Terms and Conditions of Hire | Dig It Machinery Hire

K & M Gordon Holdings Pty Ltd as trustee for The K & M Gordon Trust trading as Dig It Machinery Hire hereinafter called "Dig It Machinery Hire” sets out the terms and conditions binding upon every customer to whom this contract is addressed (each of whom is hereinafter called "The Hirer" ) and constitutes the Agreement between Dig It Machinery Hire and the Hirer in relation to the hiring of the equipment described on the face of this contract.

Agreement Effective

The application of this Agreement extends to all Equipment supplied by Dig It Machinery Hire before the date this Agreement is duly executed by both parties.

Hire Period

The Hirer has agreed to hire the Equipment from Dig It Machinery Hire and Dig It Machinery Hire has agreed to hire the Equipment to the Hirer, for the Hire Period on the terms and conditions of this Agreement commencing at the start of the Hire Period.

Should this Agreement continue after the expiration of the Hire Period, the Agreement will continue on a day by day basis in accordance with the terms set out in this Agreement, and can be terminated by either party with the provision of 2 days written notice.

Delivery, Return and Ownership

At the Hirer’s cost, Dig It Machinery Hire will deliver equipment and pick up the Equipment for return at the expiration or earlier termination of this Agreement.

Dig It Machinery Hire is not liable for any delay in delivery or refusal to deliver the Equipment.

Title to the Equipment provided to the Hirer remains at all times with Dig It Machinery Hire.

The Equipment is at the Hirer’s risk on and from delivery of the Equipment to the Hirer.

The Hirer warrants that on termination of this Agreement it will maintain no rights (equitable or legal) in the Equipment.

The Hirer must return the Equipment to Dig It Machinery Hire in the same clean condition and good working order it was in when the Hirer received it, ordinary fair wear and tear excluded. If the Hirer does not properly clean the Equipment or in Dig It Machinery Hire’s view (acting reasonably) the Equipment is not decontaminated, Dig It Machinery Hire will charge the Hirer a cleaning cost and the Hirer will be liable to continue to pay the Hire Charges for that portion of the Hire Period during which the Equipment is being cleaned by Dig It Machinery Hire (and notwithstanding that the Hirer may have provided a clearance report that the Equipment is not contaminated).

The hirer is liable for any damage caused or allowed to the equipment by the hirer and for the payment of the full replacement value of any equipment not returned to the owner.

Rent Payments for Hire of The Equipment

The Hirer will pay to Dig It Machinery Hire the Rent in accordance with the Details.

If payment is made otherwise than personally and in cash to Dig It Machinery Hire, payment will not be taken to have been made until Dig It Machinery Hire receives the money in cleared funds.

If any Rent is not paid by the Hirer on or before the relevant due date, the Hirer must pay interest calculated daily at the rate set out in the Details on that outstanding amount for the period from and including the day on which it fell due for payment, but excluding the day on which that outstanding amount is paid in full.

The Hirer is not entitled to withhold any payments or make any deductions from any payment even if the Hirer claims to have a right of set-off or counterclaim of any nature.

Once this Agreement is in effect, on the provision of 5 days written notice to the Hirer, Dig It Machinery Hire may increase the Rent where:

a new tax, duty or other impost is incurred by Dig It Machinery Hire; or

any work to the Equipment is required by a law, regulation or direction of a government authority, but the increase in Rent must only be commensurate to the increased costs or expenses of Dig It Machinery Hire as a result of those events.

If the Hirer does not consent to the Rent increase pursuant to this clause the Hirer may terminate this Agreement and promptly return the Equipment, at its cost, to Dig It Machinery Hire.

Fitness For Purpose

The Hirer warrants that, at the start of the Hire Period, the Hirer has satisfied itself that:

the Equipment is fit for the purpose for which it is being hired;

the Equipment is suitable to enable the Hirer to use the Equipment in the conduct of its business; and

the Equipment complies with its description in this Agreement, as well as its condition, specifications, quality and safety.

Acknowledgements By the Hirer

The Hirer acknowledges that:

this Agreement is for dry hire only, and that no operator will be provided by Dig It Machinery Hire;

Dig It Machinery Hire is not the manufacturer of the Equipment;

in choosing the Equipment the Hirer did not rely upon:

anything that Dig It Machinery Hire may have told the Hirer about the Equipment; or

any information that Dig It Machinery Hire may have given the Hirer about the Equipment;
in deciding to sign this Agreement the Hirer did not rely upon:

anything that Dig It Machinery Hire may have told the Hirer about this Agreement; or

any information that Dig It Machinery Hire may have given the Hirer about the Hirer's rights and duties under this Agreement, this Agreement's effect on the tax position of the Hirer or this Agreement's treatment for accounting purposes for the Hirer.

Use Of Equipment

The Hirer must use the Equipment with reasonable care and only for the purposes for which it is intended and in accordance with any operator’s manual supplied by Dig It Machinery Hire, subject to the terms and conditions of this Agreement.

The Hirer will be responsible for damage to the Equipment if it is used for any purpose other than that for which it was expressly hired.

The Hirer will, at its own risk and expense, operate the Equipment only by competent, and where appropriate, qualified, trained and licenced personnel and by appropriate methods and standards of operation.

The Hirer will be responsible for daily checks and topping up of all oils, coolants, etc., tyres pressures, etc., to ensure safe operation of Equipment.

The Hirer must not move the Equipment from the Premises without the written consent of Dig It Machinery Hire.

The Hirer must not alter the Equipment or any marks or numbers on the Equipment.

The Hirer must not, without the written consent of Dig It Machinery Hire, paint or display any signs or advertising on the Equipment. If consent is provided by Dig It Machinery Hire, the Hirer must remove any such signs and restore the Equipment to the satisfaction of Dig It Machinery Hire prior to termination or expiration of this Agreement.

Lend/Re Hire of Equipment

The Hirer must not lend, re-hire, cross-hire, sublet or part with possession of the Equipment to any third party

Maintenance Of Equipment

The Hirer will during the Hire Period and at its own cost keep and maintain the Equipment in good working order and condition and in good repair, fair wear and tear excepted.

Should the Equipment suffer major breakdown while on hire due to fair wear and tear, the Hirer must immediately notify Dig It Machinery Hire of such breakdown. No action can be taken by the Hirer to effect repairs in relation to such breakdown until approval has been given by Dig It Machinery Hire to the carrying out of the necessary repairs.

Damage Of Equipment

If the Equipment is damaged during the Hire Period to an extent which renders the Equipment unfit for use by the Hirer, the Hirer must:

give Dig It Machinery Hire notice in writing providing full details of such loss or destruction;

continue to make the Rent payments for the remainder of the Hire Period (which the Hirer agrees is a genuine pre-estimate of the loss Dig It Machinery Hire will suffer as a result of such damage); and

at the cost of the Hirer, repair or replace the Equipment to the reasonable satisfaction of Dig It Machinery Hire.

Inspection Of Equipment

The Hirer will allow Dig It Machinery Hire complete and uninterrupted access to inspect the Equipment, provided that reasonable notice of the inspection is given to the Hirer.

Modification Of Equipment

The Hirer will not without the prior written consent of Dig It Machinery Hire make any addition, replacement or alteration to the Equipment.

Compliance With Statutory Requirements

In using the Equipment, the Hirer will, at its own cost, comply with the provisions of any legislation and any regulation or order made under such legislation which apply to the safe use and operation of the Equipment.

Location Of Equipment

The Hirer warrants and represents to Dig It Machinery Hire that unless otherwise specified in the Details, the Hirer is Dig It Machinery Hire or lessee of the Premises where the Equipment is housed during the Hire Period. The Hirer will not attach, fix or secure the Equipment or any part thereof to the Premises without the consent of Dig It Machinery Hire.

Without limiting to previous clause:

if the Equipment is affixed, attached or secured to land or premises of which the Hirer is owner, the Equipment will be deemed not to be affixture and may be removed by Dig It Machinery Hire at any time in accordance with this Agreement, and Dig It Machinery Hire will be entitled to enter upon such land or premises at any time for that purpose and will not be liable for any loss, damage or otherwise arising in respect of such entry or such removal; and

if the Equipment is affixed, attached or secured to land or premises of which the Hirer is not Dig It Machinery Hire, the Hirer will, prior to such affixing, attaching or securing, obtain the consent in writing of Dig It Machinery Hire or any mortgagee thereof to the entry onto the land or premises and the removal therefrom of the Equipment in the manner referred to in subclause (a) and as between Dig It Machinery Hire and the Hirer, Dig It Machinery Hire will have the same rights of entry and removal as set out in subclause (a). other encumbrance over, or otherwise dispose of or deal with or permit or suffer to exist any lien or other encumbrance over, the Equipment or any part thereof or any of the rights of the Hirer to the Equipment or any part thereof, or any of the rights of the Hirer under this Agreement, and will keep the Equipment free from any distress, execution or other legal process.

Encumbrances

The Hirer will not, and will not attempt to assign, mortgage, pledge, sell, charge, encumber, sublet, part with possession of, grant a security interest, lien, licence or other encumbrance over, or otherwise dispose of or deal with or permit or suffer to exist any lien or other encumbrance over, the Equipment or any part thereof or any of the rights of the Hirer to the Equipment or any part thereof, or any of the rights of the Hirer under this Agreement, and will keep the Equipment free from any distress, execution or other legal process.

Hirer’s Further Obligations

The Hirer will be responsible for those additional matters contained in the Details, and must pay promptly all expenses incurred in relation to those matters.

Insurance

If it has been indicated in the Details that the Hirer will insure the Equipment, then the Hirer must:

at its cost maintain adequate insurance to cover all liabilities incurred as a result of the use of the Equipment throughout the Hire Period with an Australian insurance company approved by Dig It Machinery Hire, including but not limited to insurance against fire, theft, accident and damage while in the Hirer’s possession. Such insurance policies must show Dig It Machinery Hire as an insured party; and

produce to Dig It Machinery Hire proof that the insurance required under this clause has been effected.

If any money is paid to the Hirer by the insurance company pursuant to any claim or otherwise, the Hirer will be deemed to hold that money in trust for Dig It Machinery Hire and must immediately pay such money to Dig It Machinery Hire.

The Hirer must not use the Equipment nor permit it to be used in such a manner as would permit an insurer to decline any claim.

If, for any reason the Hirer is in breach of this clause and does not hold the required insurance (or any insurance at all), or the Hirer’s insurer does not pay out on the relevant policy, the Hirer agrees that it will personally be responsible for and liable to Dig It Machinery Hire for all monies owing to it as set out in this Agreement.

The Hirer will remain liable for any shortfall between the insurance proceeds and the amount payable to Dig It Machinery Hire under this Agreement.

Guarantee and Indemnity

This clause applies to the Guarantor.

Dig It Machinery Hire agrees to enter into this Agreement, at the request of the Guarantor, upon the condition that the Guarantor guarantees to Dig It Machinery Hire the Hirer’s due performance and observance of the terms, covenants and conditions of this Agreement.

The Guarantor:

guarantees to Dig It Machinery Hire the due and punctual payment to it of all moneys due, or which may become due, from the Hirer under this Agreement;

guarantees to Dig It Machinery Hire the due and punctual performance and observance by the Hirer of the terms, covenants and conditions contained in or implied by this Agreement;

indemnifies Dig It Machinery Hire and saves Dig It Machinery Hire harmless from any liability however so caused as a result of entering this Agreement; and

is responsible to Dig It Machinery Hire in the same manner as if it was the Hirer and it is further agreed and declared that the following clauses prevail.

No extension of time or other indulgence granted to the Hirer by Dig It Machinery Hire operates to affect or modify any of the obligations or covenants of the Guarantor hereunder and the Guarantor shall not be released either wholly or partially under this guarantee by reason of any neglect or forbearance by Dig It Machinery Hire to require or enforce the payment by the Hirer of moneys guaranteed or the performance and observance by the Hirer of any of the terms, covenants, conditions and warranties contained in or implied by this Agreement.

This guarantee is a continuing guarantee and will remain in full force and effect until all moneys now or at any time hereafter payable by the Hirer to Dig It Machinery Hire have been fully paid including moneys the payment or satisfaction of which is subsequently avoided or affected in any way whether under any statutory provision or otherwise so as to deprive Dig It Machinery Hire of the full bene t of such payment or satisfaction.

Dig It Machinery Hire may at any time and from time to time grant to the Hirer any time or other indulgence or consideration and may release or discharge or otherwise deal with any property whether real or personal comprised in any security now or at any time hereafter held by Dig It Machinery Hire without discharging or affecting the liability of the Guarantor under this clause.

Until Dig It Machinery Hire has received in full all moneys now or which subsequently are owing or payable to it by the Hirer, the Guarantor is not entitled on any grounds whatsoever to claim the bene t of any security held by Dig It Machinery Hire for the payment of the moneys or obligations guaranteed.

If the Hirer is wound up the Guarantor is not entitled to prove or claim in the winding up of the Hirer in competition with Dig It Machinery Hire so as to diminish any dividend or payment which but for such proof Dig It Machinery Hire would be entitled to receive in the winding up and the receipt of any dividend or other payment which Dig It Machinery Hire may receive in the winding up will not prejudice or affect the right of Dig It Machinery Hire to recover from the Guarantor the moneys guaranteed.

The Guarantor accepts that as an essential condition of this Agreement that the Guarantor charges all of the Guarantor’s real property, present and future wheresoever situated (Real Property) with the amount of the Guarantor’s indebtedness to Dig It Machinery Hire from time to time. The Guarantor further consents to the lodgement of caveat over the Guarantor’s Real Property to support the charge here given. Further, the Guarantor agrees to do all things necessary to register any instrument with the land titles registry of the state or territory in which the Real Property is located to the support the Guarantor’s obligation under this clause.

In giving the guarantee and indemnity set out in this clause, the Guarantor acknowledges that:

the Guarantor has read and understands the terms of the guarantee and indemnity; and

before giving the guarantee and indemnity, the Guarantor has received legal advice with respect to the effect of the guarantee and indemnity or has, of the Guarantor’s own volition and free of any duress, decided that the Guarantor does not require legal advice with respect to the guarantee and indemnity.

Indemnity By The Hirer

Without limiting to previous clauses (if applicable) above, and irrespective of whether the Hirer has effected adequate insurance cover, the Hirer assumes liability for and indemnifies Dig It Machinery Hire, its agent and employees against all losses, liabilities, costs and expenses (including Consequential Loss and legal expenses on a full indemnity basis) arising as a result of any or all of the following:

on account of the delivery, installation, hiring, disposition, use, condition or operation of the Equipment by the Hirer or any other person (except where it is used or operated by Dig It Machinery Hire);

in respect of any damage to property or death of or injury to any person which may be suffered or sustained in connection with the Equipment; and (c) without limiting the operation of clauses (a) and (b), in the event that Dig It Machinery Hire requires the Hirer to return the Equipment.

The Hirer releases Dig It Machinery Hire to the fullest extent permitted by law from all claims and demands of every kind arising out of delivery, installation, ownership, hiring, use, disposition or operation of the Equipment, including any liability which may arise in respect of any accident or damage to property or death of or injury to any person of whatever nature or kind. The Hirer agrees that Dig It Machinery Hire will have no responsibility or liability for any loss of or damage to any property of the Hirer.

The indemnities and releases contained in this clause will continue in full force notwithstanding any termination of this Agreement.

Limitations Of Liability

All expressed and implied terms, conditions and warranties that otherwise might apply to this Agreement are excluded to the extent permitted by law.

Subject to any terms, conditions and warranties implied by law that cannot be lawfully excluded, Dig It Machinery Hire’s total liability to the Hirer under this Agreement is no more than either:

replacing the Equipment with the same or equivalent equipment; or

repairing the Equipment or the cost to repair the Equipment.

Confidential Information

Each party must keep confidential any information, data or documents of a confidential or proprietary nature (Confidential Information) that is disclosed to them by the other party. The parties must not (and must ensure that their representatives do not) use, reproduce or disclose the Confidential Information of the other for any purpose except to the extent necessary to perform their respective obligations under this Agreement.

Trustee

If the Hirer is acting in the capacity of trustee of any trust (Trust) then, whether or not Dig It Machinery Hire may have notice of the Trust, the Hirer warrants to and assures Dig It Machinery Hire as follows:

the Hirer warrants that the Hirer is the sole trustee of the Trust; (b) the Hirer warrants that the Hirer has full and complete power and authority pursuant to the Trust to enter into this Agreement; and

despite anything contained in any Deed of Trust or Settlement or other document, the Hirer will be personally liable, and will also be liable in the Hirer’s capacity as trustee of the Trust, to Dig It Machinery Hire for the due performance, fulfilment and observance of the Hirer’s obligations under this Agreement.

Termination

Either party may terminate this Agreement by giving notice in writing to the other party if the other party:

fails to remedy a breach of this Agreement within 24hrs (or such longer period as may be specified in the notice) of receiving a notice from the first-mentioned party requiring it to remedy the breach; or

becomes insolvent, enters into any arrangement for the purpose of insolvency administration or is placed under official management.

In the event of default by the Hirer resulting in the termination of this Agreement under this clause, Dig It Machinery Hire may, without notice, repossess the Equipment.

The parties can agree to terminate this Agreement by mutual agreement in writing at any time.

Actions On Termination

On expiration of the Hire Period or upon termination of this Agreement (whichever happens first), the Hirer must:

pay Dig It Machinery Hire all arrears of Rent and other amounts which at the date of termination are due and owing to Dig It Machinery Hire under this Agreement;

return the Equipment to Dig It Machinery Hire in good working order and in good repair (fair wear and tear excepted) at the place of business of Dig It Machinery Hire from which the Equipment was hired, or such other place where Dig It Machinery Hire directs the Hirer; and (c) give Dig It Machinery Hire any certificates of registration relating to the Equipment and a signed transfer of those certificates in favour of Dig It Machinery Hire or a person whom Dig It Machinery Hire nominates.

If the Equipment is not returned as and when required by this clause, Dig It Machinery Hire or its representative may repossess the Equipment. For this purpose, Dig It Machinery Hire or its representative may enter and remain upon any premises where the Equipment is or where Dig It Machinery Hire suspects that the Equipment is.

If the Hirer does not return the Equipment as and when required to do so by this clause 28.1, the Hirer must pay to Dig It Machinery Hire, on demand, Rent (calculated on a daily basis) for the period in which Dig It Machinery Hire is not in possession of the Equipment, and the Hirer must otherwise comply with this Agreement until the Equipment is returned. Nothing in this clause operates to affect an extension or renewal of this Agreement.

Termination of this Agreement for any reason by either party will be without prejudice to the rights and remedies of the parties otherwise having arisen out of this Agreement.

Specific provisions of pervious clauses, this clause 28, and future clauses of this Agreement will survive termination of this Agreement.

Assignment

Dig It Machinery Hire may assign or transfer its rights under this Agreement. The Hirer may only assign or transfer its rights under this Agreement with the prior written approval of Dig It Machinery Hire.

No Agency

This Agreement is not intended to create a partnership, joint venture or agency relationship between the parties.

The Hirer and the Hirer’s employees will not, by virtue of this Agreement, be or become an employee or agent of Dig It Machinery Hire.

No party has authority to bind another party or act as their agent, and each party agrees not to hold itself out as having that authority or as being another party’s agent.

Force Majeure

No failure or omission by the parties in the performance of any obligation of this Agreement will be deemed a breach of this Agreement nor create any liability if the failure or omission arises from a Force Majeure Event.

A party seeking to rely upon this clause must immediately advise the other party by notice in writing of the details of the relevant Force Majeure Event. If the occurrence of such an event continues for a period of 2 days from the date of such notification, then the other party may by notice in writing, terminate this Agreement.

Entire Agreement

This Agreement constitutes the full and complete understanding between the parties with respect to the subject matter of this Agreement. There is no other oral understanding, agreement, warranty or representation whether express or implied in any way extending, defining or otherwise relating to the provisions hereof or binding on the parties with respect to any of the matters to which these presents relate.

No Set-Off

A payment required to be made by the Hirer or the Guarantor pursuant to this Agreement must be paid without any deduction, withholding, set- off or counterclaim arising at law, in equity or pursuant to statute.

30. Exercise Of Rights

A single or partial exercise of any right, power or privilege does not preclude any other or further exercise of that right, power or privilege, or the exercise of any other right, power or privilege.

Governing Law

This Agreement will be governed by and construed in accordance with the law of Queensland and each of the parties hereby submits to the non-exclusive jurisdiction of the Queensland Courts.

Interpretation

In this Agreement, headings are for convenience only and will not affect its interpretation. Except to the extent that the context otherwise requires:

reference to any statute or statutory provision will include any modification or reenactment of, or any legislative provisions substituted for, and all legislation and statutory instruments issued under such legislation or such power;

words denoting the singular will include the plural and vice versa;

words denoting individuals will include corporations, associations, trustees, instrumentalities and partnerships and vice versa;

references to parts, clauses, parties, annexures and schedules are references to parts, clauses, parties, annexures and schedules to this Agreement as modified or varied from time to time;

references to any document, deed or agreement will include references to such document, deed or agreement as amended, novated, supplemented, varied or replaced from time to time;

references to any party to this Agreement or any other document, deed or agreement will include its successors or permitted assigns;

all references to dates and times are to Brisbane time;

all references to “$” and “dollars” are to the lawful currency of Australia.

Exclusions

Equipment hired out under this agreement shall not be used for the following purposes, failure to comply with this agreement may result in the hirer being subject to reimburse Dig It Machinery Hire for the purchase value of replacement equipment, unless specific written consent is granted by Dig It Machinery Hire representatives;

Arborist/Tree Surgeon/Tree Lopping

Bushfire controls or Fire Extinguishing

Concreting, concrete/cement pumping or concrete manufacturing

Construction or maintenance of tailing dams

Mechanical repairs to third party owned vehicles

Piling

Products being sold, supplied, manufactured, imported or exported

Scaffolding

Underground or tunnelling works

Underpinning

Waste facility, landfill or waste management services beyond cartage

END OF DOCUMENT

Terms & Conditions of Hire