Terms & Conditions

BACKGROUND

(A)  The Owner is the proprietor of the equipment listed in the Schedule to this Agreement.

(B)  The Hirer will hire the Equipment specified in the Schedule from the Owner upon the terms and conditions in this Agreement.

OPERATIVE PROVISIONS

Hire of Equipment

(a)   The hiring of the Equipment will commence from the commencement date specified in the Schedule and continue for the term specified in the Schedule.

(b)   The Hirer is entitled to use the Equipment for the hire period as outlined in the Schedule and for any agreed extension of the period.

(c)   The Hirer agrees to return the Equipment to the address of the Owner or make available for collection if delivered, on or before the end of the Hire Period as outlined in the Schedule.

(d)   The Owner will not refund any hire fee monies if the Hirer elects to return the Equipment prior to the end of the Hire Period, regardless of reason.

Payment for rental

(a)   The Hirer agrees to pay the Owner the hire fee specified in the Schedule for the Equipment for the Hire Period, which includes any applicable GST.

(b)   The Hire Fee must be paid to the Owner prior to or on the commencement date of the Hire Period.

(c)   The Hirer must pay a security deposit of 1 day of the  of the Hire Fee upon booking, which the Owner will hold as security against damage, loss, non-return of the Equipment, or breach of this Agreement, and the Owner may offset any outstanding amounts, damage claims, or cleaning costs against the deposit before refunding any surplus within 5 days after the end of the Hire Period.

Completion of the Hire Period

The Hire Period is completed when the Equipment has been returned to the Owner:

(a)   in the same condition as when it was hired; and

(b)   on or by the date and time outlined in the Schedule.

(c)   Subject to late fees of the daily Hire Fee for each day or part day the Equipment is returned after the due date and time.

Use, operation and maintenance

(a)   The Hirer agrees that the use of the Equipment carries with it dangers and risks of injury and the Hirer agrees to accept all dangers and risks.

(b)   The Equipment must not be used by anyone other than the Hirer. The Hirer will use the Equipment in a good and careful manner and will comply with all of the manufacturer's requirements and recommendations, respecting the Equipment and with any applicable law, whether local, state or federal respecting the use of the Equipment, including, but not limited to, environmental and copyright law.

(c)   The Owner has the right to inspect the Equipment at any time during the Hire Period upon providing the Hirer with reasonable notice of at least 2 hours. The Hirer must make the Equipment available for inspection and provide access to the location where it is stored or used. The Owner may photograph or video record the Equipment's condition during inspections. If inspection reveals breach of use conditions, the Owner may require immediate remediation or terminate this Agreement. Inspection findings will be documented in writing and provided to the Hirer within 5 business days.

(d)   The Hirer will use the Equipment for the purpose for which it was designed and not for any other purpose.

(e)   The Hirer agrees to comply with all occupational health and safety laws relating to the use of the Equipment and related operations.

(f)    The Hirer must ensure the Equipment is returned to the Owner thoroughly cleaned. In the event that the Equipment is not thoroughly clean when returned to the Owner, the Hirer will pay the Owner the reasonable costs for cleaning the Equipment.

(g)   The Hirer must return the equipment with a full tank of fuel.

(h)   The Hirer must carry out daily pre-start checks of the equipment.

(i)    The Hirer must make available the equipment for scheduled maintenance to be carried out as per the manufacturer’s specifications or within no more than 2 days or 10 hours of use past the due interval, if such maintenance is required during the hire period.

(j)    Unless the Hirer obtains the prior written consent of the Owner, the Hirer must not alter, modify or attach anything to the Equipment unless the alteration, modification or attachment is easily removable without damaging the functional capabilities or economic value of the Equipment.

Hirer’s warranties

The Hirer warrants that:

(a)   the Equipment will be used in accordance with the conditions outlined in the Schedule;

(b)   the particulars in the Schedule are correct in every respect and are not misleading in any way including, without limitation, by omission;

(c)   the Hirer holds a valid current driver’s licence, operating licence or permit valid for the type of Equipment hired;

(d)   the Equipment will not be used for any illegal purpose;

(e)   the Hirer’s vehicle is suitable for towing or transporting the Equipment;

(f)    the Hirer will not, without prior written consent of the Owner, modify, or permit any modification of, the Equipment in any way;

(g)   the Hirer agrees that the Equipment complies with its description, is in merchantable condition and is fit for the Hirer’s purpose; and

(h)   the Hirer will not encumber the Equipment or allow the Equipment to be encumbered or pledge the Equipment as security in any manner.

Loss, damage or breakdown of Equipment

(a)   The Hirer will be responsible for any loss or damage to the Equipment irrespective of how the loss or damage occurred (normal wear, tear and manufacturing defects excepted) during the Hire Period.

(b)   If there is a breakdown or failure of the Equipment, the Hirer must immediately cease use of the Equipment. The Hirer must not attempt to repair the Equipment.  The Owner must be notified and the equipment made available to be repaired.

(c)   For the purposes of this Agreement, 'normal wear and tear' means minor deterioration resulting from ordinary use of the Equipment, including superficial scratches, minor paint wear, and gradual mechanical wear consistent with the Equipment's age and usage. The Hirer will not be liable for such normal wear and tear, but remains liable for damage including but not limited to dents, cracks, broken components, excessive wear beyond normal usage patterns, or any damage requiring repair or replacement.

(d)   Upon return of the Equipment, the Owner will inspect and document any damage beyond normal wear and tear within 3 business days, including photographs and written descriptions.

Insurance

(a)   The Owner will maintain current insurance policies in respect of the Equipment to its full insurable value.

(b)   The Hirer must maintain current public liability insurance with minimum coverage of $10,000,000 for the duration of the Hire Period, and must provide the Owner with a current Certificate of Currency before equipment release, naming the Owner as an interested party and notify the Owner within 2 hours of any incident that may give rise to a claim.

(c)   The Hirer's public liability insurance must be primary coverage for all third-party claims arising from the Hirer's use of the Equipment. The Owner's insurance covers Equipment damage from normal operation only. Each party waives all rights of subrogation against the other party and their respective insurers in relation to any loss or damage covered by their respective insurance policies.

Liability

The Hirer will assume all risks and liabilities for and in respect of the Equipment and for all injuries to or deaths of persons and any damage to property howsoever arising from the Hirer’s possession, use, maintenance, repair or storage of the Equipment.

Indemnity

(a)   The Hirer will indemnify and hold harmless the Owner against any and all claims, actions, suits, proceedings, costs, expenses, damages and liabilities, including attorney's fees and costs, arising out of or related to the Hirer's use of the Equipment.

(b)   The Hirer's indemnity obligation under this Agreement does not extend to claims arising from the Owner's negligence, breach of this Agreement, or failure to maintain the Equipment in safe working condition. The Hirer's total liability under the indemnity will not exceed the replacement value of the Equipment or the total hire fees paid under this Agreement, whichever is greater.

Disclaimer

To the extent permitted by law the Owner disclaims all liability for and does not give any warranties to the Hirer as to the condition of the Equipment.

Title

(a)   The Hirer acknowledges that the Owner retains title to the Equipment and that the Hirer has rights to use the Equipment as a mere bailee only. The Hirer does not have any right to pledge the Owner’s credit in connection with the Equipment and agrees not to do so.

(b)   The Hirer agrees not to agree, offer or purport to sell, assign, sub-let, lend, pledge, mortgage let, hire or otherwise part with possession of the Equipment.

Repossession

a)    The Owner may retake possession of the Equipment if the Hirer breaches any provision of this Agreement, notwithstanding anything else contained in this Agreement.

b)    If repossession occurs, the Owner will only charge the Hire Fee up to and including the time of repossession.

c)    The Owner will provide the Hirer with 2 business days' written notice to remedy any breach capable of remedy before exercising the right to repossess the Equipment, except where the breach involves illegal use, imminent risk of loss or damage, abandonment, or insolvency.

Default

(a)   The occurrence of any one or more of the following events will constitute an event of default under this Agreement:

1.    The Hirer fails to pay any amount provided for in this Agreement when such amount is due or otherwise breaches the Hirer's obligations under this Agreement.

2.    The Hirer becomes insolvent or makes an assignment of rights or property for the benefit of creditors or files for or has bankruptcy proceedings instituted against it under the bankruptcy law of Australia or another competent jurisdiction.

3.    A writ of attachment or execution is levied on the Equipment and is not released or satisfied within 10 days.

4.    The Hirer uses the Equipment for illegal purposes, abandons the Equipment, or removes the Equipment from Australia without the Owner's prior written consent.

Remedies

(a)   On the occurrence of an Event of Default, the Owner will be entitled to pursue any one or more of the following remedies:

1.    Declare the entire amount of the Rent for the Term immediately due and payable without notice or demand to the Hirer.

2.    Commence legal proceedings to recover the Rent and other obligations accrued before and after the Event of Default.

3.    Take possession of the Equipment, without demand or notice, wherever same may be located, without any court order or other process of law. The Hirer waives any and all damage occasioned by such taking of possession.

4.    Terminate this Agreement immediately upon written notice to the Hirer.

5.    Pursue any other remedy available in law or equity.

6.    Require the Hirer to pay all reasonable costs incurred by the Owner in exercising remedies, including repossession, storage, legal fees, and collection costs.

Non-merger

The covenants, agreements and obligations contained in this Agreement will not merge or terminate upon the termination of this Agreement and to the extent that they have not been fulfilled or satisfied or are continuing obligations they will remain in force and effect.

Severance

If any provision of this Agreement is wholly or partly invalid, unenforceable, illegal, void or voidable, this Agreement must be construed as if that provision or part of a provision had been severed from this Agreement and the parties remain bound by all of the provisions and part provisions remaining after severance.

Governing law

This Agreement will be construed in accordance with and governed by the laws of Queensland. Each party submits to the non-exclusive jurisdiction of the courts of Queensland there in connection with matters concerning this Agreement.

Interpretation

(a)   In this Agreement, unless the context otherwise requires:

1.    A reference to the singular includes the plural and vice versa;

2.    A reference to any party to this Agreement includes the party’s executors, administrators, successors or permitted assigns, and where applicable, its servants and agents;