Conditions of Hire

  1. DEFINITIONS AND INTERPRETATION
    1.1. DEFINITIONS
    Any terms defined in the POH have the same meaning in this Agreement. Unless the context requires otherwise, in this Agreement the following Terms have the following meaning :
    Agreement Means this agreement and includes and rules, instructions, usage notes or other information the Owner provides.
    Airport Means Whitsunday Airport, Shute Harbour Road, Flame Tree, Whitsunday, Qld.
    Authority Means any government or government department whether local, State, or Federal, and includes a person charged with the administration of a Law.
    CASA Means the Civil Aviation Safety Authority.
    Collective Hours Means the collective hours recorded on the Hobbs Meter adjacent to the pilot side door in the Helicopter and entered in the Maintenance Release for the Helicopter by a pilot pursuant to regulation 43 of the Civil Aviation Regulations 1988 (Cth).
    EMU Has the meaning given it in the POH.
    Equipment Includes five (5) EAM Titan flotation vests, five (5) Bose A20 headsets, skid floats, pneumatic ground handling wheels, Robinson bubble cover, solar dash shield, cleaning equipment.
    Fuel Means JET A1
    GST Means a goods and services tax under the GST Act.
    GST Act Means the A New Tax System (Goods and Services) Act 1999.
    Hangar Means the hangar in which the Helicopter is located before the start the of the Hire Period.
    Helicopter Means Robinson R66 Helicopter, SN 0158, Registration VH-TAI, and includes the Equipment.
    Hire Period Means the period(s) the Hirer and the Owner have agreed that the Hirer will be entitled to hire the Helicopter, starting when the Hirer accesses the Helicopter and ending when the Helicopter is returned, in accordance with this Agreement.
    Hire Rate Means the rate set by the Owner from time to time per Collective Hour or part thereof, plus GST.
    Hirer Negligence Includes:
    a) negligent acts or omissions;
    b) misuse or mishandling including incorrect starting sequence, over speeding the engine or the rotors or both, over pitching, over torquing, insufficient warmup and cool down periods;
    c) failure to observe and ensure proper and safe clearance on rotors before and during start-up procedures;
    d) failure to observe any duty of care owed at law to the Owner or any person;
    e) breach of this Agreement whether by intent or not, of, by or on the part of the Hirer.
    Insurance Cover Includes comprehensive helicopter and hangar insurance for the Helicopter.
    Insurance Deductible Includes any deductible, excess, or expense payable to an insurer following making a claim on the Insurance Cover.
    Law Includes the common law, any legislation passed by any Authority, statutory instruments, and the requirements of any Authority.
    Maintenance Release Means the maintenance release form as required under regulation 43 of the Civil Aviation Regulations 1988 (Cth), located in the Helicopter.
    Minimum Requirements Means the minimum requirements that the Hirer must meet in order to hire the Helicopter including:
    (a) Current private (or higher) helicopter pilots licence with CASA;
    (b) Current medical applicable;
    (c) log book showing minimum 250 hours rotary as PIC, or otherwise as agreed between the Hirer and the Owner in writing; and
    (d) minimum 100 hours R66 PIC, or Minimum 45 minute flight test with instructor of Owner’s choice;
    (e) If required, endorsement on the Insurance Cover.
    Permitted Use Means the use of the Helicopter for private, pleasure and business purposes (excluding charter purposes).
    PIC Means pilot in command.
    POH Means the Robinson Pilot’s Operating Handbook for the Helicopter, located in the Helicopter.
    Prohibited Locations Include:
    (A) Whitehaven Beach;
    (B) any island (unless at a designated heliport); or
    (C) any surface (sand or otherwise) where it is likely to adversely affect the condition of any component of the Helicopter in the opinion of the Owner or its LAME, acting reasonably.
    Spidertracks Means the proprietary Spidertracks GPS unit fitted to the Helicopter used to convey the position and flight information of the Helicopter to the Owner and its agents.
    Valet Fee Means the sum as advised by the Owner from time to time to provide a valet service for the Hirer (where applicable).
    1.2. INTERPRETATION
    In the interpretation of this Agreement:
    (a) references to legislation or provisions of legislation include changes or re-enactments of the legislation and statutory instruments and regulations issued under the legislation;
    (b) words denoting the singular include the plural and vice versa, words denoting individuals or persons include bodies corporate and vice versa, references to documents or agreements also mean those documents or agreements as changed, novated or replaced, and words denoting one gender include all genders;
    (c) grammatical forms of defined words or phrases have corresponding meanings;
    (d) parties must perform their obligations on the dates and times fixed by reference to Brisbane;
    (e) reference to an amount of money is a reference to the amount in the lawful currency of the Commonwealth of Australia;
    (f) if the date on or by which anything is to be done is a Saturday, a Sunday or a public holiday in the place in which it should be done, then it must be done on the next business day;
    (g) references to a party bind their executors, administrators and permitted assigns and transferees;
    (h) a reference to the Hirer or the Owner includes their respective agents, employees, servants, or contractors; and
    (i) obligations under this Agreement affecting more than one party bind them jointly and each of them severally.
  2. HIRE
    2.1. HIRE
    In consideration of the Hirer paying the Hire Rates, the Owner agrees to hire the Helicopter to the Hirer for the Hire Period on the conditions set out in this Agreement.
    2.2. CANCELLATION OR CHANGE
    The Hirer agrees that notwithstanding entry into this Agreement:
    (a) the availability and use of the Helicopter are subject to its state of airworthiness, maintenance requirements and prevailing weather conditions;
    (b) the Owner may cancel, restrict or otherwise place additional conditions on the use of the Helicopter in its discretion;
    (c) the Owner will not be liable for any loss or damage suffered by the Hirer by reason of the Helicopter being unavailable at any time during the Hire Period, or at all.
  3. HIRE RATES AND OTHER PAYMENTS
    3.1. PAYMENT ON INVOICE
    The Hirer will be charged the Hire Rate, and invoiced after completion of the Hire, with payment due 7 days from the date appearing on the invoice.
    3.2. OTHER COSTS
    The Hirer will be responsible for:
    (a) all fuel and engine oil consumed;
    (b) the Insurance Deductible, for any insurance claim made (successful or otherwise) under the Insurance Cover arising from the Hirer’s use of the Helicopter;
    (c) any additional premium or other increase in cost of the Insurance Cover arising out of the Hirer’s use of the Helicopter;
    (d) any inspection, cleaning, maintenance, or repair costs arising out of the use of the Helicopter by the Hirer:
    (i) in breach of this Agreement;
    (ii) beyond the Helicopter’s performance standards; or
    (iii) resulting from any incident whilst the Hirer was responsible for the Helicopter.
  4. USE
    4.1. USE
    The Hirer will only use the Helicopter for the Permitted Use and otherwise in accordance with:
    (a) this Agreement;
    (b) the POH; and
    (c) all applicable Laws.
    4.2. RESPONSIBILITY, ACCESS AND RETURN
    (a) The Hirer will be responsible for the Helicopter for the Hire Period.
    (b) The Hirer may only access the Helicopter or the Hangar if the Owner:
    (i) or its representative is present; or
    (ii) has authorised the Hirer in writing.
    (c) If the Hirer has agreed to pay the Valet Fee, and subject to availability of the valet service the Owner or its representative will assist the Hirer in accessing the Helicopter, fuelling and towing it to a helipad, and returning it to the hangar following use.
    (d) The Hirer must return the Helicopter to the Hangar unless it has agreed to pay the Valet Fee, in which case the Helicopter may be left on a helipad at the Airport, at which point it will be deemed returned.
    4.3. OPERATIONAL RESTRICTIONS
    The Hirer acknowledges and agrees:
    (a) the Helicopter and its components, in particular its engine, can be adversely affected by the induction of fine particles including silica, sand and other material;
    (b) the intent of limiting the locations on which the Helicopter can land is to better ensure the safety of the Hirer and its passengers, and to prolong the life of the Helicopter and its components;
    (c) it will not, unless in a declared emergency, land on a Prohibited Surface;
    (d) if it lands the Helicopter on a Prohibited Surface during the Hire Period, it will indemnify the Owner for, and pay on demand, all costs the Owner incurs including unscheduled maintenance costs to inspect, clean, repair or replace components of the Helicopter as the case may be.
    4.4. HIRER ACKNOWLEDGEMENTS
    (a) The Hirer acknowledges that it must:
    (i) undertake all daily pre-flight, fuel and other checks; and
    (ii) review and complete the Maintenance Release.
    as required in the POH and under any applicable Law.
    (b) By using the Helicopter, the Hirer acknowledges and agrees that:
    (i) it accepts and approves the condition and the status of the Helicopter based on the Maintenance Release;
    (ii) the Helicopter is satisfactory for the use intended under this Agreement and for the purposes intended by the Hirer;
    (iii) it is not authorised to undertake any rectifications or modifications of any description;
    (iv) the Owner does not expressly or implicitly warrant that the Helicopter is or will remain fit, suitable or adequate for all or any of the purposes of the Hirer as contemplated under this Agreement and any warranties so implied are negatived to the fullest extent permitted by Law;
    (v) it uses the Helicopter at its own risk and the Owner will not under any circumstances be liable for any:
    (A) loss or damage occasioned to any plant, equipment, fixtures, fittings, merchandise or any other property of any description of the Hirer;
    (B) any loss or damage suffered by the Hirer for any malfunction or failure of the Helicopter to function or other inability to use the Helicopter at any time during the Hire Period; or
    (C) injury to or death of any person.
    (vi) the Owner will throughout and following the Hire Period access Spidertracks and EMU data.
    4.5. HIRER WARRANTIES, OBLIGATIONS AND INDEMNITY
    (a) The Hirer warrants that it:
    (i) meets the Minimum Requirements; and
    (ii) can competently and safely start, operate and shut down the Helicopter;
    (iii) will not commence a start cycle of the engine more than once in any 0.70 collective hour period.
    (b) The Hirer will:
    (i) adhere to all applicable Laws including its obligations as a pilot in command;
    (ii) maintain the Helicopter in a clean and airworthy condition;
    (iii) where necessary, clean the Helicopter internally and externally to the same standard as it was as at the commencement of the Hire;
    (iv) allow the Owner access to the Helicopter as soon as practically possible if required by the Owner, acting reasonably;
    (v) immediately notify the Owner of:
    (A) any engine or other significant component malfunction, unusual operation, or other abnormal occurrence involving the shutting down of the engine during starting or operation;
    (B) any other damage sustained to or defect in the Helicopter or its operation;
    (C) particulars of any notice or proposal for a notice given made to or on the Hirer by any Authority or any person relating to the Helicopter or its use which may impact on the use of the Helicopter, or the Owner, or both.
    (c) The Hirer indemnifies the Owner from and against any liability, loss, damage, expense or claim which the Owner may incur, including to a 3rd party, during or after the Hire Period, in respect of or arising from:
    (i) loss, damage or injury to property or person occurring directly or indirectly out of the use of the Helicopter which was caused or contributed to by the Hirer’s use of the Helicopter;
    (ii) the negligent misuse, including Hirer Negligence, of the Helicopter by the Hirer;
    (iii) the Hirer’s failure to notify the Owner regarding any defect in the Helicopter.
    (d) The indemnities under this clause:
    (i) include penalties, fines, legal and other costs incurred by the Owner;
    (ii) do not apply when the loss, damage or injury was caused or substantially contributed to by the wilful or negligent act or omission of the Owner;
    (iii) do not apply where the Owner is indemnified for the loss or damage from monies paid or recovered under any policy of insurance effected by either the Hirer or the Owner.
  5. INSURANCE
    The Owner will pay for and maintain insurances for the Permitted Use.
  6. GENERAL
    6.1. JURISDICTION
    This Agreement is governed by the laws of Queensland and the parties submit to the non-exclusive jurisdiction of the courts of Queensland.
    6.2. ENTIRE AGREEMENT
    This Agreement is the entire agreement and understanding between the parties on everything connected with the subject matter of this Agreement, and supersedes any prior understanding, arrangement, representation or agreement between the parties as to the subject matter contained in this Agreement.
    6.3. AMENDMENT
    An amendment or variation to this Agreement is not effective unless it is in writing and signed by all parties.
    6.4. WAIVER
    (a) Any waiver by any party to a breach of this Agreement shall not be deemed to be a waiver of a subsequent breach of the same or of a different kind.
    (b) The exercise of a power or right does not preclude:
    (i) its future exercise; or
    (ii) the exercise of any other power or right.
    6.5. EVENTS BEYOND CONTROL
    Neither party shall be liable to the other for any loss caused by any failure to observe the terms of this Agreement where that failure is occasioned by causes beyond its reasonable control including without limit fire, flood, riot, strike, war, restrictions and prohibitions or any other actions by any government or semi government authority.