Terms, Conditions, Shipping & Privacy

1. 1. Definitions
      1. “Pelican Rouge” means Roode Pelikaan – Pelican Rouge Pty Ltd T/A Pelican Rouge, its successors and assigns or any person acting on behalf of and with the authority of Roode Pelikaan – Pelican Rouge Pty Ltd T/A Pelican Rouge.
      2. “Client” means the person/s and/or Business buying the Goods (and/or hiring Equipment) as specified in any invoice, document or order, and if there is more than one Client is a reference to each Client jointly and severally.
      3. “Goods” means all Goods or Services supplied by Pelican Rouge to the Client at the Client’s request from time to time (where the context so permits the terms ‘Goods’ or ‘Services’ shall be interchangeable for the other).
      4. “Equipment” means all Equipment, including any accessories supplied on hire and/or on loan by Pelican Rouge to the Client (and where the context so permits, shall include any supply of Services). The Equipment shall be as described on the invoices, quotation, Equipment loan form, authority to hire, or any other work authorisation form provided by Pelican Rouge to the Client.
      5. “Minimum Hire Period” means the Minimum Hire Period as described on the invoices, quotation, authority to hire, or any other forms as provided by Pelican Rouge to the Client.
      6. “Price” means the Price payable for the Goods as agreed between Pelican Rouge and the Client in accordance with clause 4 below.
   2. Acceptance
      1. The Client is taken to have exclusively accepted and is immediately bound, jointly and severally, by these terms and conditions if the Client places an order for or accepts delivery of the Goods/Equipment.
      2. These terms and conditions may only be amended with Pelican Rouge’s consent in writing and shall prevail to the extent of any inconsistency with any other document or agreement between the Client and Pelican Rouge.
   3. Change in Control
      1. The Client shall give Pelican Rouge not less than fourteen (14) days prior written notice of any proposed change of ownership of the Client and/or any other change in the Client’s details (including but not limited to changes in the Client’s name, address, contact phone or fax number/s, or business practice). The Client shall be liable for any loss incurred by Pelican Rouge as a result of the Client’s failure to comply with this clause.
   4. Price and Payment
      1. At Pelican Rouge’s sole discretion, the Price shall be either:
         (a) as indicated on any invoice provided by Pelican Rouge to the Client; or
         (b) the Price as at the date of delivery of the Goods/Equipment according to Pelican Rouge’s current price list; or
         (c) Pelican Rouge’s quoted price (subject to clause 4.2) will be valid for the period stated in the quotation or otherwise for a period of thirty (30) days.
      2. Pelican Rouge reserves the right to change the Price if a variation to Pelican Rouge’s quotation is requested. Any variation from the plan or specifications (including, but not limited to, any variation due to unforeseen circumstances, or due to fluctuations in the currency exchange rate, or a result of increases to Pelican Rouge in the cost of materials and labour) will be charged for on the basis of Pelican Rouge’s quotation and will be shown as variations on the invoice. Payment for all variations must be made in full at the time of completion.
      3. At Pelican Rouge’s sole discretion, a non-refundable deposit may be required.
      4. Time for payment for the Goods/Equipment being of the essence, the Price will be payable by the Client on the date/s determined by Pelican Rouge, which may be:
         (a) on delivery of the Goods/Equipment;
         (b) before delivery of the Goods/Equipment;
         (c) by way of instalments/progress payments in accordance with Pelican Rouge’s payment schedule;
         (d) thirty (30) days following the end of the month in which a statement is posted to the Client’s address or address for notices;
         (e) the date specified on any invoice or other form as being the date for payment; or
         (f) failing any notice to the contrary, the date which is seven (7) days following the date of any invoice given to the Client by Pelican Rouge.
      5. At Pelican Rouge’s sole discretion, a discount may be offered on accounts settled within the above payment terms.
      6. Payment may be made by cash, cheque, bank cheque, electronic/on-line banking, credit card (plus a surcharge of up to two and a half percent (2.5%) of the Price), or by any other method as agreed to between the Client and Pelican Rouge.
      7. Unless otherwise stated, the Price does not include GST. In addition to the Price the Client must pay to Pelican Rouge an amount equal to any GST, Pelican Rouge must pay for any supply by Pelican Rouge under this or any other agreement for the sale of the Goods/hire of the Equipment. The Client must pay GST, without deduction or set off of any other amounts, at the same time and on the same basis as the Client pays the Price. In addition the Client must pay any other taxes and duties that may be applicable in addition to the Price except where they are expressly included in the Price.
   5. Delivery of Goods/Equipment
      1. Delivery (“Delivery”) of the Goods/Equipment is taken to occur at the time that:
         (a) the Client or the Client’s nominated carrier takes possession of the Goods/Equipment at Pelican Rouge’s address; or
         (b) Pelican Rouge (or Pelican Rouge’s nominated carrier) delivers the Goods/Equipment to the Client’s nominated address even if the Client is not present at the address.
      2. At Pelican Rouge’s sole discretion, the cost of delivery is included in the Price.
      3. The Client must take delivery by receipt or collection of the Goods/Equipment whenever either is tendered for delivery. In the event that the Client is unable to take delivery of the Goods as arranged then Pelican Rouge shall be entitled to charge a reasonable fee for redelivery and/or storage.
      4. Pelican Rouge may deliver the Goods/Equipment in separate instalments. Each separate instalment shall be invoiced and paid in accordance with the provisions in these terms and conditions.
      5. Any time or date given by Pelican Rouge to the Client is an estimate only. The Client must still accept delivery of the Goods/Equipment even if late and Pelican Rouge will not be liable for any loss or damage incurred by the Client as a result of the delivery being late.
   6. Risk to Goods
      1. Risk of damage to or loss of the Goods passes to the Client on Delivery and the Client must insure the Goods on or before Delivery.
      2. If any of the Goods are damaged or destroyed following delivery but prior to ownership passing to the Client, Pelican Rouge is entitled to receive all insurance proceeds payable for the Goods. The production of these terms and conditions by Pelican Rouge is sufficient evidence of Pelican Rouge’s rights to receive the insurance proceeds without the need for any person dealing with Pelican Rouge to make further enquiries.
      3. If the Client requests Pelican Rouge to leave Goods outside Pelican Rouge’s premises for collection or to deliver the Goods to an unattended location then such Goods shall be left at the Client’s sole risk.
   7. Title to Goods
      1. Pelican Rouge and the Client agree that ownership of the Goods shall not pass until:
         (a) the Client has paid Pelican Rouge all amounts owing to Pelican Rouge; and
         (b) the Client has met all of its other obligations to Pelican Rouge.
      2. Receipt by Pelican Rouge of any form of payment other than cash shall not be deemed to be payment until that form of payment has been honoured, cleared or recognised.
      3. It is further agreed that:
         (a) until ownership of the Goods passes to the Client in accordance with clause 7.1 that the Client is only a bailee of the Goods and must return the Goods to Pelican Rouge on request.
         (b) the Client holds the benefit of the Client’s insurance of the Goods on trust for Pelican Rouge and must pay to Pelican Rouge the proceeds of any insurance in the event of the Goods being lost, damaged or destroyed.
         (c) the Client must not sell, dispose, or otherwise part with possession of the Goods other than in the ordinary course of business and for market value. If the Client sells, disposes or parts with possession of the Goods then the Client must hold the proceeds of any such act on trust for Pelican Rouge and must pay or deliver the proceeds to Pelican Rouge on demand.
         (d) the Client should not convert or process the Goods or intermix them with other goods but if the Client does so then the Client holds the resulting product on trust for the benefit of Pelican Rouge and must sell, dispose of or return the resulting product to Pelican Rouge as it so directs.
         (e) the Client irrevocably authorises Pelican Rouge to enter any premises where Pelican Rouge believes the Goods are kept and recover possession of the Goods.
         (f) Pelican Rouge may recover possession of any Goods in transit whether or not delivery has occurred.
         (g) the Client shall not charge or grant an encumbrance over the Goods nor grant nor otherwise give away any interest in the Goods while they remain the property of Pelican Rouge.
         (h) Pelican Rouge may commence proceedings to recover
   8. Equipment Provided On Hire/Loan
      1. Equipment shall at all times remain the property of Pelican Rouge and is returnable on demand by Pelican Rouge. In the event that Equipment is not returned to Pelican Rouge in the condition in which it was delivered Pelican Rouge retains the right to charge the Client the full cost of repairing the Equipment. In the event that Equipment is not returned at all Pelican Rouge shall have right to charge the Client the full cost of replacing the Equipment.
      2. The Client shall;
         (a) keep the Equipment in their own possession and control and shall not assign the benefit of the Equipment nor be entitled to a lien over the Equipment.
         (b) not alter or make any additions to the Equipment including but without limitation altering, make any additions to, defacing or erasing any identifying mark, plate or number on or in the Equipment or in any other manner interfere with the Equipment.
         (c) keep the Equipment, complete with all parts and accessories, clean and in good order as delivered, and shall comply with any maintenance schedule as advised by Pelican Rouge to the Client.
      3. The Client accepts full responsibility for the safekeeping of the Equipment and the Client agrees to insure, or self insure, Pelican Rouge’s interest in the Equipment and agrees to indemnify Pelican Rouge 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 or persons arising out of the use of the Equipment. Further the Client will not use the Equipment nor permit it to be used in such a manner as would permit an insurer to decline any claim.
   9. Licence to Use
      1. Pelican Rouge grants to the Client a personal, non-exclusive, non-transferable, limited licence to use the Equipment, provided that:
         (a) the Client ensures the Equipment is serviced (every twelve (12) months) and any consumable parts (including, but not limited to, filters and seals) are changed (every six (6) months) exclusively by Pelican Rouge, which shall be additionally charged to the Client; and
         (b) any consumables and sundry items (including, but not limited to, cleaning products for the Equipment) which are to be utilised in conjunction with the Equipment are purchased exclusively from Pelican Rouge.
      2. Where the Client fails to adhere to clause 9.1, Pelican Rouge may (at their sole discretion) terminate the right to the loan Equipment or apply penalty charges to the Client’s account, the amount immediately becoming due and payable.
   10. Personal Property Securities Act 2009 (“PPSA”)
       1. In this clause financing statement, financing change statement, security agreement, and security interest has the meaning given to it by the PPSA.
       2. Upon assenting to these terms and conditions in writing the Client acknowledges and agrees that these terms and conditions constitute a security agreement for the purposes of the PPSA and creates a security interest in all Goods/Equipment that has previously been supplied and that will be supplied in the future by Pelican Rouge to the Client.
       3. The Client undertakes to:
          (a) promptly sign any further documents and/or provide any further information (such information to be complete, accurate and up-to-date in all respects) which Pelican Rouge may reasonably require to;
          (i) register a financing statement or financing change statement in relation to a security interest on the Personal Property Securities Register;
          (ii) register any other document required to be registered by the PPSA; or
          (iii) correct a defect in a statement referred to in clause 10.3(a)(i) or 10.3(a)(ii);
          (b) indemnify, and upon demand reimburse, Pelican Rouge for all expenses incurred in registering a financing statement or financing change statement on the Personal Property Securities Register established by the PPSA or releasing any Goods/Equipment charged thereby;
          (c) not register a financing change statement in respect of a security interest without the prior written consent of Pelican Rouge;
          (d) not register, or permit to be registered, a financing statement or a financing change statement in relation to the Goods/Equipment in favour of a third party without the prior written consent of Pelican Rouge;
          (e) immediately advise Pelican Rouge of any material change in its business practices of selling Goods which would result in a change in the nature of proceeds derived from such sales.
       4. Pelican Rouge and the Client agree that sections 96, 115 and 125 of the PPSA do not apply to the security agreement created by these terms and conditions.
       5. The Client waives their rights to receive notices under sections 95, 118, 121(4), 130, 132(3)(d) and 132(4) of the PPSA.
       6. The Client waives their rights as a grantor and/or a debtor under sections 142 and 143 of the PPSA.
       7. Unless otherwise agreed to in writing by Pelican Rouge, the Client waives their right to receive a verification statement in accordance with section 157 of the PPSA.
       8. The Client must unconditionally ratify any actions taken by Pelican Rouge under clauses 10.3 to 10.5.
       9. Subject to any express provisions to the contrary nothing in these terms and conditions is intended to have the effect of contracting out of any of the provisions the PPSA.
   11. Security and Charge
       1. In consideration of Pelican Rouge agreeing to supply the Goods/Equipment, the Client charges all of its rights, title and interest (whether joint or several) in any land, realty or other assets capable of being charged, owned by the Client either now or in the future, to secure the performance by the Client of its obligations under these terms and conditions (including, but not limited to, the payment of any money).
       2. The Client indemnifies Pelican Rouge from and against all Pelican Rouge’s costs and disbursements including legal costs on a solicitor and own client basis incurred in exercising Pelican Rouge’s rights under this clause.
       3. The Client irrevocably appoints Pelican Rouge and each director of Pelican Rouge as the Client’s true and lawful attorney/s to perform all necessary acts to give effect to the provisions of this clause 11 including, but not limited to, signing any document on the Client’s behalf.
   12. Defects, Warranties and Returns, Competition and Consumer Act 2010 (CCA)
       1. The Client must inspect the Goods/Equipment on delivery and must within forty-eight (48) hours for any food Goods, or within seven (7) days of delivery for any other Goods, notify Pelican Rouge in writing of any evident defect/damage, shortage in quantity, or failure to comply with the description or quote. The Client must notify any other alleged defect in the Goods/Equipment as soon as reasonably possible after any such defect becomes evident. Upon such notification the Client must allow Pelican Rouge to inspect the Goods/Equipment.
       2. Under applicable State, Territory and Commonwealth Law (including, without limitation the CCA), certain statutory implied guarantees and warranties (including, without limitation the statutory guarantees under the CCA) may be implied into these terms and conditions (Non-Excluded Guarantees).
       3. Pelican Rouge acknowledges that nothing in these terms and conditions purports to modify or exclude the Non-Excluded Guarantees.
       4. Except as expressly set out in these terms and conditions or in respect of the Non-Excluded Guarantees, Pelican Rouge makes no warranties or other representations under these terms and conditions including but not limited to the quality or suitability of the Goods/Equipment. Pelican Rouge’s liability in respect of these warranties is limited to the fullest extent permitted by law.
       5. If the Client is a consumer within the meaning of the CCA, Pelican Rouge’s liability is limited to the extent permitted by section 64A of Schedule 2.
       6. If Pelican Rouge is required to replace the Goods under this clause or the CCA, but is unable to do so, Pelican Rouge may refund any money the Client has paid for the Goods.
       7. If the Client is not a consumer within the meaning of the CCA, Pelican Rouge’s liability for any defect or damage in the Goods is:
          (a) limited to the value of any express warranty or warranty card provided to the Client by Pelican Rouge at Pelican Rouge’s sole discretion;
          (b) limited to any warranty to which Pelican Rouge is entitled, if Pelican Rouge did not manufacture the Goods;
          (c) otherwise negated absolutely.
       8. Subject to this clause 12, returns will only be accepted provided that:
          (a) the Client has complied with the provisions of clause 12.1; and
          (b) Pelican Rouge has agreed that the Goods are defective; and
          (c) the Goods are returned within a reasonable time at the Client’s cost (if that cost is not significant); and
          (d) the Goods are returned in as close a condition to that in which they were delivered as is possible.
       9. Notwithstanding clauses 12.1 to 12.8 but subject to the CCA, Pelican Rouge shall not be liable for any defect or damage which may be caused or partly caused by or arise as a result of:
          (a) the Client failing to properly maintain or store any Goods/Equipment;
          (b) the Client using the Goods/Equipment for any purpose other than that for which they were designed;
          (c) the Client continuing the use of the Goods/Equipment after any defect became apparent or should have become apparent to a reasonably prudent operator or user;
          (d) the Client failing to follow any instructions or guidelines provided by Pelican Rouge;
          (e) fair wear and tear, any accident, or act of God.
       10. In the case of second hand Goods, unless the Client is a consumer under the CCA, the Client acknowledges that it has had full opportunity to inspect the second hand Goods prior to delivery and accepts them with all faults and that to the extent permitted by law no warranty is given by Pelican Rouge as to the quality or suitability for any purpose and any implied warranty, statutory or otherwise, is expressly excluded. The Client acknowledges and agrees that Pelican Rouge has agreed to provide the Client with the second hand Goods and calculated the Price of the second hand Goods in reliance of this clause 12.10.
       11. Pelican Rouge may in its absolute discretion accept non-defective Goods for return in which case Pelican Rouge may require the Client to pay handling fees of up to twenty-five percent (25%) of the value of the returned Goods plus any freight costs.
       12. Notwithstanding anything contained in this clause if Pelican Rouge is required by a law to accept a return then Pelican Rouge will only accept a return on the conditions imposed by that law.
   13. Default and Consequences of Default
       1. Interest on overdue invoices shall accrue daily from the date when payment becomes due, until the date of payment, at a rate of two and a half percent (2.5%) per calendar month (and at Pelican Rouge’s sole discretion such interest shall compound monthly at such a rate) after as well as before any judgment.
       2. If the Client owes Pelican Rouge any money, the Client shall indemnify Pelican Rouge from and against all costs and disbursements incurred by Pelican Rouge in recovering the debt (including but not limited to internal administration fees, legal costs on a solicitor and own client basis, Pelican Rouge’s contract default fee, and bank dishonour fees).
       3. Without prejudice to any other remedies, Pelican Rouge may have, if at any time the Client is in breach of any obligation (including those relating to payment) under these terms and conditions, Pelican Rouge may suspend or terminate the supply of Goods/Equipment to the Client. Pelican Rouge will not be liable to the Client for any loss or damage the Client suffers because Pelican Rouge has exercised its rights under this clause.
       4. Without prejudice to any other remedies Pelican Rouge may have if at any time the Client is in breach of any obligation (including those relating to payment), then any concessions outlined in any quotation or documentation between Pelican Rouge and the Client, and/or any discount, markdown, reduction or special price which has been offered by Pelican Rouge to the Client may be withdrawn, or cancelled until the Client rectifies their obligations, and Pelican Rouge’s standard Terms and Conditions herein shall then apply.
       5. Without prejudice to Pelican Rouge’s other remedies at law Pelican Rouge shall be entitled to cancel all or any part of any order of the Client which remains unfulfilled and all amounts owing to Pelican Rouge shall, whether or not due for payment, become immediately payable if:
          (a) any money payable to Pelican Rouge becomes overdue, or in Pelican Rouge’s opinion the Client will be unable to make a payment when it falls due;
          (b) the Client becomes insolvent, convenes a meeting with its creditors or proposes or enters into an arrangement with creditors, or makes an assignment for the benefit of its creditors; or
          (c) a receiver, manager, liquidator (provisional or otherwise) or similar person is appointed in respect of the Client or any asset of the Client.
   14. Cancellation
       1. Pelican Rouge may cancel any contract to which these terms and conditions apply or cancel delivery of Goods at any time before the Goods are delivered by giving written notice to the Client. On giving such notice Pelican Rouge shall repay to the Client any money paid by the Client for the Goods/Equipment. Pelican Rouge shall not be liable for any loss or damage whatsoever arising from such cancellation.
       2. In the event that the Client cancels delivery of Goods/Equipment the Client shall be liable for any and all loss incurred (whether direct or indirect) by Pelican Rouge as a direct result of the cancellation (including, but not limited to, any loss of profits).
       3. Cancellation of orders for Goods/Equipment made to the Client’s specifications, or for non-stocklist items, will definitely not be accepted once production has commenced, or an order has been placed.
   15. Privacy Act 1988
       1. The Client agrees for Pelican Rouge to obtain from a credit reporting agency a credit report containing personal credit information about the Client in relation to credit provided by Pelican Rouge.
       2. The Client agrees that Pelican Rouge may exchange information about the Client with those credit providers either named as trade referees by the Client or named in a consumer credit report issued by a credit reporting agency for the following purposes:
          (a) to assess an application by the Client; and/or
          (b) to notify other credit providers of a default by the Client; and/or
          (c) to exchange information with other credit providers as to the status of this credit account, where the Client is in default with other credit providers; and/or
          (d) to assess the creditworthiness of the Client.
          The Client understands that the information exchanged can include anything about the Client’s creditworthiness, credit standing, credit history or credit capacity that credit providers are allowed to exchange under the Privacy Act 1988.
       3. The Client consents to Pelican Rouge being given a consumer credit report to collect overdue payment on commercial credit (Section 18K(1)(h) Privacy Act 1988).
       4. The Client agrees that personal credit information provided may be used and retained by Pelican Rouge for the following purposes (and for other purposes as shall be agreed between the Client and Pelican Rouge or required by law from time to time):
          (a) the provision of Goods/Equipment; and/or
          (b) the marketing of Goods/Equipment by Pelican Rouge, its agents or distributors; and/or
          (c) analysing, verifying and/or checking the Client’s credit, payment and/or status in relation to the provision of Goods/Equipment; and/or
          (d) processing of any payment instructions, direct debit facilities and/or credit facilities requested by the Client; and/or
          (e) enabling the daily operation of Client’s account and/or the collection of amounts outstanding in the Client’s account in relation to the Goods.
       5. Pelican Rouge may give information about the Client to a credit reporting agency for the following purposes:
          (a) to obtain a consumer credit report about the Client;
          (b) allow the credit reporting agency to create or maintain a credit information file containing information about the Client.
       6. The information given to the credit reporting agency may include:
          (a) personal particulars (the Client’s name, sex, address, previous addresses, date of birth, name of employer and driver’s licence number);
          (b) details concerning the Client’s application for credit or commercial credit and the amount requested;
          (c) advice that Pelican Rouge is a current credit provider to the Client;
          (d) the advice of any overdue accounts, loan repayments, and/or any outstanding monies owing which are overdue by more than sixty (60) days and for which debt collection action has been started;
          (e) that the Client’s overdue accounts, loan repayments and/or any outstanding monies are no longer overdue in respect of any default that has been listed;
          (f) information that, in the opinion of Pelican Rouge, the Client has committed a serious credit infringement (that is, fraudulently or shown an intention not to comply with the Client’s credit obligations);
          (g) advice that cheques drawn by the Client for one hundred dollars ($100) or more have been dishonoured more than once;
          (h) that credit provided to the Client by Pelican Rouge has been paid or otherwise discharged.
   16. Unpaid Pelican Rouge’s Rights
       1. Where the Client has left any item with Pelican Rouge for repair, modification, exchange or for Pelican Rouge to perform any other service in relation to the item and Pelican Rouge has not received or been tendered the whole of any moneys owing to it by the Client, Pelican Rouge shall have, until all moneys owing to Pelican Rouge are paid:
          (a) a lien on the item; and
          (b) the right to retain or sell the item, such sale to be undertaken in accordance with any legislation applicable to the sale or disposal of uncollected goods.
       2. The lien of Pelican Rouge shall continue despite the commencement of proceedings, or judgment for any moneys owing to Pelican Rouge having been obtained against the Client.
   17. General
       1. The failure by Pelican Rouge to enforce any provision of these terms and conditions shall not be treated as a waiver of that provision, nor shall it affect Pelican Rouge’s right to subsequently enforce that provision. If any provision of these terms and conditions shall be invalid, void, illegal or unenforceable the validity, existence, legality and enforceability of the remaining provisions shall not be affected, prejudiced or impaired.
       2. These terms and conditions and any contract to which they apply shall be governed by the laws of the state in which Pelican Rouge has its principal place of business and are subject to the jurisdiction of the courts in that state.
       3. Subject to clause 12, Pelican Rouge shall be under no liability whatsoever to the Client for any indirect and/or consequential loss and/or expense (including loss of profit) suffered by the Client arising out of a breach by Pelican Rouge of these terms and conditions (alternatively Pelican Rouge’s liability shall be limited to damages which under no circumstances shall exceed the Price of the Goods/Equipment hire).
       4. The Client shall not be entitled to set off against or deduct from the Price any sums owed or claimed to be owed to the Client by Pelican Rouge nor to withhold payment of any invoice because part of that invoice is in dispute.
       5. Pelican Rouge may license or sub-contract all or any part of its rights and obligations without the Client’s consent.
       6. The Client agrees that Pelican Rouge may amend these terms and conditions at any time. If Pelican Rouge makes a change to these terms and conditions, then that change will take effect from the date on which Pelican Rouge notifies the Client of such change. The Client will be taken to have accepted such changes if the Client makes a further request for Pelican Rouge to provide Goods/Equipment to the Client.
       7. Neither party shall be liable for any default due to any act of God, war, terrorism, strike, lock-out, industrial action, fire, flood, storm or other event beyond the reasonable control of either party.
       8. The Client warrants that it has the power to enter into this agreement and has obtained all necessary authorisations to allow it to do so, it is not insolvent and that this agreement creates binding and valid legal obligations on it.

Additional Terms & Conditions Applicable to Hire Only

1. Hire Period
   1. For Equipment in which a timing device is installed the hire period shall be the number of hours or part thereof recorded on the timing device whilst the Equipment is in the Client’s possession.
   2. Where the Equipment does not have a timing device installed hire charges shall commence from the time the Equipment is collected by the Client from Pelican Rouge’s premises and will continue until the return of the Equipment to Pelican Rouge’s premises, and/or until the expiry of the Minimum Hire Period, whichever last occurs.
   3. If Pelican Rouge agrees with the Client to deliver and/or collect the Equipment, hire charges shall commence from the time the Equipment leaves Pelican Rouge’s premises and continue until the Client notifies Pelican Rouge that the Equipment is available for collection, and/or until the expiry of the Minimum Hire Period, whichever last occurs.
   4. The date upon which the Client advises of termination shall in all cases be treated as a full day’s hire.
   5. No allowance whatsoever can be made for time during which the Equipment is not in use for any reason, unless Pelican Rouge confirms special prior arrangements in writing. In the event of Equipment breakdown provided the Client notifies Pelican Rouge immediately, hiring 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 Client.
2. Risk to Equipment
   1. Pelican Rouge retains property in the Equipment; nonetheless, all risk for the Equipment passes to the Client on delivery.
   2. The Client accepts full responsibility for the safekeeping of the Equipment and indemnifies Pelican Rouge 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 Client.
   3. The Client will ensure, or self-insure, Pelican Rouge’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. Further the Client will not use the Equipment nor permit it to be used in such a manner as would permit an insurer to decline any claim.
   4. The Client accepts full responsibility for and shall keep Pelican Rouge indemnified against all liability in respect of all actions, proceedings, claims, damages, costs and expenses in respect of any injury to persons or damage to property arising out of the use of the Equipment during the hire period however arising and whether or not arising from any negligence, failure or omission of the Client or any other persons.
3. Title to Equipment
   1. The Equipment is and will at all times remain the absolute property of Pelican Rouge.
   2. If the Client fails to return the Equipment to Pelican Rouge then Pelican Rouge or Pelican Rouge’s agent may (as the invitee of the Client) enter upon and into land and premises owned, occupied or used by the Client, or any premises where the Equipment is situated and take possession of the Equipment, without being responsible for any damage thereby caused.
   3. The Client is not authorised to pledge Pelican Rouge’s credit for repairs to the Equipment or to create a lien over the Equipment in respect of any repairs.
4. Client’s Responsibilities
   1. The Client shall:
      (a) notify Pelican Rouge immediately by telephone of the full circumstances of any mechanical breakdown or accident. The Client is not absolved from the requirements to safeguard the Equipment by giving such notification;
      (b) satisfy itself at commencement that the Equipment is suitable for its purposes;
      (c) operate the Equipment safely, strictly in accordance with the law, only for its intended use, and in accordance with any manufacturer’s instruction whether supplied by Pelican Rouge or posted on the Equipment;
      (d) comply with all occupational health and safety laws relating to the Equipment and its operation;
      (e) on termination of the hire, deliver the Equipment complete with all parts and accessories, clean and in good order as delivered, fair wear and tear accepted, to Pelican Rouge;
      (f) keep the Equipment in their own possession and control and shall not assign the benefit of the hire contract nor be entitled to lien over the Equipment;
      (g) not alter or make any additions to the Equipment including but without limitation altering, make any additions to, defacing or erasing any identifying mark, plate or number on or in the Equipment or in any other manner interfere with the Equipment;
      (h) employ the Equipment solely in its own work and shall not permit the Equipment of any part thereof to be used by any other party for any other work;
      (i) not exceed the recommended or legal load and capacity limits of the Equipment;
      (j) not use or carry any illegal, prohibited or dangerous substance in or on the Equipment;
      (k) indemnify and hold harmless Pelican Rouge in respect of all claims arising out of the Client’s use of the Equipment.
   2. Immediately on request by Pelican Rouge the Client will pay:
      (a) the new list price of any Equipment that is for whatever reason destroyed, written off or not returned to Pelican Rouge;
      (b) all costs incurred in cleaning the Equipment;
      (c) all costs of repairing any damage caused by the ordinary use of the Equipment up to an amount equal to ten percent (10%) of the new list price of the Equipment;
      (d) the cost of repairing any damage to the Equipment caused by the negligence of the Client or the Client’s agent;
      (e) the cost of repairing any damage to the Equipment caused by vandalism, or (in Pelican Rouge’s reasonable opinion) in any way whatsoever other than by the ordinary use of the Equipment by the Client.
5. Wet Hire
   1. In the event of “wet” hire of the Equipment the operator of the Equipment remains an employee of Pelican Rouge and operates the Equipment in accordance with the Client’s instructions. As such Pelican Rouge shall not be liable for any actions of the operator in following the Client’s instructions.