TERMS AND CONDITIONS OF AGREEMENT
HIRE OF VEHICLES AND/OR TRAILERS
In this agreement vehicles and/or trailers means any item in a Schedule as defined below and including parts and accessories.
The owner and the Hirer (taken to mean both the Hirer and approved Additional Hirer) enter into this agreement to provide for the hiring of the vehicle and/or trailer. The owner may decline to hire a vehicle and/or trailer in its sole discretion.
If the hirer wishes to hire a vehicle and/or trailer, the owner will require the hirer to sign a hire schedule, order, delivery docket or similar document (Schedule) normally in the form of Attachment or any other form required by the owner from time to time.
The Schedule may list the vehicle and/or trailer taken for hire, applicable charges, hire commencement and termination date and such other information and provisions as the owner requires. The Schedule must be read together with and forms part of this agreement incorporating all of the provisions of this agreement. The agreement includes the terms and conditions below.
VEHICLE AND/OR TRAILER HIRE:
- The hire of the vehicle and/or trailer specified in the Schedule will commence from the commencement date specified in the Schedule and continue for the period specified in the Schedule.
- The Hirer, is entitled to use the vehicle and/or trailer for the hire period subject to the terms of this agreement. Any extension of the hire period must be expressly agreed to by the owner before the expiration of the hire period.
- The hirer agrees to return the vehicle and/or trailer to the address identified by the owner on or before the end of the hire period as outlined in the Schedule and acknowledges that failure to do so may be immediately reported to the police.
INSPECTION OF VEHICLE AND/OR TRAILER:
- Immediately prior to the commencement of the hire period specified in the Schedule, the hirer must inspect the vehicle and/or trailer to identify any pre-existing damage to the vehicle and/or trailer.
- Any pre-existing damage to the vehicle and/or trailer will be specified in the Schedule. The owner must approve the description of damage and may require the customer to do so also in writing.
NO PPS LEASE WITHOUT OWNER AGREEMENT:
- Despite anything else in this agreement, without the express written consent of the owner, the hire period (including any option or extension of it) cannot be longer than the period that is one day shorter than the time threshold for a ‘PPS lease’ under the Personal Property Securities Act 2009 (Cth) (PPS Law).
- The hirer must not create, purport to create or permit to be created any ‘security interest’ (as defined in PPS Law) in the vehicle and/or trailer other than with the express written consent of the owner.
- The hirer must not lease, hire, bail or give possession of the vehicle and/or trailer to anyone else unless the owner (in its absolute discretion) first consents in writing.
PAYMENT FOR HIRE:
- The hirer agrees to pay the owner the hire fee and the damage waiver fee specified in the Schedule for the use of the vehicle and/or trailer for the hire period including any applicable GST, stamp duties, tolls, fines, penalties, levies or freight and other charges relevant to this agreement and the hire.
- The required fees must be paid to the owner prior to or on the commencement date of the hire period and when otherwise due and payable periodically under the Schedule or as agreed with the owner. Hirers who do not pay on any terms agreed will be in default. Vehicles and/or trailers not returned on time and in accordance with this agreement will be subject to a continuance of the agreed hire fee and other charges until return (if agreed) is complete, but this will not constitute an extension of the hire period.
- A reasonable cancellation fee may be charged by the owner where a vehicle and/or trailer has been reserved by booking and the hirer cancels the booking without reasonable notice.
- The owner may charge the hirer a reasonable fee for accepting payment by credit card and this may be up to the applicable permissible charge under legislation.
- Unless otherwise stated, the hire charges payable by the hirer in relation to the vehicle and/or trailer will be as stated in the applicable Schedule. The owner reserves the right at any time to revise the hire fees by providing the hirer with notice. However the hire fee cannot be increased during an agreed fixed term hire unless the hirer agrees to the increase. Where the increase in hire fees applies to vehicles and/or trailers already on hire by the hirer, the hirer may terminate this agreement and return the vehicle and/or trailer to the owner.
DAMAGE WAIVER FEE:
- Upon payment by the hirer of the damage waiver fee, the owner waives any claim it may have against the hirer for the cost of repairs or replacement of the vehicle and/or trailer due to damage occurring during its use under this agreement. The limitation is subject to payment of any excess payable by the hirer and the other terms of this agreement. This clause in no way entitles the hirer to, or implies the availability of, compensation from the owner for any liability incurred by the hirer to any third party in relation to the use of the hired vehicle and/or trailer.
- This clause ceases to operate at the end of the hire period unless an extension by the owner is granted in writing and an additional agreed fee is paid.
- This clause will not apply to loss or damage which arises from:
- breach of this agreement where the breach increases the risk of loss or damage;
- breach of any statute or other law or regulations in connection with the use of the vehicle and/or trailer by the hirer;
- misuse, abuse, wilful and/or malicious acts, negligent and/or reckless use and/or overloading of the vehicle and/or trailer;
- theft, loss or damage by whatever cause to accessories supplied with the vehicle and/or trailer including but not limited to leads, tyres and tubes;
- lack of lubrication or non-adherence to other normal maintenance requirements that are required by or could reasonably be expected of the hirer under this agreement;
- disregard for instructions given to the hirer by the owner in respect of the proper use of the vehicle and/or trailer or in contradiction of the manufacturer’s instructions if supplied with the vehicle and/or trailer at the commencement of hire;
- unexplained disappearance of the vehicle and/or trailer;
- theft of the vehicle and/or trailer in circumstances where site security is available including, but not limited to, locked yards, buildings and sheds, where proper security is not used by the hirer to secure the vehicle and/or trailer it is left unattended; or
- loading or off loading vehicles and/or trailers from maritime vessels, transportation of vehicles and/or trailers on maritime vessels or the use of vehicles and/or trailers on any wharf or bridge or over any body of water
USE, OPERATION AND MAINTENANCE
- The hirer agrees that the use of the vehicle and/or trailer carries with it inherent dangers and risks of injury and the hirer agrees to accept all those dangers and risks.
- The vehicle and/or trailer must not be used by anyone other than the hirer without the express permission of the owner.
- The hirer agrees to operate, maintain, store and transport the vehicle and/or trailer in a proper manner and where required strictly in accordance with any instruction provided by the owner and with due care and diligence.
- The hirer agrees that the vehicle and/or trailer will only be used for its intended purpose and in accordance with any manufacturer’s instructions and recommendations whether supplied by the owner or posted on the vehicle and/or trailer in regard to its operation, maintenance and storage.
- The hirer agrees to comply with all occupational health and safety laws and regulations relating to the use of the vehicle and/or trailer and associated operations.
- The hirer must ensure the vehicle and/or trailer is returned to the owner clean of all foreign matter or agrees to a reasonable cleaning fee being charged by the owner.
- The reasonable costs of fuel or other consumables provided by the owner and used by the hirer are to be paid to the owner when required by the owner.
- The hirer agrees that:
- the vehicle and/or trailer will be used in accordance with the conditions outlined in the Schedule.
- the particulars in the Schedule are correct in every respect and are not misleading in any way including, without limitation, by omission.
- the hirer and/or all its relevant personnel hold a valid current driver’s licence, operating licence or permit valid for the type of vehicle and/or trailer hired.
- The Hirer must not allow any person other than the approved Additional Hirer to use the vehicle and/or trailer.
- You are responsible for the acts and omission of an Authorised Driver or any other person You allow to drive the Vehicle and/or use the trailer and if You allow an unauthorised driver to drive the Vehicle and that unauthorised driver causes loss of or damage to the Vehicle or damage to the property of a third person.
- the vehicle and/or trailer will not be used for any illegal purpose.
- the hirer’s vehicle is suitable for towing a trailer.
- the hirer will not, without prior written consent of the owner, tamper with, repair or modify the vehicle and/or trailer in any way, or permit another to do so.
- the hirer will not remove the vehicle and/or trailer from the State or Territory in which it is hired without the prior approval of the owner.
SECURITY OF VEHICLE AND/OR TRAILER
- The hirer acknowledges and agrees that:
- the owner may install certain devices in the vehicle and/or trailer to ensure the security of the vehicle and/or trailer, including but not limited to GPS locator, cameras and audio recording devices.
- the hirer must not deface, damage, attempt to remove or otherwise interfere with the operation of any such devices;
- the owner may use and/or release any data obtained from such devices to locate it or in the event of damage or loss of the vehicle and/or trailer or its unlawful use, including release to such third parties as the owner considers appropriate.
INDEMNITY AND LIABILITY
- To the full extent permitted by law the hirer releases and indemnifies the owner from all claims on the owner arising out of the use of the vehicle and/or trailer and the hirer assumes all risks in respect of the vehicle and/or trailer and for all injury to or deaths of persons and any damage to property arising from the hirer’s possession, use, storage or transportation of the vehicle and/or trailer. However this release and indemnity does not apply to the extent of anything arising from the negligence or default of the owner.
- To the full extent permitted by law the owner excludes any implied or imposed guarantee, term, condition, warranty, undertaking, inducement or representation in relation to this document (Provision). To the extent to which the owner is not able to exclude a Provision (Non-Excludable Provision), and the owner is able to limit the hirer’s remedy for a breach of the Non-Excludable Provision, then the owner’s liability for breach of the Non-Excludable Provision is limited to (at the owner’s election):
- in the case of goods, the repair or replacement of the goods or the supply of equivalent goods (or the payment of the cost of doing so); and
- in the case of services, the supplying of the services again (or the payment of the cost of doing so).
- Subject to the owner’s obligations under the Non-Excludable Provisions, the owner is not liable to the hirer or any third party for any indirect loss or consequential loss arising in connection with this agreement or its subject matter, whether arising in or for breach of contract, negligence or other tort, breach of statutory duty, breach of warranty or guarantee or otherwise and whether or not that loss was foreseeable, even if the owner has been advised of the possibility of such loss.
LOSS, DAMAGE OR BREAKDOWN OF VEHICLE AND/OR TRAILER
- Subject only to the provisions for damage waiver in this agreement the hirer will be responsible for any loss or damage to the vehicle and/or trailer except for fair wear and tear, during the hire period. The hirer is liable for the payment of the full replacement value of any vehicle and/or trailer not returned to the owner.
- If there is a breakdown or failure of the vehicle and/or trailer the hirer shall notify the owner immediately for the appropriate action to be taken.
- Without prejudice to any other remedies the owner may have against the hirer and notwithstanding the period of hire specified in any Schedule, this hire agreement and any hire may be terminated by the owner as follows: (A)without prior notice if the hirer becomes bankrupt, has a winding-up petition presented against it, or is wound up, or has a receiver of any of its assets appointed, or it makes an assignment /compromise for the benefit of its creditors or if it is placed under administration.
- The owner may terminate this agreement at any time if the other party breaches the agreement and the breach cannot be, or is not, rectified within 2 days after the owner sends written notice to the hirer specifying the breach and requesting rectification. The owner may also terminate this agreement immediately if the hirer commits a material breach of it.
- The owner may seek compensation from the hirer for a breach of this agreement including for loss of revenue whilst the vehicle and/or trailer is not able to be hired to others (for example due to damage) and/or loss of rental that would have been earned had termination not occurred. This does not limit the owner’s other rights at law.
- If the hire agreement is terminated by the owner in accordance with this agreement, the hirer must immediately pay all outstanding hire fees to the owner and must return the vehicle and/or trailer to the owner.
TITLE TO THE VEHICLE AND/OR TRAILER
- The hirer acknowledges that the owner retains title to the vehicle and/or trailer and that the hirer has rights to use the vehicle and/or trailer as a mere bailee only. The hirer agrees that the hirer has no rights to pledge the owner’s credit in connection with the vehicle and/or trailer.
- The hirer agrees not to agree, offer or purport to sell, assign, sub-let, lend, pledge, mortgage let or hire or otherwise part with or attempt to part with personal possession or otherwise not to deal with the vehicle and/or trailer and not to conceal or alter the goods or make any addition or alteration to the vehicle and/or trailer.
REPOSSESSION AND REMEDIES ON DEFAULT
- The owner may retake possession of the vehicle and/or trailer if:
- the hire is terminated or becomes liable to be terminated by the owner;
- the hirer does not pay amounts owing to the owner as when due.
- In the case of repossession due to a breach of this agreement the hirer grants the owner permission to enter any premises where the vehicle and/or trailer listed in the Schedule is situated to disconnect, decommission and/or remove that vehicle and/or trailer.
- In addition to the owner’s right to retake possession the owner is entitled in its discretion, following any breach of any provision of this agreement by the hirer, to terminate this agreement and/or sue for recovery of any damages or charges or loss suffered by the owner, and/or to cancel any insurances effective in respect of the vehicle and/or trailer hired.
COMPLETION OF THE HIRE
- The vehicle and/or trailer must be returned to the owner in the same condition as when it was hired. Return must be by the date and time outlined in the Schedule.
- The agreements and obligations contained in this agreement will not merge or terminate upon the termination of this agreement and to the extent that they have not been fulfilled or satisfied or are continuing obligations they will remain in force and effect.
- If any clause, term or provision of this agreement is legally unenforceable or is made inapplicable, or in its application would breach any law, that clause, term or provision shall be severed or read down, but so as to maintain (as far as possible) all other terms of the agreement.
- This agreement is governed by the laws of the State or Territory where the agreement is made and each party submits to the exclusive jurisdiction of the Court of that State or Territory.