Terms and Conditions for the Hire of the Excavator between:
Definitions
(a) “Agreement” means these hire terms and conditions.
(b) “Customer” means you or the customer named in the Schedule.
(c) “Charge” means the charges as described in the Schedule or other charges required by Little Access Excavations PTY LTD from time to time.
(d) “Fee” means the fee for the hire of the hired equipment as described in the Schedule.
(e) “GST” means GST within the meaning of the A New Tax System (Goods and Services Tax) Act 1999 (Cth) (as amended).
(f) “Hired equipment” means the hire equipment described in the Schedule.
(g) “Hire Period” means the period as set out in the Schedule or as extended by agreement.
Hire Period
- Little Access Excavations PTY LTD has agreed to hire the hired equipment to the Customer for the Hire Period for the Fee on the terms and conditions of this Agreement.
- The parties may extend the Hire Period in writing, subject to the payment of the additional fees as agreed between the parties.
(d) The parties agree that if this Agreement is terminated, the Hire Period immediately terminates and the Customer must immediately return the Excavator.
Little Access Excavations PTY LTD Obligations
- Little Access Excavations PTY LTD must hire the equipment to the Customer in good working order with the full fuel tank of diesel at the commencement of the Hire Period, subject to the terms and conditions in this Agreement.
Fees and Charges
(a) In consideration of hiring the equipment, the Customer must pay Little Access Excavations PTY LTD the Fee for the Hire Period.
(b) The Fee must be paid to Little Access Excavations PTY LTD prior to or on the commencement of the Hire Period.
(c) If the Customer fails, for any reason including, but not limited to, loss, theft or damage, to return the hired equipment at the end of the Hire Period, then the Customer must pay the late return charge.
(d) If the Customer fails, for any reason to return the hired equipment without a full diesel tank, then the Customer must pay the Charges for Little Access Excavations PTY LTD to fill up the fuel tank.
(e) If the Customer does not return the hired equipment in a clean and good working condition, the Customer must pay Little Access Excavations PTY LTD the charges for the cleaning and repair of the Excavator.
(f) Little Access Excavations PTY LTD may charge the Customer a Charge for accepting payment ??>?>
Customer’s Warranties
The Customer warrants that:
(a) The Customer using the hired equipment is at least 18 years old.
(b) The customer understands that the use of the hired equipment is at its own risk. The Customer agrees that the hired equipment is provided “as is” and “as available” without warranty or condition of any kind;
(c) The Customer has the competency and knowledge to use and operate the chosen hired equipment.
(d) The Customer will obey all reasonable directions given by Little Access Excavations PTY LTD
(e) The customer will satisfy itself that the Little Access Excavations PTY LTD is suitable for the purpose for which it is hired.
(f) The customer will only operate the hired equipment for its intended use.
(g) The customer will comply with all manufacturer’s instructions and recommendations relating to the use of the hired equipment
(h) The customer will ensure that all persons operating the hired equipment are properly instructed in its safe and proper use.
(i) The customer will comply with all laws relating to the use of the hired equipment, including, but not limited to, holding at all times any operating licence or permit required by law to operate the hired equipment (if necessary).
(j) The customer will supply, at its own expense, all fuel necessary for the operation of the hired equipment and return the hired equipment with a full fuel diesel tank.
(k) The customer will notify Little Access Excavations PTY LTD immediately in the event that the hired equipment is lost, stolen or involved in an accident.
(l) The customer will return the hired equipment at the agreed place at the end of the Hire Period.
(m) The customer will return the hired equipment in a clean condition and in good repair and working order.
(n) The customer must not tamper with, damage, repair or lose part with possession of the equipment.
(o) The customer must not exceed the recommended or legal load and capacity limits of the equipment.
(p) The customer use or carry any illegal, prohibited or dangerous substance in or on the Equipment.
(q) The customer must not exceed the recommended or legal speed limit for the Equipment.
Limitation of Liability
(a) The Customer agrees that it will use and operate the hired equipment at the Customer’s risk.
(b) The Customer agrees that Little Access Excavations PTY LTD will have no responsibility or liability for any loss or damage to the Customer or to any of their property.
(c) Subject to this clause, and to the extent permitted by law:
(i) all terms, guarantees, warranties, representations or conditions which are not expressly stated in the agreement are excluded; and
(ii) Little Access Excavations PTY LTD will not be liable for any special, indirect or consequential loss or damage (unless such loss or damage is reasonably foreseeable resulting from our failure to meet an applicable Consumer Guarantee), loss of profit or opportunity, or damage to goodwill arising out of or in connection with the Agreement (including as a result of not being able to use the hired equipment or the late supply of the hired equipment), whether at common law, under contract, tort (including negligence), in equity, pursuant to statute or otherwise.
Indemnity
(a) To the full extent permitted by the law and unless such loss, damage, injury or death arises from the negligent act or omission of Little Access Excavations PTY LTD and its employees, agents and contractors (the “indemnified”), the Customer will indemnify and keep indemnified the indemnified against any loss or liability suffered or incurred.
(b) The Customer agrees to indemnify Little Access Excavations PTY LTD, its affiliates, employees, agents, contributors, third party content providers and licensors from and against:
(i.) all actions, suits, claims, demands, liabilities, costs, expenses, loss and damage (including legal fees on a full indemnity basis) incurred, suffered or arising out of or in connection with your use of the hired equipment.
(ii.) any breach of this Agreement;
(iii.) all claims and demands;
(iv.) any loss or damage whatsoever and whenever caused to the Customer whether by way of death of, or injury to, any person of any nature or kind, accident or damage to property, delay, financial or otherwise, arising directly or indirectly from the use of the goods or incidental to a breakdown of, or defect in, the hired equipment or any accident to or involving the equipment or their use, operation, repair, maintenance or storage or which may otherwise be suffered or sustained in, upon or near the hired equipment
(c) The release in this clause does not extend to that part of any loss or damage caused by the negligent, fraudulent, reckless or misleading acts or omissions on the part of the owner.
(d) The indemnities and assumptions of liability will continue in full force and effect the termination of this Agreement.
Disclaimer
(a) The use of the hired equipment is an inherently dangerous and hazardous activity that can result in damage to property and or personal injury (including death).
(b) The Customer accepts full responsibility for such inherent dangers and risks.
(c) The Customer will not sue Little Access Excavations PTY LTD for a loss including damage and or personal injury.
Damage to any of the hired equipment
(a) If the hired equipment does not operate or become unsafe to use as a result of the Customer’s acts or omissions, or if the hired equipment is lost, stolen or damaged beyond fair wear and tear during the Hire Period, the Customer will be liable for:
(i) any costs incurred by Little Access Excavations PTY LTD to recover and repair or replace the hired equipment; and
(ii) the Charges for that portion of the Hire Period during which the Equipment is being recovered and repaired or replaced.
Title
(a) The Customer must not sell, assign, let, sub-let, lend, pledge, mortgage, hire or otherwise encumber, part with possession of, alter, attempt to repair or deal with the hired equipment unless otherwise agreed with Little Access Excavations PTY LTD
(b) The Customer acknowledges that Little Access Excavations PTY LTD retains title to the hired equipment and that the Customer has rights to use the hired equipment
No Waiver
- Time is of the essence of this agreement, except that no delay by Little Access Excavations PTY LTD in exercising any right or power will operate as a waiver of that right or power. Nor will any single of partial exercise of any right or power preclude any other or further exercise of that right or power.
Notice
(a) A notice or other communication required or permitted to be given by one party to another must be in writing and is taken to have been given when (unless otherwise proved):
– Delivered personally, at the time it is delivered to the party;
– Sent by email to the email address of the addressee or such other email address notified as being the email address to use for the purposes of this clause:
(i) where the email is sent during a Business Hour on a Business Day, upon the return of a receipt which confirms successful transmission of the email to the email address of the recipient or, where no return receipt is produced by the recipient’s email system, by the end of the last Business Hour on the day the email was sent; or
(ii) where the email is sent after the end of the last Business Hour on a Business Day or on a non-Business Day, the email will be deemed to be received at the beginning of the first Business Hour on the next Business Day.
(b) The address for service of each party is set out in the details page. A party may change its address for service by giving notice of that change in writing to the other parties.
Termination of Contract
(a) Little Access Excavations PTY LTD may terminate this Agreement and repossess the hired equipment if:
(i) The Customer fails to pay the Fee or any additional Charges;
(ii) The Customer breaches this Agreement or intends to breach any provision;
(iii) Little Access Excavations PTY LTD is required to do so by law;
(iv) The Customer commits any act of bankruptcy, insolvency, enters into any arrangement with creditors or enters into liquidation or is wound up.
(b) Little Access Excavations PTY LTD will have an immediate right to possession of the hired equipment and payment of any amounts owed by the Customer including any Fees, Charges, costs or expenses incurred by Little Access Excavations PTY LTD in respect of the termination.
Governing Law
(a) The agreement is governed by the laws of New South Wales, Australia.
(b) Any dispute, controversy, proceeding or claim of whatever nature arising out of or in any way relating to the Agreement shall be governed, interpreted and construed by, under and pursuant to the laws of New South Wales, Australia.