Terms and Conditions
Conditions of Hire – overview
The Hirer must:
- Pay the excess amount on any insurance claim for damage or loss during the hiring period (see 3.5 in Standard Terms & Conditions of Hire).
- Ensure the engine oil, hydraulic oil, coolant levels and other normal service items are regularly checked and maintained to the equipment manufacturer’s specifications in order to ensure the efficient performance of the equipment.
- Maintain the equipment in good and substantially clean condition and return the equipment in a clean condition. Charges will apply for failure to do so.
- Only operate the equipment by a suitable trained, licensed, experienced and (if necessary) certified operator and ensure equipment is operated in accordance with the Operator’s Manual and the Owner’s instructions.
- Only use the Equipment for the purpose for which is was designed, in suitable terrain and in a manner which has regard to the capacity, capabilities and limitations of the Equipment.
- At all times store the Equipment safely and protected from theft, loss or damage.
- Immediately report any faults to the Owner.
- Immediately stop using the Equipment if the Equipment breaks down, becomes unsafe to operate or the visible/audible warning system activates signalling a fault.
- Not repair or attempt to repair the equipment without the Owners prior written consent.
- Not haul incorrectly loaded goods or use the equipment other than the purposes and within the limits for which the equipment was constructed.
- Not disconnect or alter hour meter readings.
- Pay any delivery or collection charges if the Hirer organises or causes the rental to commence or terminate anywhere other than at the specified premises of the Owner.
- Return the equipment within the agreed time. Late fees will apply.
Return with a full tank of correct fuel as per manufacturer’s recommendation. Charges will apply for failure to do so.
Conditions of Hire – detailed
1.0 In these Terms and Conditions (Terms):
1.1 Owner means Earthmoving Logistics & Hire ABN and where appropriate includes its employees, agents and contractors.
1.2 Hirer means the person or body corporate hiring the equipment from the Owner.
1.3 Equipment means the Owner’s equipment hired out to the Hirer and all parts, tyres, tools, accessories and equipment in or fitted to the equipment.
1.4 the Agreement constitutes the entire agreement between the parties. The Owner may amend or replace the Agreement (including hire charges) by written notice to the Hirer. Any and all subsequent hiring of Equipment will be on the amended or replaced Terms.
1.5 the Guarantee means the guarantee and indemnity that the guarantor gives if the Hirer is a corporate entity.
2 The Owner will:
2.1 Allow the Hirer to take and use the equipment for the hire period.
2.2 Provide the equipment to the Hirer in good working order and condition.
2.3 Terminate this Agreement, sue for recovery of the charges and re-possess the equipment if:
2.3.1 the Hirer fails to pay any charges
2.3.2 the Hirer becomes bankrupt, insolvent or ceases business.
2.4 In the event the Equipment breaks down or becomes unsafe to use through no fault, negligence, recklessness or misuse of the Hirer, the Owner will:
2.4.1 take all necessary steps to repair the Equipment as soon as reasonably possible after being notified by the Hirer;
2.4.2 not impose a hire charge for that portion of the hire period for which the Equipment was broken down or unsafe, nor the costs associated with any repair of the Equipment; and
2.4.3 not be liable for expenditure, damages, loss or inconvenience incurred by the Hirer arising from breakdown of the Equipment, however caused.
3 The Hirer will:
3.1 Pay the hire fees, including GST, repairs and other expenses set out in these Terms as required by the Owner.
3.2 The Hirer, being a corporate entity, or engaged in trade and commerce, must take out and maintain at its own cost for the period of the agreement insurance cover for:
3.2.1 indemnity cover of not less than the new replacement cost of the equipment; and
3.2.2 third party and public liability insurance of not less than $10 million indemnifying the Owner against all loss and damage; however, caused.
3.2.2 understand and accept charges for LOSS AND DAMGAE WAIVER is automatically included on the Owners charges for any Equipment hired; charged at the rate of 5% of hire charge
3.2.3 provide director’s guarantees.
3.4 Pay the excess amount on any insurance claim for damage or loss during the hiring period.
3.5 Where LOSS AND DAMAGE WAIVER charges have been charged to the Owner, the Hirer agrees upon prompt submission of the Police Report, to waive it’s right to claim for loss and damage to the Equipment caused by fire, storm, collision accident, theft or burglary, providing adequate precautions have been taken in safeguarding the Equipment and the loss and damage was not incurred due to negligence by the Hirer (refer conditions in clause 8, Miscellaneous). Such waiving or rights is subject to payment by the Hirer of an excess of:
3.5.1 In the event of the loss of Equipment:
$2,500 per item or 1% of the insured value of the Equipment item (whichever is the greater). The Owner reserves the right to claim additional costs associated with the loss of Equipment if the excess applied to any and all claims is increased due to issues of age, experience and type of use.
3.5.2 In the event of the damage to Equipment:
$2500 per item or 1% of the insured value of the Equipment item (whichever is the greater). The Owner reserves the right to claim additional costs associated with the loss of Equipment if the excess applied to any and all claims is increased due to issues of age, experience and type of use.
3.6 Pay on demand interest at the rate of 2% per month on any overdue amounts.
3.7 Pay all the Owner debt collection or legal expenses (on a full indemnity basis) incurred in recovering or attempting to recover any debt from the Hirer.
3.8 Ensure the engine oil, hydraulic oil, coolant levels and other normal service items are regularly checked and maintained to the equipment manufacturer’s specifications in order to ensure the efficient performance of the equipment.
3.9 Cleaning and Maintenance:
3.9.1 the Hirer will at its own expense maintain the equipment in good and substantially clean condition and return the equipment in a clean condition.
3.9.2 undertake all preventative maintenance, servicing and minor running repairs (including electrical, hydraulic and hoses and oil leaks) in accordance with manufacturers specifications, and
3.10 Pay for any damage to the equipment, excluding fair wear and tear.
3.11 At any time return the equipment at the requested of the Owner.
3.12 The Hirer must ensure that the equipment is:
3.12.1 operated by a suitable trained, licensed, experienced and (if necessary) certified operator and is operated in accordance with the Operator’s Manual and the Owner’s instructions;
3.12.2 returned to the Owner in the same condition as when received (except for normal wear and tear) and returned with a full tank of fuel or the Hirer will pay the Owner the Cost of filling that tank;
3.12.3 used for the purpose for which is was designed, in suitable terrain and in a manner which has regard to the capacity, capabilities and limitations of the Equipment;
3.12.4 at all times stored safely and protected from theft, loss or damage.
3.13 Report to the Owner, any faults noticed:
3.13.1 if the Equipment breaks down, becomes unsafe to operate or the visible/audible warning system activates signalling a fault the Hirer must immediately stop using the Equipment, ensure it does not sustain any further damage and prevent the Equipment from causing injury, loss or damage to any person or property;
3.13.2 the Hirer must not repair or attempt to repair the equipment without the Owners prior written consent.
3.14 The Hirer must comply with all:
3.14.1 statutory laws and regulations and all common law relating to the use of the Equipment.
3.14.2 Occupational Health & Safety laws relating to the equipment and its operation.
3.15 Indemnify the Owner for:
all loss, damage or expenses caused to persons and property in relation to the equipment and its operation; the cost or repairs caused carelessly or deliberately by the Hirer or any other operator; the cost of the damage, loss or expense arising from any breach by the Hirer of these Terms; the cost of necessary repairs to the equipment, unless the damage is attributed to a specific event for which the Owner receives insurance cover.
3.18 Risk in the equipment passes to the Hirer on delivery of the Equipment and remains with the Hirer until the Equipment is collected by or returned to the Owner.
4 The Hirer will not:
4.1 damage or abuse the equipment;
4.2 haul incorrectly loaded goods or use the equipment other than the purposes and within the limits for which the equipment was constructed;
4.3 lose possession of the equipment or lend or hire the equipment to another party; or
4.4 disconnect or alter hour meter readings.
5 The Hirer agrees with the Owner and acknowledges that:
5.1 the Owner remains the sole owner of the equipment during the period of hire;
5.2 the equipment is in good general working condition at the commencement of hire;
5.3 it is not entitled to recover from the Owner, compensation for any damage or consequential loss arising from the hiring or use of the equipment;
5.4 the Owner is not responsible for any damages to or loss of any property whatsoever and however caused, unless that loss or damage results solely from the Owner’s negligence or intentional act;
5.5 except in respect of cover provided by the third party property insurance, the Hirer will be responsible for any loss or damage caused by or to third parties through use of the equipment by the Hirer or with its permission; the amount of loss or damage to the equipment means the cost of repairs or the market value of the equipment at the time of loss, whichever is less, plus our administrative, appraisal, legal and recovery costs, loss of use and other related expenses incurred as a result of the damage;
5.6 delivery or collection charges will apply if the Hirer organises or causes the rental to commence or terminate anywhere other than at the specified premises of the Owner.
5.7 if any provision in these Terms is unenforceable at law, then that provision may be served without affecting any other part.
6 If the Hirer breaches this agreement, the Owner is authorised to enter any premises or property where the equipment is located and recover the equipment. The Hirer agrees to indemnify the Owner for its repossession of the equipment.
7.1.1 GST means any tax or levy imposed by the Commonwealth of Australia on the supply of goods and services in Australia together with any related interest, penalty, or other charge imposed by or under a GST Law.
7.1.2 GST Law means A New Tax System (Goods and Services Tax) Act 1999.
7.1.3 GST Exclusive Consideration means the rentals, charges and other amounts (other than GST) specified in these Terms as payable by the Hirer.
7.1.4 Supply means any supply as defined in GST Law.
7.2 The GST Exclusive Consideration is calculated not to include GST.
7.3 In addition to the GST Exclusive Consideration, the Hirer must pay or reimburse to the Owner an amount equal to the GST charged to the Owner from time to time in respect of Supply under this Agreement.
7.4 GST will be payable by the Hirer without deduction or set-off at the same time(s) as the GST Exclusive Consideration.
8.1 The Hirer authorises the Owner to obtain a report from a Credit Reporting Agency or other Credit provider which contains details of the Hirer’s personal and commercial credit information, for the purpose of this hiring in accordance with section 18E(8)(C) of the Privacy Act 1988.
8.2 The Owner gives no warranty to the Hirer in relation to the condition or capabilities of the equipment expect as implied by the Australian Consumer Law or by any other law. Where those laws allow the Owner to limit liability for breach of an implied conditional warranty, the Owner limits the implied condition to replacement, repair or resupply, at its sole discretion. In particular, the Owner will not be liable to the Hirer or any other person for any indirect or consequential loss or damage.
8.3 Expressly excluded from the LOSS AND DAMAGE COVER (Clause 3.5) is loss or damage as defined below:
8.3.1 Damage due to misuse, abuse or overloading of the Equipment.
8.3.2 Mysterious disappearance or wrongful conversion of the Equipment.
8.3.3 Loss or damage in contravention of the conditions of this hire agreement.
8.3.4 Loss or damage from use in violation of any statutory laws and regulations.
8.3.5 Loss or damage of tools, accessories, grease guns, hoses, and any other similar accessories.
8.3.6 Damage caused to tyres and tubes by blowout, bruises, cuts or other causes inherent in the use of the Equipment.
8.3.7 Loss or damage relating to lack of lubrication or other normal servicing of Equipment.
8.3.8 Loss or damage to the Equipment whilst located, used, loaded, unloaded, transported on or over water, wharves, bridges or vessels of any kind.
8.3.9 Loss or damage to motors or other electrical appliances or devices caused by overloading or artificial electric current.
8.3.10 Damage caused by exposure to any corrosive substance e.g. caustic cyanide, salt water, acid etc.
8.3.11 Theft of the Equipment, unless reasonably locked and secured.
8.3.12 Loss or damage during transport, expect where transported by the Owner.
8.3.13 Loss or damage to items on which the LOSS AND DAMAGE COVER premium is not charged.
8.3.14 Any loss or damage caused by the negligence of the Hirer.
8.4 The Hirer will be charged for the full replacement or repair cost (whichever is deemed appropriate) for all “excluded” LOSS AND DAMAGE COVER items, as per clause 8.3 above.
8.5 Any notice, invoice or document for the Hirer will be deemed sufficiently served if posted by ordinary pre-paid post addressed to the Hirer, and will be deemed to have been received by the Hirer in the ordinary course of post.
8.5 This Agreement incorporates the entire understanding between the Hirer and the Owner in relation to hiring of the Equipment.
8.6 In consideration of the Owner agreeing to supply the Hirer with the Equipment the Guarantor agrees to be responsible to the Owner for the hire and all costs, legal fees and interest which may become payable, including all loss and damage arising out of the hire and agrees to indemnify and hold harmless the Owner from the date of this guarantee until the equipment is returned and all costs, loss and damage are paid. This guarantee is a continuing guarantee and indemnity and security and the Guarantor’s liability under it is not affected by giving time or any other indulgence to the Hirer.
8.7 This Agreement is governed by and will be construed in accordance with the laws of Victoria and the parties submit to the non-exclusive jurisdiction of Victoria courts.