NOTE TO CUSTOMERS: This Agreement is a claim for payment under the Building and Construction Industry Security of Payment Act 1999. 1. DEFINITIONS (a) CHARGES: All of the amounts listed in clause 3. (b) COMMENCEMENT: The time when the Customer takes possession of the Equipment. (c) EQUIPMENT: The equipment, tools, Motor Vehicles (including accessories) hired to the Customer. (d) HIRE PERIOD: The period from Commencement until the Equipment is returned to the Company. NOTE TO CUSTOMER: You are responsible for the Equipment until it is back in the possession of the Company, even after obtaining a Customer Pick Up Number. (e) THE COMPANY: The Companies listed on the front page of this Agreement. (f) KILOMETRE CHARGE: The amount payable for the kilometres that a Motor Vehicle has, in the reasonable opinion of the Company, travelled during the Hire period. (g) MOTOR VEHICLE: A truck, utility or trailer but not any other equipment such as a scissor lift or bobcat. The Company Obligations The Company will; 2.1 allow the Customer to take and use the Equipment until it is due back; 2.2 provide the Equipment to the Customer clean and in good working order; 2.3 where the Equipment is a Motor Vehicle, arrange comprehensive motor vehicle accident damage insurance. That insurance will NOT cover the customer for the following; (a) If the driver is over 25 the first $2,000.00 of the cost of any damage, (b) If the driver is under 25 the first $2,500.00 of the cost of any damage; (c) The loss or theft of Motor Vehicle, (d) Costs of repairing damage:
- to a truck above the top of the cabin; or
- to or caused by a truck mounted loading device;
- to tyres;
- caused other than by the normal use of the Motor Vehicle;
- caused while the Motor Vehicle is being driven on any road that is unsealed or is not a public road;
- caused while the Customer is in breach of any clause of this Agreement.
2.4 subject to any clause 3.2 be responsible for repairing any damage to the Equipment (that is not a Motor Vehicle) caused by the ordinary use of the Equipment by the Customer; 2.5 re-supply or repair the Equipment if it fails to operate properly; 2.6 collect the Equipment within 5 days of being requested to do so by the Customer and issuing the Customer a Customer Pick up Number. NOTE TO CUSTOMER: You must return the Equipment when due back unless you obtain a customer Pick up Number from the Company. 3. Payments made by the Customer to the Company. 3.1 On or before Commencement (or as provided in the Customer's Credit Application with the Company), the customer will pay the Hire Fees. 3.2 Immediately on request by the Company, the Customer will pay; (a) the new list price of any Equipment which is for whatever reason not returned the Company (NOTE TO CUSTOMER: You are responsible for loss or theft of the Equipment), (b) all costs incurred in Cleaning the Equipment, (c) all costs of repairing any damage caused by the ordinary use of the Equipment (that is not a Motor Vehicle) (d) the cost of repairing any damage to the Equipment caused by the negligence of the Customer or the Customer's agent; (e) the cost of repairing any damage to the Equipment caused by Vandalism, or (in The Company's reasonable opinion) in any way whatsoever other than by the ordinary use of the Equipment by the Customer, (f) the amount not covered by the insurance referred to in clause 2.3, (g) stamp duties, Goods and Services Tax, any other taxes or duties and all tolls fines, penalties, levies or charges payable in respect of this Agreement and the hiring, (h) all costs incurred by the Company in delivering and recovering possession of the Equipment, (i) a late payment fee calculated daily at 10% per month on all unpaid Charges, (j) the Kilometre Charge, and any additional Hire Fees, (k) the cost of fuels and consumables provided by the Company and used by the Customer, (l) any expenses or legal costs (including commission payable to a commercial agent) incurred as a result of the failure of the Customer to pay any Charges when due, (m) all costs of repairing or replacing tyres, including road service. 4. Return of Equipment by the Customer to the Company The Customer will; 4.1 deliver the Equipment to the Company when it is due back; 4.2 return the Equipment to the Company clean and in good repair. 5. Other Obligations of the Customer The Customer will; 5.1 satisfy itself at Commencement that the Equipment is suitable for its purposes, 5.2 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 the Company or posted on the Equipment, 5.3 indemnify the Company for all damage caused to persons and property in relation to the Equipment and its operation and have insurance to cover any legal liabilities incurred as a result of the use of the Equipment, 5.4 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 to use it, 5.5 comply with all occupational health and safety laws relating to the Equipment and its operation, 5.6 safely secure all items loaded in or on the Equipment or in or on the Customer's Vehicle, 5.7 operate the Equipment with an adequate motor vehicle and/or power source. The Customer will NOT; 5.8 tamper with, damage or repair the Equipment, 5.9 lose possession of Equipment, 5.10 rely upon any representation relating to the Equipment or its operation other than those contained in this Agreement, 5.11 allow any person to drive a Motor Vehicle if the person; (a) does not hold an unrestricted license to drive that class of Motor Vehicle, or (b) is affected by drugs and/or alcohol. 5.12 exceed the recommended or legal load and capacity limits of the Equipment, 5.13 use or carry any illegal, prohibited or dangerous substance in or on the Equipment. 5.14 travel outside the State where the Equipment is hired unless the Company approves the destination. 6. Customer not to Claim Damages The Customer cannot recover from the Company compensation for any damages (including for consequential loss) arising in respect of this Hire Agreement or the hiring or the use of the Equipment. 7. Breach of Hire Agreement by Customer If the Customer breaches any clause whatsoever of this Agreement, or becomes bankrupt, insolvent or ceases business, then; 7.1 The Company shall be entitled to (a) terminate this Agreement, and/or (b) sue for recovery of the Charges, and/or (c) repossess the Equipment (and is authorised to enter the Customer's premises to do so); 7.2 The insurance referred to in Clause 2 is immediately invalidated; 7.3 The Customer must pay for any repairs to the Equipment despite Clause 2.4. 8. No Warranties All warranties and conditions are excluded to the full extent permitted by law and the Company's only obligation resulting from a breach by it of any condition or warranty is limited to the supplying of the Equipment again or to the repair of the Equipment. 9. Disputes If a dispute arises relating to this Agreement, the hiring or the use of the Equipment (except in regard to the payment of Charges), the parties agree to negotiate to settle the dispute with the assistance of the Hire and Rental Association of Australia before litigation.