensure that it (or a representative) is available for delivery of the Equipment on the Start Date. The Fireside Company may require the Customer to sign for delivery or otherwise indicate acceptance of the Equipment. It is the Customer’s responsibility to make sure they are available for delivery or otherwise pick up the Equipment during the full duration of the Start Date. Any delay in delivery or accepting of the Equipment due to the Customer’s fault will not delay the Start Date. The Customer is responsible for ensuring the Pick Up/Return Address is correct.
7 FAULTY EQUIPMENT
(a) If the Equipment is faulty, breaks down or becomes unsafe to use during the Hire Term (Breakdown), the Customer must immediately:
(i) notify The Fireside Company;
(ii) stop using the Equipment;
(iii) take all steps necessary to prevent injuries from occurring to any person or property as a result of the condition of the Equipment;
(iv) take all steps necessary to prevent the Equipment from sustaining any further damage;
(v) not repair or attempt to repair the Equipment without The Fireside Company’ written consent; and
(vi) comply with The Fireside Company’ directions in relation to the return of the Equipment.
(b) Subject to clause 7(c), if, upon inspection of the Equipment, The Fireside Company determines that a Breakdown was:
(i) caused by a fault in the Equipment (not caused or contributed to by the Customer) (Equipment Fault) then The Fireside Company will either:
(A) provide the Customer with a pro-rata refund of any Fees paid for the period of the Hire Term during which the Breakdown persisted; or
(B) provide the Customer with replacement parts or repair the Equipment for the period of the Hire Term; or
(ii) not caused by an Equipment Fault, then the Customer will still be required to pay Fees in accordance with the Hire Form.
(c) Clause 7(b) does not limit:
(i) any of the Customer’s rights under the Competition and Consumer Act 2010 (Cth); or
(ii) any rights or remedies The Fireside Company may have access to in relation to a Breakdown, under this Agreement or otherwise.
8 REPLACEMENT, LOSS AND DAMAGE
8.1 LOSS, DAMAGE AND PERSONAL INJURY
The Customer will be fully liable to The Fireside Company for:
(a) any loss or damage to the Equipment during the Hire Term, or otherwise when the Equipment is in the Customer’s possession, and must give reasonable notice to The Fireside Company in writing of any such loss or damage; and
(b) all damage to the property of any person which is caused or contributed to by the Equipment during the Hire Term, or otherwise when the Equipment is in the Customer’s possession.
8.2 REPLACEMENT
If The Fireside Company notifies the Customer in writing, the Customer must replace all parts of the Equipment which during the Hire Term have become worn out, lost, stolen, damaged beyond repair or permanently rendered unfit for use (fair wear and tear excepted), provided that the Customer must not make any replacement, alteration or addition of any nature which may lead to a material reduction in the value of the Equipment.
9 INCIDENTS AND INSURANCE
9.1 INSURANCE
(a) The Customer acknowledges that The Fireside Company may, in its discretion, hold insurances in relation to the Equipment but such insurances may not cover the Customer or the Customer’s use of the Equipment and The Fireside Company will have no obligation or requirement to insure the Customer’s use of the Equipment under this Agreement. The Customer is strongly encouraged to take out adequate insurance to cover all potential liabilities that could arise from their use of the Equipment.
(b) If The Fireside Company notifies the Customer that it holds insurance in relation to the Equipment, the Customer must not do or permit anything to be done which may make The Fireside Company’s insurance invalid or able to be cancelled or which may increase The Fireside Company’ insurance premiums.
(c) The Fireside Company reserves the right to apply any insurance policy it does hold in respect of the Equipment during the Hire Term, to damage or loss caused or contributed to by the Customer, however The Fireside Company is under no obligation to. If The Fireside Company chooses to make a claim under an applicable insurance policy in accordance with this clause in respect of any damage or loss during the Hire Term, the Customer will be required to pay any excess payable by The Fireside Company in respect of such a claim.
9.2 INCIDENTS, LOSS AND DAMAGE
(a) Subject to any The Fireside Company insurance policy that covers the Customer, which The Fireside Company has indicated it will claim against to cover the Customer (or as otherwise agreed in writing), if the Equipment is lost, damaged, destroyed or stolen during the Hire Term, or otherwise while the Equipment is in the Customer’s possession, the Customer must compensate The Fireside Company for any costs of repair or replacement.
(b) If the Equipment is involved in an accident or claim, damaged, destroyed, stolen or if damage or loss is sustained to the property of any third party in connection with the Equipment during the Hire Term, or otherwise when the Equipment is in the Customer’s possession (Incident), the Customer:
(i) must promptly report the Incident to the local police (if required by Law);
(ii) must report the Incident to The Fireside Company in writing within one Business Day;
(iii) must, if such damage, destruction or theft is covered by and compensated to The Fireside Company under an insurance policy, pay the relevant excess amount to The Fireside Company, as well as any other reasonable costs that The Fireside Company incurs in relation to such damage, destruction or theft;
(iv) must not, without The Fireside Company’ prior written consent, make or give any offer, promise of payment, settlement, waiver, release or admission of liability in relation to the Incident, except as required by Law;
(v) must, if requested, permit The Fireside Company or its insurer bring, defend, enforce or settle any legal proceedings in the Customer’s name in relation to the Incident; and
(vi) must, if requested, provide to The Fireside Company, within a reasonable time, any statement, information or assistance which The Fireside Company or its insurer requests, including by attending a lawyer’s office or a court to give evidence.
10 PAYMENT
10.1 FEES
The Customer must pay the Fees to The Fireside Company in the amounts set out in the Hire Form or as otherwise agreed in writing.
10.2 INVOICES
The Fireside Company will issue a valid tax invoice to the Customer for payment of the Fees. Unless otherwise agreed in writing or in a Hire Form, the Customer must pay the Fees at the times specified, and in accordance with the remittance method set out, in that invoice.
10.3 LATE PAYMENT
If the Customer does not pay The Fireside Company the amounts due and payable under an invoice on or before its due date, without limiting any of The Fireside Company’ other rights under this Agreement, the Customer must pay The Fireside Company interest at the rate of 10% per annum on each amount outstanding, from the due date for payment to the date on which the payment is received by The Fireside Company.
10.4 GST
Unless otherwise indicated, amounts stated in a Hire Form do not include GST. In relation to any GST payable for a taxable supply by The Fireside Company, the Customer must promptly pay the GST subject to The Fireside Company providing a tax invoice.
10.5 CARD SURCHARGES
The Fireside Company reserves the right to charge credit card surcharges in the event payments are made using a credit, debit or charge card (including Visa, MasterCard or American Express).
10.6 SECURITY BOND
(a) To hire the Equipment, The Fireside Company requires the payment of a Security Bond as set out in the Hire Form or as otherwise specified by The Fireside Company, to cover any fees, damage or issues with the Equipment during the Hire Term (Security Bond).
(b) Upon return of the Equipment, The Fireside Company may claim the Security Bond against any amount owed by the Customer to The Fireside Company under this Agreement.
10.7 PAYMENTS OTHER THAN FEES
(a) Immediately on request by The Fireside Company, the Customer will pay:
(i) the price of any Equipment which is for whatever reason not returned to The Fireside Company;
(ii) the full cost of repairing any damage to the Equipment caused or contributed to by the Customer;
(iii) all costs incurred by The Fireside Company in delivering and recovering possession of the Equipment; and
(iv) any expenses and legal costs (including commission payable to a commercial agent) incurred by The Fireside Company in enforcing this Agreement due to the Customers default.
(b) Without limiting the ability of The Fireside Company to recover all amounts owing to it, the Customer authorises The Fireside Company to charge any amounts owing by the Customer to any credit card or account which the Customer provides in a Hire Form.
11 OWNERSHIP, POSSESSION AND TITLE
11.1 OWNERSHIP
(a) The Equipment is and will at all times remain the property of The Fireside Company, notwithstanding delivery of the Equipment to the Customer or the possession and use of the Equipment by the Customer.
(b) The Customer will not have any right, title or interest in or to the Equipment except as expressly set out in this Agreement.
11.2 POSSESSION
The Customer must not, without The Fireside Company’ prior written consent, part with possession of the Equipment during the Hire Term.
11.3 ENCUMBRANCES
The Customer must not allow any security interest, encumbrance, charge or lien of any kind to arise or remain in relation to the Equipment, including a repairer’s lien, except:
(a) if a repairer’s lien arises, the Customer must take all necessary steps to have it removed or satisfied, or, at The Fireside Company’ option, The Fireside Company may remove or satisfy the lien at the Customer’s cost; and
(b) a security interest, lien or charge that arises by Law in respect of unpaid rates, taxes, fees or duties of any kind, in which event the Customer must pay any money due so that the Equipment will be free of the lien or charge.
12 PERSONAL PROPERTY SECURITIES
The Customer grants a security interest in all of its present and after acquired property and in all of its present and future rights, title, estate and interest, whether legal and equitable, in relation to any personal property, including any debts owed to the Customer, in favour of The Fireside Company to secure the performance of its liabilities and obligations hereunder or on any account whatsoever.
If requested by The Fireside Company the Customer must immediately sign any documents, provide all necessary information and do anything else required by The Fireside Company to ensure that the security interest created in The Fireside Company’ favour is a perfected security interest.
The Customer must not grant any other security interest in favour of any party until The Fireside Company has perfected its security interest created under these Terms.
The Customer must not do or permit anything to be done that may result in the security interest granted to The Fireside Company ranking in priority behind any other security interest.
The Customer acknowledges that these Terms constitute a security agreement for purposes of the PPSA and the Customer will do all things necessary to enable a security interest to be registered under the PPSA, and will comply with all requirements of the PPSA.
To the fullest extent permitted by the PPSA, the Customer agrees to contract out of the application of the provisions listed in sections 115(1) and 115(7) and the sections listed therein shall not apply.
The Customer hereby waives any rights the Customer may otherwise have to:
(a) receive any notices or statements the Customer would otherwise be entitled to receive under sections of the PPSA including for the avoidance of any doubt the sections referred to in sections 115(1) and 115(7) of the PPSA;
(b) apply to a Court for an order concerning the removal of an accession under section 97 of the PPSA;
(c) object to a proposal of the Customer to purchase or retain any collateral under sections 130 and 135 of the PPSA; and
(d) receive a copy of a verification statement confirming registration of a financing statement, or a financing change statement, relating to any security interest created under this document.
For the purpose of this clause and other relevant clauses in this Agreement, the expressions “accession”, “collateral”, “financing statement”, “financing change statement”, “security agreement”, “security interest”, “perfected security interest” and “verification statement” have the meanings given to them under, or in the context of the PPSA.
13 EARLY RETURN
Notwithstanding any other clause in this Agreement, The Fireside Company may demand the early return of the Equipment to the Return Address, or retake possession of the Equipment, if The Fireside Company reasonably suspects that:
(a) damage to the Equipment or injury to any person in connection with the Equipment is reasonably likely; or
(b) the Equipment may be used for an unlawful purpose.
14 THIRD PARTY GOODS AND SERVICES
(a) If The Fireside Company is required to acquire goods or services supplied by a third party, the Customer may be subject to the terms and conditions of that third party (‘Third Party Terms’).
(b) The Customer agrees to any Third Party Terms applicable to any goods or services supplied by a third party that the Customer or The Fireside Company acquires as part of renting the Equipment and The Fireside Company will not be liable for any loss or damage suffered by the Customer in connection with such Third Party Terms.
15 SUBCONTRACTING
The Fireside Company may subcontract any aspect of providing the Services and the Customer hereby consents to such subcontracting.
16 PRIVACY
Both parties must deal with personal information (as defined in the Privacy Act 1988 (Cth)) it receives from the other party in accordance with the Privacy Act 1988 (Cth).
17 CONFIDENTIALITY
Except as contemplated by this agreement or a Hire Form, a party must not and must not permit any of its officers, employees, agents, contractors or related companies to use or to disclose to any person any Confidential Information disclosed to it by the other party without its prior written consent.
This clause does not apply to:
(a) information which is generally available to the public (other than as a result of a breach of these terms or another obligation of confidence);
(b) information required to be disclosed by any law; or
(c) information disclosed by The Fireside Company to its subcontractors, outsourced workers, employees, cloud storage providers or agents for the purposes of renting out the Equipment or performing its obligations under this agreement.
18 LIABILITY, WARRANTIES AND INDEMNITIES
18.1 LIABILITY
To the maximum extent permitted by Law, The Fireside Company’ liability for all claims in aggregate (whether those claims be for breach of contract, negligence or otherwise, and whether those claims are for economic loss, or for personal injury or other damage) arising under or in connection with this Agreement:
(a) is totally excluded, to the extent it concerns liability for indirect, special and consequential damages, and damages (whether direct or indirect) reflecting loss of revenue, loss of profits and loss of goodwill (except to the extent this liability cannot be excluded under the Competition and Consumer Act 2010 (Cth)); and
(b) is limited, insofar as it concerns other liability, to the total money paid to The Fireside Company under this Agreement as at the date the event giving rise to the relevant liability occurred (or, where there are multiple events, the date of the first such event).
18.2 WARRANTIES
(a) The Customer acknowledges that in deciding to rent the Equipment and/or acquire the Services and in entering into this Agreement the Customer has not relied on the skill or judgment of The Fireside Company and that the Customer has satisfied itself as to the condition and suitability and fitness for the Customer’s purpose of the Equipment and/or the Services.
(b) To the maximum extent permitted by applicable Law, all express or implied representations and warranties (whether relating to fitness for purpose or performance, or otherwise) not expressly stated in this Agreement are excluded.
(c) Nothing in this Agreement is intended to limit the operation of the Australian Consumer Law contained in the Competition and Consumer Act 2010 (Cth) (ACL). Under the ACL, the Customer may be entitled to certain remedies (like a refund, replacement or repair) if there is a failure with the goods or services provided.
18.3 INDEMNITIES
The Customer indemnifies The Fireside Company from and against all losses, claims, expenses, damages and liabilities (including any taxes, fees or costs) which arise out of:
(a) the casual maintenance, use, storage or operation of the Equipment during the Hire Term or otherwise when the Equipment is in the Customer’s possession;
(b) injuries to or deaths of persons and damage to property in connection with the Equipment during the Hire Term or otherwise when the Equipment is in the Customer’s possession;
(c) any breach of this Agreement by the Customer; or
(d) any negligent, fraudulent or criminal act or omission of the Customer or its Personnel.
19 TERMINATION
19.1 TERMINATION BY THE FIRESIDE COMPANY
The Fireside Company may terminate this Agreement in whole or in part immediately by written notice to the Customer, if the Customer is in breach of any term of this Agreement.
19.2 TERMINATION BY THE CUSTOMER
(a) The Customer may terminate this Agreement in whole or in part by written notice to The Fireside Company.
(b) If the notice under clause 19.2(a) is:
(i) 48 hours or more prior to the Start Date, The Fireside Company will provide the Customer with a full refund of any Fees paid;
(ii) less than 48 hours prior to the Start Date, either:
(A) the Customer will promptly pay the Cancellation Fee set out in the Hire Form (if any) and (if applicable) the Customer hereby authorises The Fireside Company to charge the Credit Card specified in the Hire Form; or
(B) The Fireside Company will provide the Customer with a full refund of the Fees paid, minus any Cancellation Fee set out in the Hire Form; or
(iii) after the Start Date, the Customer will not be entitled to any refund, unless the Equipment is not of an acceptable quality in accordance with the ACL.
19.3 EFFECT OF TERMINATION
Upon termination of this Agreement, the Customer must promptly:
(a) pay any payments required by The Fireside Company in respect of the period of the Hire Term prior to the date of termination; and
(b) subject to any contrary direction given by The Fireside Company, deliver the Equipment and any other goods included in a Hire Form to the Return Address.
19.4 SURVIVAL
Any clause that by its nature would reasonably be expected to be performed after the termination or expiry of this Agreement will survive and be enforceable after such termination or expiry.
20 DISPUTE RESOLUTION
(a) A party claiming that a dispute has arisen under or in connection with this Agreement must not commence court proceedings arising from or relating to the dispute, other than a claim for urgent interlocutory relief, unless that party has complied with the requirements of this clause.
(b) A party that requires resolution of a dispute which arises under or in connection with this Agreement must give the other party or parties to the dispute written notice containing reasonable details of the dispute and requiring its resolution under this clause.
(c) Once the dispute notice has been given, each party to the dispute must then use its best efforts to resolve the dispute in good faith. If the dispute is not resolved within a period of 14 days (or such other period as agreed by the parties in writing) after the date of the notice, any party to the dispute may take legal proceedings to resolve the dispute.
21 NOTICES
(a) A notice or other communication to a party under this Agreement must be:
(i) in writing and in English; and
(ii) delivered via email to the other party, to the email address specified in this Agreement, or if no email address is specified in this Agreement, then the email address most regularly used by the parties to correspond regarding the subject matter of this Agreement as at the date of this Agreement (Email Address). The parties may update their Email Address by notice to the other party.
(b) Unless the party sending the notice knows or reasonably ought to suspect that an email was not delivered to the other party’s Email Address, notice will be taken to be given:
(i) 24 hours after the email was sent, unless that falls on a Saturday, Sunday or a public holiday in the state or territory whose laws govern this Agreement, in which case the notice will be taken to be given on the next occurring Business Day in that state; or
(ii) when replied to by the other party,
whichever is earlier.
22 GENERAL
22.1 GOVERNING LAW AND JURISDICTION
This Agreement is governed by the law applying in Queensland, Australia. Each party irrevocably submits to the exclusive jurisdiction of the courts of Queensland, Australia and courts of appeal from them in respect of any proceedings arising out of or in connection with this Agreement. Each party irrevocably waives any objection to the venue of any legal process on the basis that the process has been brought in an inconvenient forum.
22.2 WAIVER
No party to this Agreement may rely on the words or conduct of any other party as a waiver of any right unless the waiver is in writing and signed by the party granting the waiver.
22.3 SEVERANCE
Any term of this Agreement which is wholly or partially void or unenforceable is severed to the extent that it is void or unenforceable. The validity and enforceability of the remainder of this Agreement is not limited or otherwise affected.
22.4 JOINT AND SEVERAL LIABILITY
An obligation or a liability assumed by, or a right conferred on, two or more persons binds or benefits them jointly and severally.
22.5 ASSIGNMENT
A party cannot assign, novate or otherwise transfer any of its rights or obligations under this Agreement without the prior written consent of the other party.
22.6 COSTS
Except as otherwise provided in this Agreement, each party must pay its own costs and expenses in connection with negotiating, preparing, executing and performing this Agreement.
22.7 ENTIRE AGREEMENT
This Agreement embodies the entire agreement between the parties and supersedes any prior negotiation, conduct, arrangement, understanding or agreement, express or implied, in relation to the subject matter of this Agreement.
22.8 INTERPRETATION
(a) (singular and plural) words in the singular includes the plural (and vice versa);
(b) (currency) a reference to $; or “dollar” is to Australian currency;
(c) (gender) words indicating a gender includes the corresponding words of any other gender;
(d) (defined terms) if a word or phrase is given a defined meaning, any other part of speech or grammatical form of that word or phrase has a corresponding meaning;
(e) (person) a reference to “person” or “you” includes an individual, the estate of an individual, a corporation, an authority, an association, consortium or joint venture (whether incorporated or unincorporated), a partnership, a trust and any other entity;
(f) (party) a reference to a party includes that party’s executors, administrators, successors and permitted assigns, including persons taking by way of novation and, in the case of a trustee, includes any substituted or additional trustee;
(g) (this Agreement) a reference to a party, clause, paragraph, schedule, exhibit, attachment or annexure is a reference to a party, clause, paragraph, schedule, exhibit, attachment or annexure to or of this Agreement, and a reference to this Agreement includes all schedules, exhibits, attachments and annexures to it;
(h) (document) a reference to a document (including this Agreement) is to that document as varied, novated, ratified or replaced from time to time;
(i) (headings) headings and words in bold type are for convenience only and do not affect interpretation;
(j) (includes) the word “includes” and similar words in any form is not a word of limitation; and
(k) (adverse interpretation) no provision of this Agreement will be interpreted adversely to a party because that party was responsible for the preparation of this Agreement or that provision.
23 DEFINITIONS
In addition to capitalised terms defined in the Hire Form above, capitalised terms used in this Agreement will have the following meanings:
| Term | Meaning |
| Business Days | means a day (other than a Saturday, Sunday or any other day which is a public holiday) on which banks are open for general business in Brisbane. |
| Confidential Information | means information of or provided by a party to the other party under or in connection with this Agreement or a Hire Form that is by its nature confidential information, is designated by the party as confidential, or the other party knows or ought to know is confidential, but does not include information which is or becomes, without a breach of confidentiality, public knowledge. |
| Customer | has the meaning set out in the Hire Form. |
| Equipment | means the Machine and the Included Attachments included in a Hire Form. |
| Fees | has the meaning set out in the Hire Form. |
| Hire Form | has the meaning set out in clause 1(a) of these Hire Terms. |
| Hire Term | means the period of Equipment Hire, from the Start Date set out in the Hire Form until the Equipment is returned to The Fireside Company. |
| Job Site | means the job site specified in the Hire Form. |
| Late Charge | means the late charge set out in the Hire Form. |
| Laws | mean any applicable statute, regulation, by-law, ordinance or subordinate legislation in force from time to time in the relevant jurisdiction(s) where the Equipment is provided and includes any industry codes of conduct. |
| Machine | has the meaning set out in the Hire Form. |
| Personnel | means, in respect of a party, that party’s officers, employees, contractors (including subcontractors) and agents. |
| PPSA | means the Personal Property Securities Act 2009 (Cth) and PPS Register means the register established and maintained under that Act. |
| Remote Site | has the meaning set out in a Hire Form. |
| Return Address | means the return address set out in the Hire Form. |
| Return Date | has the meaning set out in the Hire Form. |
| Start Date | has the meaning set out in the Hire Form. |
| Third Party Terms | has the meaning set out in clause 14. |
| Website | means the website set out at https://www.thefiresidecompany.net/ or any other site operated by us in connection with this agreement. |
