Terms & Conditions
DRY HIRE RENTAL VEHICLE AGREEMENT TERMS AND CONDITIONS
The following Terms and Conditions must be accepted by the Hirer prior to the Company making the Vehicle(s) available to the Hirer.
1. DEFINITIONS
Agreement means the Hire Schedule, these Terms and Conditions any other relevant documents, attached to, or referred to, in it including the Rental Agreement.
COB means close of business.
Company means L&F Ward Pty Ltd A.B.N. 87150439820 and its officers, agents or employees.
Condition Report means the report completed by the Hirer and the Company regarding the state of the condition of the Vehicle(s) prior to the Vehicle(s) being hired by the Hirer.
Cost Price means the amount listed in the Hire Schedule attached to this Agreement.
Hirer means the party listed in the Hire Schedule attached to this Agreement and includes its officers, agents or employees.
Hire Charges / Hire Fee means the total amount payable by the Hirer to the Company in respect of the hire of the Vehicle(s) as set out in the Hire Schedule and includes but is not limited to:
1.1 rental of the Vehicle(s);
1.2 Queensland Registration costs of the Vehicle.
1.3 insurance costs (including taxes) and insurance excess costs in the case of a claim. If a group insurance policy is in place, then Insurance costs will be an amount proportioned for the Vehicle);
1.4 costs of Servicing and maintaining the Vehicle(s);
1.5 the total cost of Dry Hire will be determined by quote or cents per kilometre travelled during hire period
1.6 PPSR registration costs including third party costs to a maximum of $250 including GST.
Hirer’s Operator means the Hirer and any of its officers, agents or employees.
Hire Period means the agreed length of time that the Hirer will hire the Vehicle(s) from the Company plus any extra time where the Vehicle(s) are not returned promptly or are being replaced or repaired as a result of damage or loss caused, or deemed to be caused by the Hirer or any other extended period as agreed to by the parties.
Hire Schedule means the schedule attached hereto.
Invoice/s means the tax invoice addressed to the Hirer setting out the Total Charges payable by the Hirer to the Company and complying as a valid tax invoice for the purposes of GST legislation.
Market Value means the amount determined by the Company having regard to the condition of the Vehicle upon return, and the reasonable opinions or offers of a second-hand vehicle trader.
Original Condition means the condition in which the vehicle(s) were at the time the hire commenced as per the condition report.
‘person’ and ‘persons’ means individuals, firms, partnerships, bodies corporate, associations and governments and governmental, semi-governmental and local authorities and agencies.
Shortfall means the difference between the Market Value of the Vehicle(s) and the Shortfall Percentage of the Cost Price of the Vehicle(s) at the conclusion of the Hire Period.
Shortfall Percentage means the percentage set out in Item 10 of the Schedule.
Total Charges means all amounts which are or may become payable by the Hirer to the Company under these terms and conditions, including, but without limitation, the Hire Charges.
Vehicle(s) means the vehicle(s) listed in the Hire Schedule attached to this Agreement. For the purpose of this agreement, this includes, but is not limited to, a Ute, HiAce/commuter, bus, coach, plant and equipment.
2. INTERPRETATION
In this Agreement, except to the extent the context otherwise requires:
2.1 the singular includes the plural and vice versa.
2.2 a gender includes every gender.
2.3 a reference to a party is to be construed as a reference to a party to this Agreement.
2.4 a reference to a party to this Agreement or any other document or agreement includes its executors, administrators, successors and permitted assigns.
2.5 a reference to an item in the Background, clause, schedule, annexure or appendix is a reference to an item in the Background, clause of or schedule, annexure or appendix to this Agreement and references to this Agreement include its schedules and any annexures.
2.6 where a word or phrase is given a particular meaning, other parts of speech or grammatical forms of that word or phrase have corresponding meanings.
2.7 a reference to a document or agreement including this Agreement includes a reference to that document or agreement as amended, novated, supplemented, varied or replaced from time to time; and
2.8 in the interpretation of this Agreement, headings are to be disregarded.
3. THE COMPANY’S COMMITMENT TO HIRER
The Company agrees to hire out the Vehicle(s) to the Hirer for the Term, and in accordance with this agreement once satisfied the Hirer will pay the Hire Fees and will comply with this agreement.
4. CONTRACT PERIOD / PERIOD OF HIRE
4.1 The minimum Hire Period shall be as described in the Hire Schedule.
4.2 The hiring of the Vehicle(s) will commence from the Commencement Date specified in the Hire Schedule.
4.3 The hiring of the Vehicle(s) will cease from the Termination Date specified in the Hire Schedule unless the Hirer is in default of this Agreement in accordance with clause 16 and the Company has made a demand for the earlier return of the Vehicle(s).
4.4 The Hirer is entitled to use the Vehicle(s) for the Hire Period. Any extension of the Hire Period must be agreed to by the Company in writing.
5. GOVERNING LAW
5.1 This Agreement is governed by the laws of the State of Queensland.
6. HIRE OF VEHICLE
6.1 The Hirer accepts this agreement and the Hire Schedule upon:
a) Email confirmation and acceptance of the Agreement and/or Hire Schedule; or
b) Signing and returning the Agreement and/or Hire Schedule.
whichever should occur first.
7. DELIVERY AND COLLECTION
7.1 The Hirer agrees to collect the Vehicle(s) from the address of the Company on the Commencement Date, and the Hirer agrees to deliver the Vehicle(s) to the address of the Company at the end of the Hire Period as outlined in the Hire Schedule.
7.2 If the Company is to deliver or pick up the Vehicle(s) at the commencement/cessation of the Hire for the Hirer, a Vehicle Mobilisation Fee may be applicable. Calculations for the Vehicle Mobilisation Fee will be set out in the Hire Schedule. The Hirer agrees to pay the Vehicle Mobilisation Fee as per the Company’s Invoice. The Company maintains the right to waive the Vehicle Mobilisation Fee at its discretion.
7.3 On the Commencement Date the Vehicle(s) will be provided in a clean and roadworthy condition with reasonable kilometres on the odometer with regards to the Vehicle(s) year of manufacture. If the seal on the odometer is broken or tampered with during or at the conclusion of the Hire Period, the Hirer will be reported to the appropriate authority and the Hirer will be responsible for extra charges based on $250 per day.
8. THE VEHICLE
8.1 The Hirer is solely responsible for assessing and determining if the Vehicle(s) will be suitable, fit for purpose, and in compliance with its description. This includes the Vehicle(s) capabilities/specifications as set out by the manufacturer and the intended use by the Hirer.
8.2 The Company will supply the Hirer with a Condition Report of the Vehicle(s) at the commencement of the hire. The Hirer is responsible for checking the report against the vehicle and must be signed prior to taking possession of the Vehicle(s). Once the Condition Report is signed, both parties have agreed this is the Original Condition of the hired vehicle.
8.3 The Company and the Hirer will check the Vehicle(s) against the Condition Report. The Hirer is to return the Vehicle(s) in the Original Condition except for ordinary wear and tear (but not including windscreen and tyre damage) together with all keys, tools, accessories, tyres, and equipment to the Company on the Termination Date. The Hirer will be liable for any discrepancies between the Original Condition Report and the Condition Report upon return.
8.4 The Hirer shall be deemed to have caused any damage to the Vehicle(s) during the Hire Period, regardless of whether the Hirer or a third party caused the damage or who was at fault.
8.5 The Company may take back possession of the Vehicle(s) without prior demand and at the expense of the Hirer if the Vehicle(s):
a) are illegally parked;
b) used in violation of the law;
c) the Hirer is in breach of this Agreement; or
d) are reasonably considered by the Company to be abandoned by the Hirer.
9. CANCELLATION
9.1 The Hirer agrees to hire the Vehicle(s) for the entire Hire Period. Should the Hirer be unable or unwilling to complete the Hire Period the Hirer will be responsible for paying to the Company the Total Charges that would have been payable had the Hirer not ended this Agreement early. This includes the cancellation of a requested Vehicle(s) prior to delivery.
10. TERMS OF PAYMENT
10.1 Period of payments
Unless otherwise agreed between the parties, the Hire Charges will begin on the Commencement Date and will cease on the Termination Date.
10.2 GST
In addition to any amount or consideration expressed as payable, the Company is required by law to pay GST at the prevailing rate on the supply of goods and/or services under this Agreement, and is entitled by this Agreement to recover from the Hirer the amount of such GST. Any GST chargeable under this clause is payable by the Hirer at the same time as the amount or consideration payable on the supply to which it relates.
10.3 Calculation of Hire Charges
a) The Hirer agrees to pay the Company the Hire Fee specified in the Hire Schedule including any applicable GST, levies or freight, insurance and other charges relevant to this Agreement and/or the hire of the Vehicle(s) for the Hire Period.
b) Payment of the Hire Charges / Hire Fee and other costs payable by the Hirer must be made in accordance with the Invoice, unless otherwise agreed by the Company.
10.4 Other costs payable by the Hirer
In addition to the Hire Charges / Hire Fee, the Hirer shall pay to the Company:
a) the amounts of any tax (not including income tax), duty, levy, charge or other expense paid or payable by the Company to any government or government authority in respect of the use or hire of the Vehicle(s), and stamp duty on the purchase of the Vehicle;
b) the direct reasonable cost incurred by the Company in the delivery and collection of the Vehicle(s), if required;
c) infringement notices incurred during the Hire Period; and
d) any reasonable expenses necessarily incurred by the Company as a result of a breach by the Hirer of its obligations pursuant to this Agreement.
10.5 Payment of Invoice/s
a) The Company will render Invoice/s to the Hirer monthly throughout the Hire Period.
b) The Hirer agrees to pay the Total Charges to the Company within 30 days of receiving the Company’s Invoice rendered in accordance with clause 7.4.
10.6 Interest on unpaid amounts
The Company shall be entitled to charge the Hirer interest (at the maximum overdraft rate charged by the Company’s bankers) on any Hire Charge / Hire Fee due by the Hirer to the Company but which remains unpaid beyond the time limited allowed under clause 10.5.
11. PROPERTY
11.1 Ownership
Ownership of the Vehicle(s) shall always remain with the Company. The parties agree, and the Company warrants, that no person shall be entitled directly or indirectly to use, dispose of or otherwise deal with the Vehicle(s) in any way which is inconsistent with the rights of the Company as the owner of the Vehicle(s) or the Company’s rights under this Agreement. Neither payment or compensation nor any other circumstance or event shall amount to, constitute, or result in any transfer of property or interest in the Vehicle(s) from the Company. Further, it is not the intention of either party that this be a hire purchase type arrangement.
11.2 Inspection
The Hirer must allow the Company or any agent or representative of the Company, without notice, access to the Vehicle(s) during the Hire Period but not at times or in a manner that may interfere with the conduct of operations by the Hirer. The Hirer shall admit or procure admission of the Company or any agent or representative of the Company to the premises upon which the Vehicle(s) are situated for that purpose. The Hirer must provide safe and proper access to, around and at the site that the Vehicle(s) are being used.
11.3 Assignment by the Hirer
The Hirer may not assign or subcontract its rights and obligations without the prior written consent of the Company, which consent may not be unreasonably withheld or delayed.
11.4 The Hirer must not sell or encumber the Vehicle(s)
The Hirer will not sell or offer for sale, assign, mortgage, pledge, lend or otherwise part with possession of the Vehicle(s) and will keep the Vehicle(s) in its possession and will not allow any lien or purported lien to be created upon the Vehicle(s) whether for repairs or otherwise and will protect the Vehicle(s) against execution or seizure.21
11.5 Indemnity by the Hirer
The Hirer shall indemnify and shall hold the Company harmless against all liabilities, damages, losses, costs, charges and expenses incurred or suffered by the Company and all actions, proceedings, claims or demands made against the Company as a direct or indirect result of a breach by the Hirer of clause 8.4.
11.6 Assignment by the Company
The Company may assign or sub contract its rights under these terms and conditions or arrange for its obligations under these terms and conditions to be assumed, provided that the Company will remain liable to the Hirer for the performance of the obligations of the Company stated in this Agreement notwithstanding any such assignment, subcontract or assumption.
11.7 PPSR
If the Company determines that this Agreement (or a transaction in connection with it) is or creates a security interest for the purposes of the Personal Property Securities Act 2009, the Hirer will do all things necessary for the purposes of registering the Company’s security interest, including providing consents, signing and producing documents, or supplying information.
12. LATE RETURN
12.1 If the Hirer fails to return the Vehicle(s) within the Hire Period specified in this Agreement or, where the Company has agreed to collect the Vehicle(s), fails to notify the Company that the Vehicle(s) are available for collection in time for the Vehicle(s) to be picked up and returned to the Company’s premises within normal business hours, the Hirer will be responsible for the safekeeping of the Vehicle(s) until the Company collects the Vehicle(s) and shall, if required by the Company and within its discretion, pay the Company’s reasonable costs of collection.
12.2 In the event the Vehicle(s) are not returned on time and in accordance with this Agreement, you will be subject to a continuance of the agreed Hire Fee until return of the Vehicle(s) is complete.
13. OBLIGATIONS
13.1. The Hirer agrees that the use of the Vehicle(s) carries with it dangers and risks of injury and the Hirer agrees to accept all dangers, risks and liabilities. The Hirer further agrees that the Company has no control over the Vehicle(s) or how they are used and therefore be indemnified by the Hirer for the cost or liability the Company may suffer for any workplace injury.
13.2. The Hirer agrees that the Vehicle(s) will only be used for its intended purpose and in accordance with any requirements, instructions or recommendations whether supplied by the Company, the Insurer or the manufacturer in regard to their operation, maintenance and storage.
13.3. The Hirer will comply with all laws and legislation including, but not limited to, speed laws, seat belt laws, workplace health and safety legislations and any registration and/or licensing requirements.
13.4. The Hirer will ensure the Vehicle(s) are kept in the Hirer’s sole possession for the duration of the hire, except at such times when the Vehicle(s) are required to be left with a qualified and reputable company, as authorised by the Company, for the purpose of maintenance and repairs. During this time, the Vehicle(s) are still the responsibility of the Hirer.
13.5. The Hirer will ensure the Vehicle(s) is always kept locked and secure when not in use.
13.6. The Hirer will not use or store the Vehicle(s) on any private property or roads without permission from the Company; should the Hirer obtain permission from the Company, the Hirer is still liable and responsible for the Vehicle(s) during this use or storage.
13.7. The Hirer will provide a person/s for the operation of the Vehicle(s); the Hirer will ensure all person/s that drive the vehicle and/or are authorised to have control of the vehicle:
a) Act in a responsible manner.
b) Are over the age of 25 years.
c) Holds a current driver’s license that is suited to the Vehicle(s) class.
d) Have held a driver’s licence for a minimum of one (1) year.
e) Are not affected by, or under the influence of, alcohol, drugs or any other substance that would impair or inhibit the driver/operators’ ability to operate the Vehicle(s) in both a safe and legal manner.
f) Have not had their licence cancelled or suspended within the last three (3) years.
g) are a suitably qualified trained, experienced and (if necessary) certified operator. The Hirer shall be responsible for all claims whatsoever arising as a result of the operation of the Vehicle(s) by such an operator or any third party.
13.8. The Hirer agrees to take all reasonable care to protect the Vehicle(s) during the Hire Period.
13.9. If the Vehicle(s) are lost, break down or are damaged, the Hirer shall within two hours of becoming aware notify the Company. Notification does not absolve the Hirer from its requirements to safeguard the Vehicle(s) from further loss or damage.
13.10. The Hirer agrees to pay for repairs and any damage to the Vehicle(s) caused by the Hirer or the Hirer’s Operator in a good, prompt, and competent tradesman-like manner that is satisfactory to the Company.
13.11. The Hirer agrees to accept that the Vehicle(s) should not operate under conditions and/or in situations which are dangerous for the Hirer’s Operator, or which are likely to result in damage to the Vehicle(s) beyond normal wear and tear.
13.12. The Hirer will immediately stop using the Vehicle(s) and notify the Company if the safety of the Vehicle(s) is in any way questionable or if the Vehicle(s) break down or become unsafe, and will take all necessary steps to prevent injuries to all persons and property arising in connection with the Vehicle(s).
13.13. The Hirer shall subject to the other clauses of this Agreement:
a) pay charges: pay to the Company the Total Charges which are payable in accordance with this Agreement.
b) no modification: not alter, make additions to, deface or erase any identifying mark, plate, trademark, writing or number on or in the Vehicle(s) or in any other manner interfere with or modify the Vehicle(s)except as is necessary for the purpose as advised to the Company;
c) abandonment: accept sole responsibility for and fully reimburse the Company (within seven days of a request by the Company) for the cost of freight to retrieve the Vehicle(s) abandoned for any reason.
d) safety clothing and equipment: provide all operators of the Vehicle(s) with appropriate and prudent safety clothing or other equipment.
e) no manufacturing process: not carry out any manufacturing process within the Vehicle(s);
f) no volatile or explosive materials: not without the prior written consent of the Company keep or store in the Vehicle(s) or on or near the Vehicle(s) any volatile spirits or explosive goods or goods which are or may become dangerous, corrosive, highly combustible, offensive (including radioactive materials);
g) manuals and instructions regarding use: supply to all operators of the Vehicle(s) all manuals and instructions (both written and oral) supplied by the Company necessary or prudent for use of the Vehicle(s), manuals and written instructions are available from the Company upon request; and
h) notify change in location: notify the Company of any relocation of the Vehicle(s) during the Hire Period.
14. USE OF THE VEHICLE(S)
14.1. The Hirer will ensure that Vehicle(s) are kept clean
14.2. The Hirer will ensure that Vehicle(s) are used safely, properly as per vehicle specification/manufacture and without risk to any person/s health and safety
14.3. The Hirer will maintain the Vehicle(s) in the original condition as per the condition report for the term of the agreement (with the exception of fair wear and tear)
14.4. The Hirer will ensure that the Vehicle is not used:
a) In any illegal manner or for any illegal purpose, racing, contest or performance testing;
b) To carry more passengers than the Vehicle(s) legal seating capacity;
c) For paid passenger transport
d) When damaged or unsafe for use
e) To carry any flammable, corrosive, or explosive materials
f) To store any flammable, corrosive, or explosive materials
g) For towing or transporting any load which is in excess of the Vehicle(s)’ capacity and ability as set out by the manufacturer
h) Smoking – Smoking is strictly prohibited inside the Vehicle(s) and the Hirer is liable for additional cleaning fees if the Hirer, or any driver/operator authorised by the Hirer, smokes in the vehicle;
i) Alcohol – consumption of alcohol is strictly prohibited inside the Vehicle(s);
14.5. Vehicle Pre Start Inspections
a) Personal Hire: The Hirer will ensure the Vehicle(s) undergoes a daily pre start inspection (as per manufacturer's requirements or the Company’s specifications) prior to Vehicle use;
b) Mine Site Hire/Use: The Hirer will ensure the Vehicle(s) undergoes a pre start inspection (as per manufacturer's requirements or the Company’s specifications) every shift change prior to Vehicle use;
15. SERVICING, REPAIRS AND MAINTENANCE
15.1. In respect of servicing, the Vehicle(s) will be serviced by qualified and reputable companies as authorised and booked by the Company at regular intervals, but no less than minimum logbook intervals as advised by the manufacturer.
15.2. The Company will replace one (1) windscreen per 12 month period the Vehicle(s) hire; the Hirer is responsible for any additional windscreen replacements within the same 12-month period.
15.3. The Company will replace tyres with fair wear and tear provided the Hirer has maintained same within general recognized safety standards. Tyre replacement because of damage outside of fair wear and tear is the Hirer’s responsibility.
15.4. The Hirer is responsible for maintaining the Vehicle(s) fluid levels for the duration of the hire as set out by the manufacturer specifications including, but not limited to, fuel, oil, power steering fluid, coolant, ad blue, brake fluid and hydraulic fluid.
15.5. All repairs and maintenance must be undertaken as soon as practical by qualified and reputable companies, to be determined by the Company. All repairs and maintenance conducted must use genuine original parts and materials of a quality consistent with the original equipment manufacturer. In the event the genuine parts is not available, the Hirer can request permission from the Company to OEM parts as approved by the manufacturer that meet the required standards for replacement.
15.6. The Hirer shall be responsible for payment of all Hire Charges during any period of breakdown when the Vehicle(s) are not available for use, except as specified under clause 11.4.
15.7. If the damaged condition or loss of the Vehicle(s) is caused by the negligent acts of the Company, the Hirer will not be required to pay the Hire Fee whilst the Vehicle is being repaired.
15.8. If the Vehicle(s) on hire relates to plant or machinery or specialised items, the Hirer assumes liability to any damage and wear to machinery parts. This includes but is not limited to:
a) Grader blades
b) Buckets
c) Slasher
d) Trays
e) Rippers and so on.
16. LOSS AND DAMAGE TO VEHICLE(S)
16.1. The Hirer will be responsible for any loss or damage to the Vehicle(s) irrespective of how the loss or damage occurred, except for reasonable fair wear and tear, during the Hire Period and after the Hire Period whilst the Vehicle is in the possession or control of the Hirer. The Hirer must, within 30 days of loss or damage to the Vehicle, pay to the Company reasonable compensation as determined by the Company.
16.2. The Hirer is liable for the payment of the new list price of any Vehicle(s) not returned to the Company.
17. INSURANCE
17.1. With regards to insurance, notwithstanding anything else in this Agreement:
a) the Hirer will pay the Company $2,500.00 as an insurance claim administration fee which both parties agree is a reasonable estimate of the Company’s internal administration costs to make an insurance claim and arrange repairs and replacement. This is in addition to any insurance excess charged by the Insurer.
b) the Company will take out comprehensive insurance over the Vehicle(s) which will include a $20,000,000 public liability policy.
c) it will be the Hirer’s responsibility to satisfy itself that that policy is sufficient to protect the Hirer’s interests.
d) the Company will include the insurance charge (including taxes) on the Invoice.
e) except where it is solely the result of the Company’s negligent acts or omissions the Company takes no responsibility for any deficiency or shortfall in insurance cover, whether that deficiency or shortfall be as a result of the Company’s negligent acts or omissions, the Company’s insurers’ negligent acts or omissions, or the Hirer’s negligent acts or omissions;
f) where the Company receives a payment from an insurer as a result of damage or loss to a Vehicle, the Hirer will be reimbursed the amount it has paid to the Company as a result of that damage or loss, up to a maximum of the Insurance payout.
17.2. The Hirer will assume all risks and liabilities in respect of the Vehicle(s), driver/operator and the use and storage of same once the Vehicle(s) is collected by the Hirer or delivered to the Hirer and until it is returned to the full custody and control of the Company.
17.3. The Hirer will not, through act or omission, permit or omit to do anything which may prejudice the policy of the insurance and the Hirer will do everything necessary to enable the Company to collect any money under that policy.
17.4. If the Hirer is covered by the Company’s insurance policy, any person permitted to drive the Vehicle(s) is subject to any excess payable by the Hirer and any insurance exclusions.
17.5. If the Hirer is covered by the Company’s insurance policy, the Hirer acknowledges that the policy held by the Company does not cover all claims for damage to the Vehicle(s) or relating to the hire and use of the Vehicle(s) and the Hirer may be required to pay excess amounts for each and every claim.
17.6. If the Hirer is covered by the Company’s insurance policy, the Hirer acknowledges and agrees that the Company’s policy does not cover:
a) Drivers/operators under 25 years old
b) Theft of the Vehicle(s) by the Hirer, or any person who acts behalf of the Hirer
c) Any driver/operator who does not hold a current and relevant licence for the relevant Vehicle(s) being hired.
17.7. In the event the cost of any claims for damage exceeds the Company’s insurance coverage on the Vehicle(s), or the claim is not covered by the Company’s insurance coverage, the Hirer is required to pay the amount of the insurance excess or the full amount of the claim (as applicable).
18. REPOSSESSION AND REMEDIES ON DEFAULT
18.1. The Company may retake possession of the Vehicle(s) if the Hirer breaches any provision of this Agreement, notwithstanding anything else herein contained.
18.2. If repossession takes place, the Company shall continue to charge the Hire Fee that would be payable by the Hirer to the Company up to and including the Termination Date had the breach not occurred.
18.3. All costs incurred by the Company incurred in repossessing due to a breach of this Agreement are to be paid by the Hirer.
18.4. In the case of repossession, the Hirer hereby irrevocably and forever agrees to grant the Company permission to enter the premises where the Vehicle(s) listed in this Agreement is situated in order to remove those Vehicle(s).
18.5. In addition to the Company’s right to retake possession, the Company is entitled, in its sole discretion, following any breach of any provision of this Agreement by the Hirer, to terminate this Agreement and/or sue for the recovery of any damages or charges or loss suffered by the Company and/or to cancel any insurances effective in respect of the Vehicle(s) hired.
19. TERMINATION AND DEFAULT
19.1. This Agreement is terminated once the Hire Period has expired or ended.
19.2. Upon termination of this Agreement, the Hirer is to return to the Company, or as advised by the Company, the Vehicle(s) and all other items hired under this Agreement.
19.3. If the Hirer does not return the Vehicle(s) to the Company at the end of the Hire Period, this Agreement continues to be in force until the Vehicle(s) are returned to the Company as required by the Company.
19.4. The Company may, in its sole discretion and without requiring reason to do so, at any time, suspend or terminate this Agreement on 30 days written notice to the Hirer.
19.5. The Hirer acknowledges that the Company may suspend or terminate this Agreement immediately (with or without written notice) if:
a) the Company was induced by fraudulent misrepresentation on the Hirer’s part to enter into this Agreement;
b) any amount charged to the Hirer is due and unpaid;
c) in the opinion of the Company, any change in circumstances, including, without limitation, changes in the Hirer’s constitution, ownership, membership, control status or ability to provide security for payment of amounts which have or are likely to be charged to the Hirer, makes the continuance of this Agreement undesirable or unsatisfactory to the Company;
d) the Hirer becomes, threatens or resolves to become or is in jeopardy of becoming, subject to any form of insolvency administration;
e) the Hirer becomes, threatens or resolves to become or is in jeopardy of dissolving;
f) the Hirer, being a natural person, dies, becomes, threatens or resolves to become or is in jeopardy of becoming, subject to any form of insolvency or bankruptcy;
g) the Hirer ceases or threatens to cease conducting business in its normal manner; or
h) the Hirer is otherwise in default under this Agreement or the Company’s terms of trade.
19.6. If the Hirer:
a) breaches any term;
b) becomes bankrupt or insolvent,
then the Company may, without prejudice to any other remedy available to it:
c) require immediate payment of all monies owed by the Hirer to the Company including the Hire Fee for the remaining full term of the Agreement;
d) the Shortfall Percentage reverts to 90% and Shortfall shall be calculated based on 90% value of the Vehicle;
e) charge the Hirer interest on any sum due at the Company’s bank’s cash rate until the date of payment in full;
f) charge the Hirer for all costs and expenses (including without limitation all legal costs and expenses) incurred by the Company by enforcing compliance with this Agreement or recovering the Vehicle(s);
g) charge the Hirer for the cost of repairing or replacing any lost, damaged or destroyed Vehicle(s);
h) Charge the Hirer for subsequent lost hire charges as a result of the Vehicle(s) being lost, damaged or destroyed until the Vehicle(s) is repaired or replaced;
i) Claim damages from the Hirer for breach of this Agreement; and/or
j) Cease or suspend supply of any further Vehicle(s) to the Hirer.
20. LIABILITY
20.1. Where there is more than one Hirer, each Hirer will be jointly and severally liable and in all terms the singular will be read and construed as including the plural.
20.2. Certain legislation may grant the Hirer with rights, warranties, guarantees and remedies relating to the hiring of the Vehicle(s) which cannot be excluded, restricted or modified (‘Statutory Rights’). If the Australian Consumer Law applies to the Hirer as a consumer, nothing within this agreement excludes the Hirer’s Statutory Rights as a consumer under the Australian Consumer Law.
20.3. The Hirer agrees that its liability for the Vehicle(s) provided to an entity defined as a consumer under the Australian Consumer Law is governed solely by the Australian Consumer Law and this agreement.
21. SEVERANCE
21.1. 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 provision had been severed from this Agreement and the parties remain bound by all of the provisions and part provisions remaining after severance.
22. GUARANTEE & INDENITY
22.1. In this Clause unless the context otherwise requires:
"Agreement" means this Agreement;
"Guarantor" means the person or persons named in the Hire Schedule;
"Guarantor's Obligations" means the obligations of the Guarantor set out in subclause 20.2 or in any other provision of this Agreement to which subclause 20.2 relates;
"Hirer's Obligations" means the due and punctual observance and performance by the Hirer of all liabilities, obligations and agreements (whether contingent, prospective or actual) to the Company under or in connection with this Agreement;
"Insolvency" includes administration, bankruptcy, compromise, arrangement, amalgamation, receivership, reconstruction, winding up, liquidation, dissolution and assignment for or compromise with creditors and "Insolvent" will be construed accordingly; and
"Security" means any mortgage, pledge, lien, charge or other Security, whether consensual or arising by operation of law, and any guarantee, suretyship or other obligation whereby a responsibility is assumed for any obligation or indebtedness or the Insolvency or financial condition of any other person.
22.2. In consideration of the Company at the request of the Hirer entering into this Agreement, the Guarantor unconditionally (and jointly and severally where there is more than one Guarantor):
a) guarantees the Hirer’s Obligations; and
b) indemnifies the Company against any loss or liability the Company incurs arising from or connected with the Hirer’s Obligations.
22.3. Each of the Guarantor's Obligations:
a) is a principal obligation and will not be treated as ancillary or collateral to any other right or obligation however created or arising;
b) may be enforced against the Guarantor without the Company first being required to exhaust any remedy it may have against the Hirer or to enforce any Security it may hold with respect to the Hirer’s Obligations;
c) is a continuing guarantee and indemnity for the whole of the Hirer's Obligations and will be irrevocable and will remain in full force and effect until discharged; and
d) will not be considered as wholly or partially discharged by the performance at any time of any of the Hirer’s Obligations or by any settlement of account or by any other matter or thing whatever and will apply to the present and future scope of the Hirer's Obligations.
22.4. The liability of the Guarantor is absolute and will not be affected by any act, omission, matter or thing which but for this provision might operate to release or otherwise exonerate the Guarantor from the Guarantor's Obligations in whole or in part including without limiting the generality of the foregoing:
a) the grant to the Hirer or any other person of any time, waiver or other indulgence or concession, or the discharge or release of any other Security held by the Company in respect of the Hirer's Obligations;
b) any transaction or arrangement that may take place between the Company and the Hirer, the Guarantor or any other person;
c) the Insolvency of the Hirer;
d) the Company exercising or refraining from exercising any other Security or any of the rights, powers or remedies conferred on it by law or by this Agreement or any other agreement with any person, or taking or failing to take any other Security;
e) the variation (including a variation which increases the Hirer's Obligations), extinguishment, unenforceability, failure, loss, release, discharge, abandonment or transfer either in whole or in part of this Agreement, or any Security now or in the future held by the Company from the Hirer, the Guarantor or any other person;
f) the Hirer's Obligations or any part of them being or becoming wholly or partially illegal, void, voidable or unenforceable;
g) the failure by the Company to give notice to the Guarantor of any default by the Hirer under this Agreement;
h) any legal limitation, disability, incapacity or other circumstances related to the Hirer; or
i) the failure of any Guarantor to execute this Guarantee or the granting of this Guarantee by any Guarantor being or becoming void or voidable.
j) this Guarantee extends to cover this Agreement as amended, varied or replaced, either with or without the consent of the Guarantor.
22.5. If the Hirer becomes Insolvent, the Guarantor authorises the Company to prove for all moneys which the Hirer or any other person will have paid under this Agreement and to retain and to carry into a suspense account and to appropriate at the discretion of the Company any dividends received in the Insolvency of the Hirer and all other moneys received in respect of the Hirer's Obligations until the Company has been paid in full in respect of the Hirer's Obligations.
23. DEFINING FAIR WEAR AND TEAR
NOTE: This document is meant to serve as a guide only as to what constitutes fair wear and tear and is by no means an exhaustive list of Vehicle components.
At the end of the Hire Agreement, once the Hirer has returned the Vehicle to the Company, the Vehicle will be inspected against the signed Condition Report for Original Condition prior to the hire.
Acceptable Standards
The Hirer will be liable and responsible for repair and/or replacement costs for damage to the Vehicle in excess of normal fair wear and tear.
23.1. Interior – Seating and Seat Belts
a) Acceptable
i. Light Staining - Under the condition this can be removed by steam cleaning and the seat fabric/material is not damaged
ii. Fading or Discolouration - As long as this is caused by exposure to sunlight and is not found to be the cause of contact with an inappropriate substance
iii. Any wear that is due to age or expect through normal usage
b) Unacceptable
i. Any permanent staining that damages the texture of the fabric on seats and belts - Causes: oil, paint, chewing gum etc.
ii. Stains that cannot be removed with steam cleaning
iii. Cuts, rips or tears - Causes: inappropriate items on seats, failing to inform the Company that the worn fabric or belt requires repair, etc.
iv. Burns - Causes: cigarettes, lighters etc.
v. Any damage to seat structure (internal or external) - Causes: inappropriate item on seats, imposing excessive force on seats and belts, failing to inform the Company that the fabric or belt requires repair, removing seats that have not been designed to facilitate temporary removal etc.
c) Recommendations
i. Adequately protect all seating that is at risk of excessive wear and damage. After-market heavy-duty seat covers should remain with the vehicle and maintained.
ii. Ensure all personnel are aware seating is not designed to carry heavy materials, equipment or sharp objects
iii. Encourage personnel to treat seating with respect and ensure you/Hirer are liable for damages.
23.2. Interior – Dashboard, Console and Trim
a) Acceptable
i. Light Staining - Under the condition this can be removed by steam cleaning and the fabric/material is not damaged
ii. Fading or Discolouration - As long as this is caused by exposure to sunlight and is not found to be the cause of contact with an inappropriate substance
iii. Any wear that is due to age or expect through normal usage
b) Unacceptable
i. Cuts, tears, dents, deep scratches - Causes: carrying inappropriate loads, etc.
ii. Holes made to accommodate any accessory (e.g. car phone, navigation kits)
iii. Removal of any accessory or component supplied with the vehicle or subsequently fitted at our expense. Unless written approval is given by the Company (e.g. glove box, cup holder door pocket etc)
iv. Burns - Causes: cigarettes, lighters etc.
v. Excessive damage caused by removal or repositioning of any accessories - Including car phones and navigation kits
vi. Any permanent staining that cannot be removed by steam cleaning - Causes: oil, paint, chewing gum etc.
c) Recommendations
i. When fitting accessories e.g. phones, ensure that the latest fitting techniques are used to minimise damage
ii. Any accessory fitted at the Hirer’s expense must be removed before the vehicle is returned to the Company. Any accessory supplied with the Vehicle must be fitted in original position. Taking care when fitting and removing accessories.
23.3. Interior – Flooring, Luggage Areas
a) Acceptable
i. Staining and dirt on carpets and lining fabrics - Provided steam cleaning will satisfactorily remove it.
ii. Any wear that is due to age or expect through normal usage
b) Unacceptable
i. Cuts, rips or tears to carpets or lining fabrics
ii. Burns - Causes: cigarettes, lighters etc.
iii. Any permanent staining on carpets or lining fabrics - Causes: oil, paint, chewing gum etc.
c) Recommendations
i. Ensure that any floor mats supplied with vehicle remain in the foot well and are returned with the vehicle. Replace them if they wear through
ii. Ensure interiors are regularly cleaned
23.4. Exterior – Glass, Lamps, Mirrors
a) Acceptable
i. Light scratching and minor chipping of any windscreen or window glass
Provided it does not interfere with the driver’s vision and heating elements are not affected.
b) Unacceptable
i. Any hole or crack in lamp glass or lens
ii. Any damage to mirror
c) Recommendations
i. Fitting of headlight protectors can minimise damage to lamps - ALL exterior windscreens and body glass features must be in roadworthy condition.
23.5. Exterior – Bodywork
a) Acceptable
i. Minor/occasional paint chips that can be attributed to normal use e.g. stone chips
ii. Isolated dents under 10mm in diameter - Provided paint work or another surface finish is unbroken and no visible crease
iii. Isolated scratches under 20mm in length that can be removed by buffing
b) Unacceptable
i. Excessive or uneven paint fading
ii. Heavily soiled vehicle
iii. Tree Sap or other organic stains
iv. All hail damage
v. Bird/bat stains
vi. Multiple dents within area
vii. Dents over 10mm
viii. Any dent where primer or metal is exposed
ix. Any tear or rip to panels
x. Any unacceptable standard of repair work
xi. Excessive Chipping
c) Recommendations
i. Vehicle not to be used unsuitable terrain for vehicle
ii. Promptly repair, to a high standard, any bodywork damage
iii. Regularly wash vehicle
23.6. Exterior – Bumpers, Bumper Strips, Number Plates
a) Acceptable
i. Scratching and scuffing that is under 25mm in length - Provided there are no cracks or dents and structure is unharmed
ii. Isolated minor dents up to 10mm in diameter - Provided paintwork or other surface finish is unbroken and no visible crease
b) Unacceptable
i. Scratching or scuffing over 25m and primer or metal is exposed
ii. Any dent over 10mm in diameter
iii. Bumper with excessive scuffing
iv. Bumpers, bumper strips or number plates that are cracked, broken, missing or otherwise severely deformed
c) Recommendations
i. Vehicle not to be used unsuitable terrain for vehicle
ii. Promptly repair, to a high standard, any bodywork damage
iii. Regularly wash vehicle
23.7. Exterior – Signage
a) Unacceptable
i. Any damage to signs/decals caused by dents or scratches
ii. Damage to paint by removal of trade/business signs.
b) Recommendations
i. Vehicle not to be used unsuitable terrain for vehicle
ii. Promptly repair, to a high standard, any bodywork damage
iii. Regularly wash vehicle
23.8. Exterior – Wheels, Tyres (including Trim and Tools)
a) Acceptable
i. Light damage to wheel rims - Must meet Road Worthy Certificate standards
b) Unacceptable
i. Any significant damage to rim or main body of any wheel including spare tyres
ii. Any missing item(s) - Including spare wheel, tools and rims
iii. Any significant damage to sidewalls of tyres - Causes: hitting kerbs etc
iv. Incorrect replacement tyres not suited for the vehicle - Must meet manufacturer for type, size and speed rating
v. Replacement wheels that do not match those originally supplied with the vehicle
vi. Unroadworthy tyres
vii. Badly damaged wheel trims
23.9. Exterior – Accessories
a) Acceptable
i. Removal of any accessory fitted at Hirer’s expense e.g. towbar - Any damage during removal is to be corrected
b) Unacceptable
i. Any damage to aerial or flag/flag bracket
ii. Damage because of incorrect accessory fitting
iii. Damage caused by accessory removal
iv. Removal of any item supplied with the Vehicle by the Company.
23.10. Exterior – Mechanical Condition and Vehicle Underside
a) Acceptable
i. Cooling systems - Minor dents as long as radiator core is clear, unobstructed and otherwise undamaged
ii. Underbody Components - Minor damage that does not affect safety, road worthy or derivability of vehicle
iii. Machinery Parts - Hydraulic arms and other such parts to be correctly functioning and maintained
b) Unacceptable
i. Cooling systems - Radiator core obstructed or damaged e.g. dents or debris
ii. Underbody Components - Please note underbody includes drive train, chassis, steering, suspension, brakes, exhaust, floor pan, fuel systems, bash-plates. Must be in a roadworthy condition.
iii. Underbody damage - Corrosion caused by prolonged exposure without sufficient and regular cleaning; significant damage rendering the vehicle unsafe and/or unroadworthy;
iv. Underbody cleanliness - Underbody must be kept clean and free from mud and road materials to allow for a true assessment of underbody components
c) Recommendations
i. Pre starts as set out in the Hire Agreement Terms
ii. Vehicle to be maintained to a safe and roadworthy condition