Hire Contract Conditions

These hire contract conditions apply to the exclusion of any other conditions proposed by the customer, unless otherwise agreed by Mackay Refrigeration and the customer in writing. Mackay Refrigeration agrees to hire equipment to the customer on the terms set out in this document.

If the customer wishes to hire equipment, the customer must complete and sign (or otherwise accept in the manner required by Mackay Refrigeration) a hire schedule and such other documents as Mackay Refrigeration may require. Each hire schedule forms a part of this hire agreement, together with any credit application, guarantee, indemnity, and other contractual documents. The customer agrees to receive hire schedules and all associated documentation by electronic means. Mackay Refrigeration may, in its absolute discretion, decline to hire equipment to the customer at any time if it has reasonable cause to do so.

Amendment — These hire contract conditions may be changed by Mackay Refrigeration from time to time by giving notice to the customer. Notice is deemed given when Mackay Refrigeration: (a) sends notice to the customer at any address (including email) supplied by the customer; (b) publishes the amended terms on its website mackay-refrigeration.pages.dev; or (c) displays the amended terms at premises from which it conducts hire operations. Changes only apply to hire schedules entered into after the change occurs.

1. Interpretation

Commencement — The date when the Customer takes possession of the Equipment.

Equipment — Any kind of equipment, vehicles, or tools including but not limited to: cooling and/or heating; cleaning; entertainment; waste management; landscaping and gardening; plumbing; fencing and covering; lifting and access; air and air compression; pumping and fluid management; welding; compaction; concrete and masonry; flooring; earthmoving; floor care; generation and power distribution; ground equipment and shoring; ladders and scaffolding; propping; lighting; materials handling; offshore pumps; safety equipment; storage; site accommodation including portable buildings and portable toilets; traffic management including road barriers and signage; vehicles including trucks, vans, and trailers; and all tools, parts, and accessories for any of the foregoing.

Hire Charge — The amounts shown on the Hire Schedule payable by the Customer to hire the Equipment.

Hire Period — From Commencement until the end of the period shown on the Hire Schedule. The Hire Period may only be extended for one or more definite periods if the Customer requests it and Mackay Refrigeration agrees. Mackay Refrigeration may issue and require the Customer to sign an amended Hire Schedule for any extension.

Hire Schedule — A document which Mackay Refrigeration may require the Customer to sign, including particulars of the Equipment, the Hire Period, and such other information as Mackay Refrigeration may require.

Mackay Refrigeration — The company or companies listed on the Hire Schedule.

Kilometre Charge — The amount payable for kilometres that a Motor Vehicle, equipment, or trailer has, in the reasonable opinion of Mackay Refrigeration, travelled during the Hire Period.

Motor Vehicle — A truck or utility but not any other equipment.

Remote Area — Any location more than 50 kilometres from the Mackay Refrigeration depot from which the Equipment is hired.

2. Mackay Refrigeration Obligations

Mackay Refrigeration will:

• 2.1  — Allow the Customer to take and use the Equipment for the Hire Period;
• 2.2  — Provide the Equipment to the Customer clean and in good working order;
• 2.3  — Collect the Equipment within 5 days of being requested to do so by the Customer.

Note to Customer: You must return the Equipment at your expense when due back unless otherwise agreed by Mackay Refrigeration.

3. Obligations of the Customer

The Customer must:

• 3.1  — Deliver the Equipment to Mackay Refrigeration when it is due back;
• 3.2  — Return the Equipment clean and in good repair — a cleaning fee will be charged if it is not;
• 3.3  — Satisfy itself at Commencement that the Equipment is suitable for its purposes;
• 3.4  — Operate the Equipment safely, strictly in accordance with the law, only for its intended use, and in accordance with any manufacturer's instructions whether supplied by Mackay Refrigeration or posted on the Equipment;
• 3.5  — Indemnify Mackay Refrigeration for all injury and/or damage caused or contributed to by the Customer in relation to the Equipment and its operation, and hold adequate insurance to cover all resulting liabilities;
• 3.6  — Ensure that any person collecting or taking delivery of Equipment on behalf of the Customer is duly authorised to do so;
• 3.7  — Ensure that all persons operating or erecting the Equipment are suitably instructed in its safe and proper use and, where necessary, hold a current Certificate of Competency and/or are fully licensed;
• 3.8  — Conduct a thorough hazard and risk assessment before using the Equipment and comply with all applicable Occupational Health and Safety laws;
• 3.9  — Safely secure all items loaded in or on the Equipment and indemnify Mackay Refrigeration in respect of any injury and/or damage caused by items falling from the Equipment or any vehicle or trailer operated on behalf of the Customer;
• 3.10 — Operate the Equipment with an adequate motor vehicle and/or power source;
• 3.11 — Report and provide full details of any accident or damage to the Equipment to Mackay Refrigeration within 2 business days of the accident or damage occurring.

The Customer must not:

• 3.12 — Tamper with, damage, or repair the Equipment;
• 3.13 — Lose or part with possession of the Equipment;
• 3.14 — Rely upon any representation relating to the Equipment or its operation other than those contained in this Contract;
• 3.15 — Allow any person to drive a Motor Vehicle if the person: (a) does not hold a suitable licence to drive that class of Motor Vehicle; or (b) is affected by drugs and/or alcohol;
• 3.16 — Exceed the recommended or legal load and capacity limits of the Equipment;
• 3.17 — Use or carry any illegal, prohibited, or dangerous substance in or on the Equipment;
• 3.18 — Exceed the recommended or legal speed limit for the Equipment;
• 3.19 — Tow or move the Equipment without prior arrangement and written agreement from Mackay Refrigeration;
• 3.20 — Use any chemicals for cleaning.

4. Payments by the Customer

4.1 — On or before Commencement (or as otherwise specifically agreed with Mackay Refrigeration), the Customer will pay the Hire Charge.

4.2 — Immediately on request by Mackay Refrigeration, the Customer will pay:

• (a) The new list price of any Equipment which is, for whatever reason, not returned to Mackay Refrigeration. Note: subject to any express provision of this Contract to the contrary, the Customer is responsible for loss or theft of the Equipment.
• (b) All costs incurred in cleaning the Equipment;
• (c) The full cost of repairing any damage to the Equipment caused or contributed to by the Customer, unless expressly agreed otherwise;
• (d) Stamp duties, GST, any other taxes or duties, and all tolls, fines, penalties, levies, or charges payable in respect of this Contract or arising from the Customer's use of the Equipment;
• (e) All costs incurred by Mackay Refrigeration in delivering and recovering possession of the Equipment;
• (f) A late payment fee calculated daily at 3% per month on all amounts not paid on time;
• (g) The Kilometre Charge and any additional Hire Charges;
• (h) The cost of fuels and consumables provided by Mackay Refrigeration and not returned by the Customer;
• (i) Any expenses and legal costs (including commission payable to a commercial agent) incurred by Mackay Refrigeration in enforcing this Contract due to the Customer's default;
• (j) All costs of repairing or replacing tyres, including road service; and
• (k) If any damage and/or theft waiver applies, the amount for which the Customer is liable as set out in this Contract.

4.3 — The Customer authorises Mackay Refrigeration to charge any amounts owing by the Customer to any credit card or account details provided to Mackay Refrigeration.

4.4 — Mackay Refrigeration may tokenise the Customer's credit card or account details to facilitate credit card or online payments.

5. PPS Law

5.1 — This clause applies to the extent that this Contract provides for a 'security interest' for the purposes of the Personal Property Securities Act 2009 (Cth) ("PPS Law"). References to PPS Law include amended, replacement, and successor provisions or legislation.

5.2 — If Mackay Refrigeration does not have, at Commencement, a PPS Law registration ensuring a perfected first priority security interest in the Equipment, the Hire Period may not exceed: (a) 90 days for Equipment which may or must be described by serial number in a PPS Law registration; or (b) one year in any other case.

5.3 — Mackay Refrigeration may register its security interest. The Customer must do anything required for the purposes of: (a) ensuring that Mackay Refrigeration's security interest is enforceable, perfected, and effective under PPS Law; (b) enabling Mackay Refrigeration to gain first priority for its security interest; and (c) enabling Mackay Refrigeration to exercise rights in connection with the security interest.

5.4 — Mackay Refrigeration's rights under this document are in addition to, and not in substitution for, its rights under other law (including PPS Law). Mackay Refrigeration's security interest will attach to proceeds.

5.5 — To the extent that Chapter 4 of PPSA applies, the following provisions of the PPS Law are contracted out of this agreement: sections 95, 96, 121(4), 125, 129(2), 129(3), 130, 132(3)(d), 132(4), 135, 142, and 143.

5.6 — In addition to rights under sections 123, 126, 128, 129, and 134(1) of PPS Law, if there is a default by the Customer, Mackay Refrigeration shall have the right to seize, purchase, take possession, retain, deal with, or dispose of any goods by any means it sees fit, including by private or public sale, lease, or licence.

5.7 — The Customer waives its right to receive a verification statement under section 157 of PPS Law.

5.8 — Mackay Refrigeration and the Customer agree not to disclose information of the kind requestable under section 275(1) of PPS Law. The Customer must ensure section 275(6)(a) continues to apply.

5.9 — The Customer must not dispose of, or create or permit any security interest in, the Equipment without Mackay Refrigeration's prior written consent.

5.10 — The Customer must not sub-hire the Equipment to anyone else without Mackay Refrigeration's prior written consent. Any permitted sub-hire must be in writing in a form acceptable to Mackay Refrigeration and expressed to be subject to Mackay Refrigeration's rights under this agreement.

5.11 — The Customer must ensure Mackay Refrigeration is provided with up-to-date information about any sub-hire, including the identity of the sub-hirer, the state of accounts and payment, and the location and condition of the Equipment.

5.12 — The Customer must take all steps required to ensure any security interest arising under a sub-hire is enforceable and perfected under PPS Law, and to enable Mackay Refrigeration and the Customer to exercise their respective rights in connection with such interest.

5.13 — The Customer gives Mackay Refrigeration an irrevocable power of attorney to do anything Mackay Refrigeration considers the Customer should do under this agreement. Mackay Refrigeration may recover from the Customer the cost of doing anything under this clause, including registration fees.

6. Damage Waiver

6.1 — Damage Waiver is not insurance, but an agreement by Mackay Refrigeration to limit the Customer's liability for damage to the Equipment, in some circumstances only, to an amount called the Damage Waiver Excess.

6.2 — Damage Waiver applies to all hires at no additional fee. The Damage Waiver Excess is the actual recovery and repair cost of the Equipment, or 20% of the current replacement cost (as reasonably determined by Mackay Refrigeration using supplier's list prices), whichever is the lesser amount.

Damage Waiver does not apply and will not limit the Customer's liability in the following circumstances:

(a) Where the Equipment is lost or stolen;
(b) Where the operator is not suitably licensed;
(c) Where the operator is affected by drugs and/or alcohol;
(d) Where the Equipment has been wilfully damaged by the Customer or its employees or agents;
(e) Where damage is caused by collision with a bridge, carpark, awning, gutter, tree, or any other overhead structure due to insufficient clearance;
(f) Where damage is caused while the Equipment is being driven or towed on an unsealed or non-public road; or
(g) Where damage is caused in any way by overloading.

6.3 — The Customer may pay an additional Vehicle Waiver Plus Fee (excluding holders of 'P' plate licences) in relation to Motor Vehicle hires, which will: (a) reduce the Damage Waiver Excess; and (b) add a Theft Waiver component. Mackay Refrigeration will advise the fee, but the Customer may opt out.

6.4 — An Equipment Waiver Plus Fee applies to medium and large equipment hires (as determined by Mackay Refrigeration from time to time), which will: (a) reduce the Damage Waiver Excess; and (b) add a Theft Waiver component. Payment is compulsory unless Mackay Refrigeration agrees to accept a certificate of insurance provided by the Customer.

Theft Waiver does not apply and will not limit the Customer's liability for theft where:

(a) The Customer has failed to keep the Equipment in a securely locked compound, or has failed to properly secure or lock a Motor Vehicle or trailer; or
(b) The Customer has failed to submit a Police Report on the theft to Mackay Refrigeration within 7 days of the theft allegedly occurring.

In the event Theft Waiver applies, hire fees continue to accrue until the Police Report is provided to Mackay Refrigeration.

6.6 — Damage Waiver or Theft Waiver will not apply where Mackay Refrigeration determines that any of the applicable circumstances in clauses 6.2(a)–(g) or 6.5(a)–(b) have occurred, unless the Customer is able to establish otherwise to Mackay Refrigeration's reasonable satisfaction.

7. Exclusion of Warranties and Liabilities

7.1 — Where the Australian Consumer Law applies, the Customer has the benefit of guarantees which cannot be excluded.

7.2 — Where the Australian Consumer Law applies and the goods are not of a kind ordinarily acquired for personal, domestic, or household use, Mackay Refrigeration's liability is limited to replacement or repair of the goods, or the cost of having the goods repaired or replaced.

7.3 — To the extent that the Australian Consumer Law (or any other law which cannot be excluded) does not apply, Mackay Refrigeration makes no representations and gives no warranties other than those set out in these Hire Contract Conditions, and will not be liable for any damages, costs, or other liabilities whatsoever (including consequential loss) in relation to the hiring of the Equipment.

8. Remote Hire

Where the Equipment is at any time hired to be located in the Remote Area, the following additional conditions apply:

• (a) The Customer will pay Remote Area Charges for any delivery, servicing, repair, or other attendance by Mackay Refrigeration at the Remote Area. These are calculated on a per-kilometre rate for travel to and from the Remote Area, plus labour costs per staff member per hour (including travel time), plus direct costs such as airfares and accommodation;
• (b) Multiple items of Equipment hired by a Customer on the one site will only be charged for one call-out fee;
• (c) The Customer is responsible at its own cost for daily maintenance and care of all Equipment, including daily checking of all fluids (fuel, oil, water, battery levels) and general tightening of any loose nuts, bolts, belts, or fittings, and lubrication of all grease points.

9. Breach of Hire Contract by Customer

If the Customer breaches any clause of this Contract and does not remedy the breach within 7 days of notice, or becomes bankrupt, insolvent, or ceases business, then:

9.1 — Mackay Refrigeration shall be entitled to: (a) terminate this Contract; and/or (b) sue for recovery of all monies owing by the Customer; and/or (c) repossess the Equipment (and is authorised to enter any premises where the Equipment is located to do so). Any Damage and/or Theft Waiver is immediately invalidated.

9.2 — The Customer indemnifies Mackay Refrigeration in respect of any damages, costs, or loss caused or contributed to by the Customer resulting from a breach of any provision of this Contract.

10. Disputes

10.1 — The Customer must immediately check all Hire Charges upon receipt. Any disputes must be communicated to Mackay Refrigeration in writing within 30 days of the Hire Contract date. If no communication is received within that period, the Hire Charges are deemed accepted by the Customer.

10.2 — If a dispute arises relating to this Contract (except in regard to payments due to Mackay Refrigeration), the parties agree to negotiate to settle the dispute with the assistance of the Hire and Rental Association of Australia before commencing litigation.

11. Privacy

Mackay Refrigeration will comply with the Australian Privacy Principles in all dealings with Customers.

12. Acts and Governing Law

This Hire Contract is a payment claim under applicable Building and Construction Industry Security of Payment legislation, including acts in force in NSW, VIC, QLD, SA, WA, ACT, TAS, and NT.

12.1 — Except where Mackay Refrigeration takes action under any of the above legislation, this Contract is governed by the law of Queensland, and the parties submit to the jurisdiction of the courts of that State.