HIRE CONTRACT CONDITIONS
These Hire Contract Conditions apply to the exclusion of any other conditions proposed by the Customer, unless otherwise agreed by Digger Doctor and the Customer in writing. Digger Doctor agrees to hire Equipment to the Customer on terms set out in this document. If the Customer wishes to hire Equipment the Customer must complete and sign (or otherwise accept in the manner required by Digger Doctor) a Hire Schedule and such other documents as Digger Doctor may require. Each Hire Schedule is not a separate contract but forms a part of this hire agreement between Digger Doctor and the Customer, together with any credit application, guarantee and indemnity or other contractual documents. The customer agrees to receive hire schedules and all associated documentation by electronic means. Digger Doctor may in its absolute discretion decline to hire Equipment to the Customer at any time if it has reasonable cause to do so.
1) Interpretation of Words in this Contract;
Commencement – The date when the Customer takes possession of the Equipment.
Equipment – Means any kind of equipment, vehicles or tools and includes tools and parts and accessories for any of the foregoing.
Hire Charge – The amounts shown on the Hire Schedule payable by the Customer to hire the Equipment.
Hire Period – Means from Commencement until the end of the period shown on the Hire Schedule. The Hire Period may only be extended for one or more definite periods and in each case this can only be done if the Customer requests it and if Digger Doctor agrees. Digger Doctor may issue and require the Customer to sign an amended Hire Schedule for any extension of the Hire Period. However, the hire charge shall continue until the customer returns all of the equipment to Digger Doctor’s specified premises at the rate specified in the Hire Schedule.
Hire Schedule – Means a document which Digger Doctor may require the Customer to sign (or accept in a way Digger Doctor requires) including particulars of the Equipment and the Hire Period and such other information as Digger Doctor may require.
Digger Doctor –Digger Doctor Pty Ltd (A.C.N. 625 584 894)
Kilometer Charge – Means the charge by Digger Doctor for the delivery and installation and the collection of the equipment, if this is undertaken by Digger Doctor
Remote Area – Any location which is more the 25 kilometers from the Digger Doctor branch from where the Equipment is hired.
2) Digger Doctor Obligations
Digger Doctor will:
a) Allow the Customer to take and use the Equipment for the Hire Period;
b) Provide the Equipment to the Customer clean and in good working order;
c) Collect the Equipment within 2 days of being requested by the Customer
3) Obligations of the Customer; The Customer must:
a) Deliver the Equipment to Digger Doctor when it is due back;
b) Return the Equipment to Digger Doctor clean and in good repair;
c) Satisfy itself at Commencement that the Equipment is suitable for its purposes;
d) Operate the Equipment safely, strictly in accordance with the law, only for its intended use, and in accordance with any manufacturer’s instructions supplied by Digger Doctor or posted on the Equipment;
e) Indemnify Digger Doctor for all injury and/or damage to the extent caused or contributed to by the Customer to persons and property in relation to the Equipment and its operation and have adequate insurance to cover all liabilities incurred as a result of the use or location of the Equipment, or arising for any other reason in relation to the equipment;
f) Ensure that any person collecting or taking delivery of Equipment on behalf of the Customer is authorized by the Customer to do so and the Customer will not allege that any such person is not so authorized;
g) Ensure that all persons operating or storing the Equipment are suitably instructed in its safe and proper use and location and where necessary hold a current Certificate of Competency and/or are fully licensed under the laws applying in the State of New South Wales;
h) Conduct a thorough hazard and risk assessment before using the Equipment and comply with all Occupational Health and Safety laws (applying in the State of N.S.W.) relating to the Equipment and its operation;
i) Safely secure all items loaded in or on the Equipment or in or on the Customer’s vehicle, and indemnify Digger Doctor in respect of any injury and/or damage caused by items falling from the Equipment or from any vehicle or trailer whether operated by or on behalf of the Customer or otherwise;
j) Customer must have tow vehicle lawfully capable of towing the loaded plant trailer. Tow vehicle must have an operational electric brake controller fitted;
k) Report and provide full details to Digger Doctor of any accident or damage to the Equipment within 2 hours of the accident or damage occurring
l) NOTE TO CUSTOMER: You must return the Equipment at your expense when due back unless Digger Doctor agrees in writing to some other arrangement
The Customer must NOT;
a) Tamper with, damage or repair the Equipment;
b) Lose or part with possession of the Equipment;
c) Rely upon any representation relating to the Equipment or its operation other than those contained in this Contract
d) Allow any person to operate the equipment if the person:
i) does not hold a suitable licence to do so; or
ii) Is affected by drugs and/or alcohol.
e) Exceed the recommended or legal load and capacity limits of the Equipment;
f) Use or carry any illegal, prohibited or dangerous substance in or on the Equipment.
g) Exceed the recommended or legal speed limit for the Equipment.
4) Payments by the Customer to Digger Doctor
a) A $100 holding deposit and an accepted quote from the customer is required to confirm the requested dates set out in the preliminary hire schedule.
b) Holding deposit; the $100 holding deposit will be deducted on payment of the agreed total hire amount.
c) Cancellation; Full refund of the $100 holding deposit will be given up until 24hrs prior to the commencement of the agreed hire period. Cancellations within the 24hrs prior to the commencement of the hire period, the hirer will forfeit the $100 holding deposit.
d) On or before Commencement (or as otherwise specifically agreed with Digger Doctor), the Customer will pay the Hire Charge.
e) Payment methods; Direct bank deposit, Cash on delivery or Credit card.
f) Immediately on request by Digger Doctor, the Customer will pay:
i) the new list price of any Equipment which is for whatever reason not returned to Digger Doctor. (NOTE TO CUSTOMER: Subject only to any express provision of this Contract to the contrary, the Customer is responsible for the possession, use, storage and security of the equipment, and is responsible for loss or theft of, or damage to the Equipment),
ii) all costs incurred in cleaning the Equipment;
iii) the full cost of repairing any damage to the Equipment while still hired to the customer, whether or not caused or contributed to by the Customer, unless expressly agreed otherwise in writing by Digger Doctor
iv) stamp duties, GST, any other taxes or duties, and all tolls, fines, penalties, levies or charges payable in respect of this Contract or arising from the Customer’s use of the Equipment;
v) all costs incurred by Digger Doctor in delivering and recovering possession of the Equipment;
vi) Interest for late payment of amount owing by the customer at the pre-judgement interest rate set by the Local Court of NSW from time to time.
vii) a late payment fee calculated daily at 3% per month on all amounts owing by the Customer not paid on time;
viii) the Kilometer Charge and any additional Hire Charges;
ix) the cost of fuels and consumables provided by Digger Doctor and not returned by the Customer;
x) any expenses and legal costs (including commission payable to a commercial agent) incurred by Digger Doctor in enforcing this Contract due to any act or omission of the Customer;
xi) all costs of repairing or replacing tyres, including road service; and
xii) if any damage and/or theft waiver applies, the amount for which the Customer is liable is as set out in this Contract.
g) Without limiting the ability of Digger Doctor to recover all amounts owing to it, the Customer authorises Digger Doctor to charge any amounts owing by the Customer to any credit or debit card or any bank or other account details of which are provided to Digger Doctor.
h) Digger Doctor may tokenise the Customers Credit Card or Account details to facilitate credit card or online payments.
5) PPS LaW
a) This clause applies to the extent that this Contract provides for a ‘security interest’ for the purposes of the Personal Property Securities Act 2009 (Cth) (“PPS Law”). References to PPS Law in this agreement include references to amended, replacement and successor provisions or legislation
b) If Digger Doctor does not have at Commencement a PPS Law registration ensuring a perfected first priority security interest in the Equipment, the Hire Period, (including any extension of the Hire Period or the aggregate of consecutive Hire Periods during which the Customer has substantially uninterrupted possession) may not despite anything else in this document or any Hire Schedule be longer than:
i) 90 days in the case of Equipment which may or must be described by serial number in a PPS Law registration; or
ii) a year in any other case.
c) Digger Doctor may register its security interest. The Customer must do anything (such as obtaining consents and signing documents) which Digger Doctor requires for the purposes of:
i) ensuring that Digger Doctor’ security interest is enforceable, perfected and otherwise effective under the PPS Law;
ii) enabling Digger Doctor to gain first priority (or any other priority agreed to by Digger Doctor in writing) for its security interest; and
iii) enabling Digger Doctor to exercise rights in connection with the security interest.
d) The rights of Digger Doctor under this document are in addition to and not in substitution for Digger Doctor’ rights under other law (including the PPS Law) and Digger Doctor may choose whether to exercise rights under this document, and/or under such other law, as it sees fit. To avoid any doubt about it Digger Doctor‘s security interest will attach to proceeds.
e) To the extent that Chapter 4 of PPSA applies to any security interest under this
f) The rights of Digger Doctor under this document are in addition to and not in substitution for Digger Doctor’ rights under other law (including the PPS Law) and Digger Doctor may choose whether to exercise rights under this document, and/or under such other law, as it sees fit. To avoid any doubt about it Digger Doctor security interest will attach to proceeds.
g) To the extent that Chapter 4 of PPSA applies to any security interest under this agreement, the following provisions of the PPS Law do not apply and, for the purposes of section 115 of the PPS Law are “contracted out” of this agreement in respect of all goods to which that section can be applied: section 95 (notice of removal of accession to the extent it requires Digger Doctor to give a notice to the Customer); section 96 (retention of accession); section121(4) (notice to grantor); section125 (obligations to dispose of or retain collateral); section 130 (notice of disposal to the extent it requires Digger Doctor to give a notice to the Customer); section 129(2) and 129(3); section 132(3)(d) (contents of statement of account after disposal); section 132(4) (statement of account if no disposal); section 135 (notice of retention); section 142 (redemption of collateral); and section 143 (re-instatement of security agreement).
h) The following provisions of the PPS Law: section 123 (seizing collateral); section 126 (apparent possession); section 128 (secured party may dispose of collateral); section 129 (disposal by purchase); and section 134(1) (retention of collateral) confer rights on Digger Doctor. Customer agrees that in addition to those rights, Digger Doctor shall, if there is default by Customer, have the right to seize, purchase, take possession or apparent possession, retain, deal with or dispose of any goods, not only under those sections but also, as additional and independent rights, under this document and the Customer agrees that Digger Doctor may do so in any manner it sees fit including (in respect of dealing and disposal) by private or public sale, lease or licence.
i) The Customer waives its rights to receive a verification statement in relation to registration events in respect of commercial property under section 157 of the PPS Law.
j) Digger Doctor and the Customer agree not to disclose information of the kind that can be requested under section 275(1) of the PPS Law. The Customer must do everything necessary on its part to ensure that section 275(6)(a) of the PPS Law continues to apply. The agreement in this sub-clause is made solely for the purpose of allowing to Digger Doctor the benefit of section 275 (6)(a) and Digger Doctor shall not be liable to pay damages or any other compensation or be subject to injunction in respect of any actual or threatened breach of this sub-clause.
k) Customer must not dispose or purport to dispose of, or create or purport to create or permit to be created any ‘security interest’ (as defined in PPS Law) in the Equipment other than with the express written consent of Digger Doctor.
l) Customer must not lease, hire, bail or give possession or sub-hire of the Equipment to any other party,
m) To assure performance of its obligations under this agreement, the Customer hereby gives Digger Doctor an irrevocable power of attorney to do anything Digger Doctor considers the Customer should do under this agreement. Digger Doctor may recover from Customer the cost of doing anything under this clause 5, including registration fees and legal costs
6) Exclusion of Warranties and Liabilities.
a) Where the Australian Consumer Law applies, the Customer has the benefit of guarantees in relation to the hire of the Equipment which cannot be excluded.
b) Where the Australian Consumer Law applies and the goods are not of a kind ordinarily acquired for personal domestic or household use or consumption, Digger Doctor Liability in respect of any guarantee is limited to the replacement or repair of the goods, or the cost of having the goods repaired or replaced.
To the extent that the Australian Consumer Law (or any other law which cannot be excluded) does not apply Digger Doctor makes no representations and gives no warranties other than those set out in these Hire Contract Conditions, and will not be liable to the Customer for any damages, costs or other liabilities whatsoever (including for consequential loss) in relation to the hiring of the Equipment by the Customer.
7) Remote Hire
a) Where the Equipment is at any time hired by the Customer to be located in the Remote Area, the following clauses will also apply, in addition to the obligations of the Customer under Clause 3 and elsewhere in these Hire Contract Conditions;
i) The Customer will pay an additional charge for any delivery, servicing and repair of the Equipment, and for any other attendance at the Remote Area by Digger Doctor (‘Remote Area Charges’). The Remote Area Charges will be calculated on a per kilometer rate travelled by Digger Doctor staff to and from the Remote Area, plus labour costs per staff member per hour (including travelling times) at scheduled rates, plus direct travelling cost including all airfares and accommodation charges incurred by Digger Doctor and its staff in connection with travel to and from the Remote Area;
ii) Multiple items of Equipment hire by a Customer on the one site will only be charged for one call out fee;
iii) The Customer is responsible at its cost for daily maintenance and care of all Equipment in its possession, including daily checking of all fluids (fuel, oil, water, battery levels etc) and general tightening of any loose nuts, bolts, belts or fittings and lubrication of all grease points.
8) Breach of Hire Contract by Customer
If the Customer breaches any clause whatsoever of this Contract and does not remedy the breach within 7 days notice of the breach, or becomes bankrupt, insolvent or ceases business then
a) Digger Doctor shall be entitled to:
i) terminate this Contract; and/or
ii) sue for recovery of all monies owing by the Customer; and/or
iii) repossess the Equipment (and is authorized to enter any premises where the Equipment is located to do so), and any Damage and/or Theft Waiver referred to in clause 6 is immediately invalidated.
b) The Customer indemnifies Digger Doctor in respect of any damages, costs or loss, to the extent caused or contributed to by the customer resulting from a breach by the Customer of any provision of this Contract.
9) Disputes
a) The Customer must immediately check all Hire Charges, and any disputes in relation to those Hire Charges must be communicated to Digger Doctor in writing within 14 days of the Hire Contract date. In the event that no communication is received from the Customer within that 14 day period, the Hire Charges are deemed to be accepted by the Customer.
b) If a dispute arises relating to this Contract, the hiring or the use of the Equipment (except in regard to payments due to Digger Doctor), the parties agree to negotiate to settle the dispute with the assistance of the Hire and Rental Association of Australia before litigation.
10) Privacy
a) Digger Doctor will comply with the Australian Privacy Principles in all dealings with Customers. A copy of the Digger Doctor Privacy Statement is available upon request or by visiting. www.Digger Doctor.com.au.
11) Governing Law
a) This Hire Contract is a payment claim under the Building and Construction Industry Security of Payment Act 1999 NSW, the Building and Construction Industry Security of Payment Act 2002 VIC, the Building and Construction Industry Payments Act 2004 QLD, the Building and Construction Industry Security of Payment Act 2009 SA, the Construction Contracts Act 2004 WA, the Building and Construction Industry (Security of Payment) Act 2009 ACT, the Building and Construction Industry Security of Payment Act 2009 TAS, and/or the Construction Contracts (Security of Payments) Act 2009 NT.
b) Except where Digger Doctor in its discretion takes action against the Customer under any of the Building and Construction Industry legislation referred to in this clause, Digger Doctor and the Customer agree that this Contract is governed by the law applying to the state of New South Wales, and the parties submit to the jurisdiction of the courts applying those laws..