Rental Agreement

Dry Hire Equipment Rental Agreement

BETWEEN

DW LOFTUS PTY LIMITED ACN 677 778 862
trading as DARREN LOFTUS BUILDING AND HIRE ABN 27 677 778 862 having its registered office at 286 Conadilly Street, Gunnedah in the State of New South Wales (of the first part)

AND
Select one(Required)
Name(Required)
Address
having its registered office at
Address(Required)
in the State of New South Wales.
(hereinafter referred to as the “User”)

1. DEFINITIONS AND INTERPRETATION
• “Equipment” shall mean the plant or equipment listed in the Rental Schedule (Annexure “A” hereto), rented by the User from the Owner in terms hereof.
• “Rental Schedule” shall mean the schedule, annexed hereto marked Annexure “A”, detailing the Equipment rented, cost, duration of rental and intended location of Equipment.
• “User” shall mean the individual or business entity that rents the Equipment from the Owner.
• “Owner” shall mean DW Loftus Pty Limited [ACN 677 778 862] trading as Darren Loftus Building and Hire [ABN 27 677 778 862] having its registered office at 286 Conadilly Street, Gunnedah in the State of New South Wales.

2. RENTAL AND DURATION
• The User shall rent from the Owner the Equipment listed in the Rental Schedule on the terms and conditions set forth herein.
• The User shall rent the Equipment for the period of time specified in the Rental Schedule (“Rental Period”). Any variation to the Rental Period must be agreed to by the Owner in writing.
• On the specified End Date, or upon termination of this Agreement for any reason, the User shall return the Equipment to the Owner, together with the keys, accessories and instruction books in the same state of repair as when rented.
• The Rental Period includes weekends and public holidays.

3. PAYMENT AND COSTS
• The User shall be liable to pay to the Owner the Rental Costs stipulated on the Rental Schedule on the terms set forth therein.
• In the event that the Rental Period is extended by agreement, daily Rental Costs, on the same rate as stipulated in the Rental Schedule, shall accrue per day for the extended Rental Period and shall be payable by the User to the Owner immediately upon return of the Equipment at the end of the extended Rental Period.
• The User shall be liable to pay to the Owner, immediately upon demand, incidental Rental Costs for any Equipment not timeously returned to the Owner at the end of the Rental Period, which incidental Rental Costs shall be calculated per day that the Equipment is returned late on the full daily rate agreed to in the Rental Schedule. In addition, the User shall bear all costs, penalties and damages suffered by the Owner due to the Equipment not being available for subsequent scheduled rentals.
• The User shall be solely liable to, immediately upon demand, pay GST and all other applicable taxes, duties, levies, penalties, road tolls, and any other government charges arising out of this Agreement. This includes any fines or penalties arising out of the User’s use or transport of the Equipment.
• The User shall not be entitled to any discount or refund if the Equipment is not used by the User for any part of the Rental Period, including the Equipment being returned prior to the stipulated end date of the Rental Period.

4. INSPECTIONS AND SECURITY DEPOSIT
• The User shall pay to the Owner a security deposit to the value of 10% of the total Rental Costs (“Security Deposit”) upon signature of this Agreement and prior to release of the Equipment. No interest shall accrue on the Security Deposit during the period of the Agreement. This clause shall not merge upon completion.
• Upon collection of the Equipment, a joint inspection of the Equipment shall be conducted by the parties and a list of defects found during said inspection shall be compiled and initialled by both parties.
• The User, by accepting the Equipment, acknowledges having inspected the Equipment and, save for the defects noted during the inspection, having received the Equipment in a good and roadworthy condition, free of any defects or damage.
• Upon return of the Equipment, the parties shall conduct another joint inspection of the Equipment and note any defects or damages to the Equipment in comparison to the defect list compiled at the time of collection of the Equipment.
• Once the Owner is satisfied that the Equipment has been returned in good order along with all keys, accessories and instruction books, and once all obligations due by the User to the Owner in terms of this Agreement have been discharged, including but not limited to compensation for incidental Rental Costs, damage repair costs, refuelling and cleaning costs, the Owner shall refund to the User, free of interest, so much of the Security Deposit that as has not been applied towards settlement of any amounts owing by the User to the Owner in terms of this Agreement. This clause shall not merge upon completion.

5. OWNERSHIP AND RISK
• Ownership of the Equipment shall at all times remain vested in the Owner and the rights of the User to use the Equipment are as lessee only. It is recorded that this Agreement is a rental agreement only and as such the User will not assume ownership of the Equipment upon the expiry of this Agreement, nor is the Owner under any obligation to offer the Equipment for sale to the User. The User will not be entitled to offer, sell, assign, sub-let, mortgage, pledge or otherwise deal with the Equipment in any way which is inconsistent with the rights of the Owner as owner of the Equipment.
• The risk in the Equipment shall pass to the User at delivery of the Equipment to, alternatively collection of the Equipment by, the User and shall remain with the User until such time as the Equipment is returned to the Owner.

6. CONDITIONS OF USE
• This Agreement is personal to the User and the User shall not, without the express written consent of the Owner, allow any other person or entity to use or have possession of the Equipment at any time during the Rental Period, sub-hire or cross hire the Equipment to a third party.
• The User shall not not in any way whatsoever deal with, dispose of, part with, abandon, sell, cede, assign, transfer or pledge the Equipment, allow it to become subject to any lien of whatsoever nature or create, purport to create, or permit to be created any “security interests” (as defined in the PPSA) in the Equipment.
• The Purchaser shall use the Equipment as per the Owner’s instructions and in accordance with the manufacturer’s instructions and manuals, which manuals have been provided to the User upon collection of the Equipment and which the User warrants it has read.
• The User must not, without the Owner’s written permission, move the Equipment to another site or storage location other than that specified on the Rental Schedule.
• The Equipment is rented to the User with a full tank of fuel and all Equipment is to be returned to the Owner at the end of the Rental Period with a full tank of fuel, failing which the User shall be liable for the cost of refueling the Equipment. Any such refueling cost incurred not charged to an account shall be payable by the User to the Owner immediately upon demand.
• All fuel costs incurred by the use of the Equipment during the Rental Period shall be solely for the User’s account.
• The Equipment is rented to the User in a clean condition and is to be returned to the Owner at the end of the Rental Period free from waste and in a clean condition acceptable to the Owner in the Owner’s sole discretion, failing which the User shall be liable for the cost of cleaning the Equipment. Any such cleaning cost incurred not charged to an account shall be payable by the User to the Owner immediately upon demand.
• The User shall at all times operate the Equipment safely and not in a reckless or negligent manner, nor shall it use the Equipment, or allow it to be used, for any purpose for which it is not designed or intended to be used, or use the Equipment in circumstances that there may be an increased risk of danger, or a loss, or damage, or undue wear and tear, including conveying any materials or articles in the Equipment which may cause damage to its upholstery or any other part of the Equipment.
• The User shall ensure that the Equipment is used strictly in accordance with all laws, including but not limited to environmental and traffic laws.
• The User shall not cause or allow the Equipment to be neglected, abused, damaged, destroyed, modified either in terms of its body or its components, tamper with, remove or replace any of the Equipment’s components, alter, remove, deface or erase any identifying mark, plate, number, notices or safety information on the Equipment. The User shall at all times exercise due care, to the extent that the User will take all reasonable precautions to safeguard the Equipment against any loss, harm or damage, including but not limited to safely and securely storing the Equipment, and will allow the Owner and/or its servants and/or its agents all reasonable rights of access to the Equipment.
• The User shall ensure that persons operating the Equipment are competent, suitably trained, or instructed in its safe and proper use, and, where necessary hold a current certificate of competency and/or are licensed to use the Equipment. The User shall further ensure that all persons operating the Equipment wear suitable clothing and protective equipment and are not operating the Equipment whilst under the influence of alcohol, strong medication or any drugs.
• The User shall display, maintain and draw attention to safety signs and instructions (as required by law), and ensure that instructions are observed and signs are not removed or defaced.
• The User shall, at its own cost, conduct a site hazard assessment prior to using the Equipment at a site, including checking for underground infrastructure prior to commencing digging works.
• The User shall conduct daily pre-start checks and, in the event of a Rental Period in excess of 13 (thirteen) days, at its own cost, maintain, and if necessary replace, all filters, fuel, fuel additives, fluid and lubrication requirements for the Equipment on a daily basis, and in accordance with the manufacturer’s instructions, and the adhesive signage on the Equipment and use only fuel, oil, coolant, lubricants and filters specified by the Owner or the manufacturer.

7. EQUIPMENT BREAKDOWN
• If the Equipment breaks down or becomes unsafe to use during the Rental Period, the User shall:
- Immediately stop using the Equipment and notify the Owner;
- Take all steps necessary to prevent injury occurring to persons or property as a result of the condition of the Equipment;
- Take all steps necessary to prevent any further damage to the Equipment; and
- Not repair or attempt to repair the Equipment without the Owner’s written consent.
• If the breakdown was caused by the User due to the fault, negligence, recklessness or misuse by the User, or due to any breach by the User of this Agreement, be responsible for all costs incurred by the Owner in repairing the Equipment and continue to pay the Owner the agreed Rental Cost until such time that the Equipment is repaired or replaced. In addition, the User shall bear all costs, penalties and damages suffered by the Owner due to the Equipment not being available for subsequent scheduled rentals.
• If the Equipment breaks down or becomes unsafe to use through no fault, negligence, recklessness or misuse by the User, the Owner shall take all reasonable steps to repair the Equipment as soon as reasonably possible after being notified by the User and will not charge Rental Costs for that portion of the Rental Period for which the Equipment was broken down or unsafe.

8. LOST, STOLEN OR DAMAGED EQUIPMENT
• If the Equipment is lost, stolen or damaged in any way, or by anyone (including third parties) during the Rental Period, the User shall be liable to the Owner for:
- Any costs incurred by the Owner in recovering, repairing or replacing the Equipment;
- Any other costs whatsoever incurred or losses suffered by the Owner as a result of the loss, theft or damage to the Equipment;
- The Rental Cost for the balance of the Hire Period; and
- If the Equipment has not been repaired or replaced by the end date of the Rental Period, the User will continue to pay the Owner the daily Rental Cost as if the Equipment were rented to the User, until such time that the Equipment is repaired or replaced.
• This clause shall not merge upon completion.

9. INDEMNITY
• The User agrees that the rental of the Equipment and the use thereof during the Rental Period shall be at the User’s sole risk and responsibility, including but not limited to establishing the suitability of the Equipment rented for the intended purpose and conducting the site hazard assessment, and the Owner will not be liable for any damage, loss, or injury that the User may incur, or that may arise from any cause whatsoever except the negligence of the Owner, including any fault or other defect in the Equipment, and the User wholly indemnifies the Owner in this respect.
• To the maximum extent permitted by law, the Owner’s maximum aggregate liability for all claims under or relating to this Agreement or its subject matter, whether in contract, tort (including without limitation negligence), in equity, under statute, or under an indemnity, is limited to an amount equal to the Rental Cost paid by the User to the Owner under this Agreement.
• The Owner shall not be under any liability whatsoever to the User for consequential, indirect or special loss or damage (including loss of actual or anticipated profits or revenue, economic loss of any kind or any loss suffered as a result of any claims by third parties) in contract, tort (including negligence) under statute or otherwise from or in relation to the Equipment, the rental, use or breakdown thereof, or this Agreement, whether or not such loss or damage was foreseeable.
• Except to the extent caused by the negligence of the Owner, the User is liable for, and indemnifies the Owner, and its directors and employees against, all liability, damage, loss (including without limitation loss or damage to any property, or death or injury to any person), costs and expenses (including legal fees and on the higher of a full indemnity basis or a solicitor-client basis, and whether incurred or awarded against the Owner) arising from, or incurred in connection with, the User’s rental or use of the Equipment, or its breach of this Agreement. Each indemnity in this Agreement is a continuing obligation, separate and independent from the other obligations of the parties and survives termination, completion and expiration of this Agreement. It is not necessary for a party to incur expense or make any payment before enforcing a right of indemnity conferred by this Agreement. The User must pay on demand to the Owner any amount it must pay under an indemnity in this Agreement.
• Where the Owner gives advice, information, assistance and/or service to the User regarding the suitability or purpose of the Equipment, or in connection with the design, delivery times, dimensions, installation or use of the Equipment, then it is given as an estimated guide only, the User shall not be entitled to rely on such estimated guide and the Owner shall not be liable in any way for any damages, losses or costs however arising resulting from the User relying on any such estimated guide.
• This clause shall not merge upon completion.

10. BREACH
• In the event of a breach of this Agreement, the aggrieved party may call in writing on the other to remedy the breach within a period of fourteen (14) calendar days.
• If the breach remains unremedied after the aforesaid notice period has expired, the aggrieved party will be entitled, in addition to any rights they may have in terms of this Agreement or in law, but not compelled, to:
• claim immediate specific performance of all of the defaulting party’s obligations under this Agreement as well as immediate payment of all amounts which would have become due and payable in terms of this Agreement, notwithstanding that such amounts are not then due for payment. This clause shall not merge upon completion of this Agreement; or
• terminate the Agreement; and/or
• in either instance above, to claim damages from the defaulting party.
• In the event of either party being necessitated to institute legal proceedings against the other to enforce any right which it might have in terms of this Agreement or in law, the successful party shall be entitled to recover from the other all and any costs expended by the successful party, including legal costs on a solicitor‑client or full indemnity basis, whichever is the higher.

11. WARRANTIES BY THE OWNER
Save for those warranties and representations expressly given or made in this Agreement, no warranties or representations are given or made in respect of the Equipment, including but not limited to condition or suitability for any purpose, or any other matter relating thereto whatsoever, whether express, tacit or implied in respect of any document, information or representation made or furnished by the Owner, its agent or any other person. The User agrees that it shall not be entitled to make any objection or claim against the Owner in respect of any matter or thing relative to this clause whatsoever for compensation, except to the extent that such claim arises from a breach of this Agreement by the Owner or any damage that arises directly or indirectly due to the negligent or wilful act or omission of the Owner.

12. GENERAL WARRANTIES
• Each of the Parties hereby warrants to and in favour of the others that –
• it has the legal capacity and has taken all necessary corporate action required to empower and authorise it to enter into this Agreement;
• this Agreement constitutes an agreement valid and binding on it and enforceable against it in accordance with its terms; and
• the execution of this Agreement and the performance of its obligations hereunder does not and shall not –
• contravene any law or regulation to which that Party is subject;
contravene any provision of that Party's constitutional documents; or
• conflict with, or constitute a breach of, any of the provisions of any other agreement, obligation, restriction or undertaking which is binding on it.
• Each of the representations and warranties given by the Parties in terms of this clause shall –
• be a separate warranty and will in no way be limited or restricted by inference from the terms of any other warranty or by any other words in this Agreement;
• continue and remain in force notwithstanding the completion of any or all of the transactions contemplated in this Agreement; and
• be deemed to be material and to be a material representation inducing the other Parties to enter into this Agreement.

13. CERTIFICATE OF INDEBTEDNESS
A certificate signed by any manager or any director of the Owner reflecting any amount owing by the User to the Owner in terms hereof, and of the fact that such amount is due, owing and unpaid, shall be prima facie proof of the contents therein stated for the purpose of any action (whether by way of provisional sentence or otherwise) or alternative dispute resolution procedure, proof of debt on insolvency or for any purpose whatsoever where the amount of such claim is required to be established and it shall rest with the User to prove that such amount is not owing.

14. CESSION, ASSIGNMENT, MORTGAGE AND DISPOSAL
• The User may not assign, cede, mortgage, charge or otherwise dispose of all or any of its rights under this Agreement without the prior written approval of the Owner, which approval may not be unreasonably withheld or delayed.
• The Owner shall, at any time, in its sole discretion, be entitled to cede or assign all or any of its rights in terms of this Agreement to any third party without prior notice to the User.

15. WAIVER
• Failure of either party to require strict performance of any provision of this Agreement, or such party’s forbearance to exercise any right, shall not be deemed a waiver by or prejudice of such party of its right to require strict performance or exercise such right in the future.
• No latitude, indulgence, consent or forbearance or any other similar act by either party in enforcing any provisions of this Agreement shall constitute a variation or novation of this Agreement or a waiver of rights or estoppel in terms of this Agreement.

16. SEVERABILITY
In the event that any of the terms of this Agreement are found to be invalid, unlawful or unenforceable, such terms will be severable from the remaining terms, which will continue to be valid and enforceable.

17. ENTIRE AGREEMENT
Save for any Credit Application Incorporating Credit Agreement only, this Agreement embodies the entire agreement between the parties and no alteration or variation of any of the terms or conditions of this Agreement shall be of any force or effect unless it is recorded in writing and signed by both parties. Save for any Credit Application Incorporating Credit Agreement only, this Agreement shall supersede any former agreements between the parties, whether it be oral, written or implied.

18. CONTINUING EFFECTIVENESS OF CERTAIN PROVISIONS
The expiration or termination of this Agreement shall not affect such of the provisions of this Agreement as expressly provide that they will operate after any such expiration or termination or which of necessity must continue to have effect after such expiration or termination, notwithstanding that the clauses themselves do not expressly provide for continuation.

19. SIGNATURE, GOVERNING LAW AND JURISDICTION
• The individual signing this Agreement on behalf of a company personally warrants that he/she has the necessary authority to contract on behalf of the company in this regard and to bind the company to this Agreement.
• For the purposes of this clause, Electronic Signature means a visual representation of a person’s handwritten signature which is placed on this Agreement using an electronic signing platform agreed to by the parties and Electronically Signed has a corresponding meaning.
• This Agreement may be signed by or on behalf of a party using an Electronic Signature. • Where an Electronic Signature has been used by a party to sign this Agreement, that party warrants that their Electronic Signature was used to:
• Identify and authenticate the person signing; • Where the party is an individual, indicate that the person intended to be bound by the terms of this Agreement; and
• Where the party is a company, indicate that the person or persons intended to bind the company to the terms of this Agreement.
• Each party warrants that the placing of their Electronic Signature in accordance with this Agreement constitutes the delivery of this Agreement by the individual or the company (as the case may be).
• This Agreement may be signed in any number of counterparts and all such counterparts taken together shall be deemed to constitute one and the same document. Any counterpart may be Electronically Signed.
• Each party consents to the exchange of counterparts of this Agreement by delivery by e-mail or such other electronic means as may be agreed in writing.
• This Agreement shall be governed by the laws of New South Wales and the parties irrevocably submit to the non-exclusive jurisdiction of the Courts of that place.

Rental Schedule

Annexure “A” – Equipment and Rental Costs per item of Equipment per Day

Rental Agreement

Dry Hire Equipment Rental Agreement

BETWEEN

DW LOFTUS PTY LIMITED ACN 677 778 862
trading as DARREN LOFTUS BUILDING AND HIRE ABN 27 677 778 862 having its registered office at 286 Conadilly Street, Gunnedah in the State of New South Wales (of the first part)

AND
Select one(Required)
Name(Required)
Address
having its registered office at
Address(Required)
in the State of New South Wales.
(hereinafter referred to as the “User”)

1. DEFINITIONS AND INTERPRETATION
• “Equipment” shall mean the plant or equipment listed in the Rental Schedule (Annexure “A” hereto), rented by the User from the Owner in terms hereof.
• “Rental Schedule” shall mean the schedule, annexed hereto marked Annexure “A”, detailing the Equipment rented, cost, duration of rental and intended location of Equipment.
• “User” shall mean the individual or business entity that rents the Equipment from the Owner.
• “Owner” shall mean DW Loftus Pty Limited [ACN 677 778 862] trading as Darren Loftus Building and Hire [ABN 27 677 778 862] having its registered office at 286 Conadilly Street, Gunnedah in the State of New South Wales.

2. RENTAL AND DURATION
• The User shall rent from the Owner the Equipment listed in the Rental Schedule on the terms and conditions set forth herein.
• The User shall rent the Equipment for the period of time specified in the Rental Schedule (“Rental Period”). Any variation to the Rental Period must be agreed to by the Owner in writing.
• On the specified End Date, or upon termination of this Agreement for any reason, the User shall return the Equipment to the Owner, together with the keys, accessories and instruction books in the same state of repair as when rented.
• The Rental Period includes weekends and public holidays.

3. PAYMENT AND COSTS
• The User shall be liable to pay to the Owner the Rental Costs stipulated on the Rental Schedule on the terms set forth therein.
• In the event that the Rental Period is extended by agreement, daily Rental Costs, on the same rate as stipulated in the Rental Schedule, shall accrue per day for the extended Rental Period and shall be payable by the User to the Owner immediately upon return of the Equipment at the end of the extended Rental Period.
• The User shall be liable to pay to the Owner, immediately upon demand, incidental Rental Costs for any Equipment not timeously returned to the Owner at the end of the Rental Period, which incidental Rental Costs shall be calculated per day that the Equipment is returned late on the full daily rate agreed to in the Rental Schedule. In addition, the User shall bear all costs, penalties and damages suffered by the Owner due to the Equipment not being available for subsequent scheduled rentals.
• The User shall be solely liable to, immediately upon demand, pay GST and all other applicable taxes, duties, levies, penalties, road tolls, and any other government charges arising out of this Agreement. This includes any fines or penalties arising out of the User’s use or transport of the Equipment.
• The User shall not be entitled to any discount or refund if the Equipment is not used by the User for any part of the Rental Period, including the Equipment being returned prior to the stipulated end date of the Rental Period.

4. INSPECTIONS AND SECURITY DEPOSIT
• The User shall pay to the Owner a security deposit to the value of 10% of the total Rental Costs (“Security Deposit”) upon signature of this Agreement and prior to release of the Equipment. No interest shall accrue on the Security Deposit during the period of the Agreement. This clause shall not merge upon completion.
• Upon collection of the Equipment, a joint inspection of the Equipment shall be conducted by the parties and a list of defects found during said inspection shall be compiled and initialled by both parties.
• The User, by accepting the Equipment, acknowledges having inspected the Equipment and, save for the defects noted during the inspection, having received the Equipment in a good and roadworthy condition, free of any defects or damage.
• Upon return of the Equipment, the parties shall conduct another joint inspection of the Equipment and note any defects or damages to the Equipment in comparison to the defect list compiled at the time of collection of the Equipment.
• Once the Owner is satisfied that the Equipment has been returned in good order along with all keys, accessories and instruction books, and once all obligations due by the User to the Owner in terms of this Agreement have been discharged, including but not limited to compensation for incidental Rental Costs, damage repair costs, refuelling and cleaning costs, the Owner shall refund to the User, free of interest, so much of the Security Deposit that as has not been applied towards settlement of any amounts owing by the User to the Owner in terms of this Agreement. This clause shall not merge upon completion.

5. OWNERSHIP AND RISK
• Ownership of the Equipment shall at all times remain vested in the Owner and the rights of the User to use the Equipment are as lessee only. It is recorded that this Agreement is a rental agreement only and as such the User will not assume ownership of the Equipment upon the expiry of this Agreement, nor is the Owner under any obligation to offer the Equipment for sale to the User. The User will not be entitled to offer, sell, assign, sub-let, mortgage, pledge or otherwise deal with the Equipment in any way which is inconsistent with the rights of the Owner as owner of the Equipment.
• The risk in the Equipment shall pass to the User at delivery of the Equipment to, alternatively collection of the Equipment by, the User and shall remain with the User until such time as the Equipment is returned to the Owner.

6. CONDITIONS OF USE
• This Agreement is personal to the User and the User shall not, without the express written consent of the Owner, allow any other person or entity to use or have possession of the Equipment at any time during the Rental Period, sub-hire or cross hire the Equipment to a third party.
• The User shall not not in any way whatsoever deal with, dispose of, part with, abandon, sell, cede, assign, transfer or pledge the Equipment, allow it to become subject to any lien of whatsoever nature or create, purport to create, or permit to be created any “security interests” (as defined in the PPSA) in the Equipment.
• The Purchaser shall use the Equipment as per the Owner’s instructions and in accordance with the manufacturer’s instructions and manuals, which manuals have been provided to the User upon collection of the Equipment and which the User warrants it has read.
• The User must not, without the Owner’s written permission, move the Equipment to another site or storage location other than that specified on the Rental Schedule.
• The Equipment is rented to the User with a full tank of fuel and all Equipment is to be returned to the Owner at the end of the Rental Period with a full tank of fuel, failing which the User shall be liable for the cost of refueling the Equipment. Any such refueling cost incurred not charged to an account shall be payable by the User to the Owner immediately upon demand.
• All fuel costs incurred by the use of the Equipment during the Rental Period shall be solely for the User’s account.
• The Equipment is rented to the User in a clean condition and is to be returned to the Owner at the end of the Rental Period free from waste and in a clean condition acceptable to the Owner in the Owner’s sole discretion, failing which the User shall be liable for the cost of cleaning the Equipment. Any such cleaning cost incurred not charged to an account shall be payable by the User to the Owner immediately upon demand.
• The User shall at all times operate the Equipment safely and not in a reckless or negligent manner, nor shall it use the Equipment, or allow it to be used, for any purpose for which it is not designed or intended to be used, or use the Equipment in circumstances that there may be an increased risk of danger, or a loss, or damage, or undue wear and tear, including conveying any materials or articles in the Equipment which may cause damage to its upholstery or any other part of the Equipment.
• The User shall ensure that the Equipment is used strictly in accordance with all laws, including but not limited to environmental and traffic laws.
• The User shall not cause or allow the Equipment to be neglected, abused, damaged, destroyed, modified either in terms of its body or its components, tamper with, remove or replace any of the Equipment’s components, alter, remove, deface or erase any identifying mark, plate, number, notices or safety information on the Equipment. The User shall at all times exercise due care, to the extent that the User will take all reasonable precautions to safeguard the Equipment against any loss, harm or damage, including but not limited to safely and securely storing the Equipment, and will allow the Owner and/or its servants and/or its agents all reasonable rights of access to the Equipment.
• The User shall ensure that persons operating the Equipment are competent, suitably trained, or instructed in its safe and proper use, and, where necessary hold a current certificate of competency and/or are licensed to use the Equipment. The User shall further ensure that all persons operating the Equipment wear suitable clothing and protective equipment and are not operating the Equipment whilst under the influence of alcohol, strong medication or any drugs.
• The User shall display, maintain and draw attention to safety signs and instructions (as required by law), and ensure that instructions are observed and signs are not removed or defaced.
• The User shall, at its own cost, conduct a site hazard assessment prior to using the Equipment at a site, including checking for underground infrastructure prior to commencing digging works.
• The User shall conduct daily pre-start checks and, in the event of a Rental Period in excess of 13 (thirteen) days, at its own cost, maintain, and if necessary replace, all filters, fuel, fuel additives, fluid and lubrication requirements for the Equipment on a daily basis, and in accordance with the manufacturer’s instructions, and the adhesive signage on the Equipment and use only fuel, oil, coolant, lubricants and filters specified by the Owner or the manufacturer.

7. EQUIPMENT BREAKDOWN
• If the Equipment breaks down or becomes unsafe to use during the Rental Period, the User shall:
- Immediately stop using the Equipment and notify the Owner;
- Take all steps necessary to prevent injury occurring to persons or property as a result of the condition of the Equipment;
- Take all steps necessary to prevent any further damage to the Equipment; and
- Not repair or attempt to repair the Equipment without the Owner’s written consent.
• If the breakdown was caused by the User due to the fault, negligence, recklessness or misuse by the User, or due to any breach by the User of this Agreement, be responsible for all costs incurred by the Owner in repairing the Equipment and continue to pay the Owner the agreed Rental Cost until such time that the Equipment is repaired or replaced. In addition, the User shall bear all costs, penalties and damages suffered by the Owner due to the Equipment not being available for subsequent scheduled rentals.
• If the Equipment breaks down or becomes unsafe to use through no fault, negligence, recklessness or misuse by the User, the Owner shall take all reasonable steps to repair the Equipment as soon as reasonably possible after being notified by the User and will not charge Rental Costs for that portion of the Rental Period for which the Equipment was broken down or unsafe.

8. LOST, STOLEN OR DAMAGED EQUIPMENT
• If the Equipment is lost, stolen or damaged in any way, or by anyone (including third parties) during the Rental Period, the User shall be liable to the Owner for:
- Any costs incurred by the Owner in recovering, repairing or replacing the Equipment;
- Any other costs whatsoever incurred or losses suffered by the Owner as a result of the loss, theft or damage to the Equipment;
- The Rental Cost for the balance of the Hire Period; and
- If the Equipment has not been repaired or replaced by the end date of the Rental Period, the User will continue to pay the Owner the daily Rental Cost as if the Equipment were rented to the User, until such time that the Equipment is repaired or replaced.
• This clause shall not merge upon completion.

9. INDEMNITY
• The User agrees that the rental of the Equipment and the use thereof during the Rental Period shall be at the User’s sole risk and responsibility, including but not limited to establishing the suitability of the Equipment rented for the intended purpose and conducting the site hazard assessment, and the Owner will not be liable for any damage, loss, or injury that the User may incur, or that may arise from any cause whatsoever except the negligence of the Owner, including any fault or other defect in the Equipment, and the User wholly indemnifies the Owner in this respect.
• To the maximum extent permitted by law, the Owner’s maximum aggregate liability for all claims under or relating to this Agreement or its subject matter, whether in contract, tort (including without limitation negligence), in equity, under statute, or under an indemnity, is limited to an amount equal to the Rental Cost paid by the User to the Owner under this Agreement.
• The Owner shall not be under any liability whatsoever to the User for consequential, indirect or special loss or damage (including loss of actual or anticipated profits or revenue, economic loss of any kind or any loss suffered as a result of any claims by third parties) in contract, tort (including negligence) under statute or otherwise from or in relation to the Equipment, the rental, use or breakdown thereof, or this Agreement, whether or not such loss or damage was foreseeable.
• Except to the extent caused by the negligence of the Owner, the User is liable for, and indemnifies the Owner, and its directors and employees against, all liability, damage, loss (including without limitation loss or damage to any property, or death or injury to any person), costs and expenses (including legal fees and on the higher of a full indemnity basis or a solicitor-client basis, and whether incurred or awarded against the Owner) arising from, or incurred in connection with, the User’s rental or use of the Equipment, or its breach of this Agreement. Each indemnity in this Agreement is a continuing obligation, separate and independent from the other obligations of the parties and survives termination, completion and expiration of this Agreement. It is not necessary for a party to incur expense or make any payment before enforcing a right of indemnity conferred by this Agreement. The User must pay on demand to the Owner any amount it must pay under an indemnity in this Agreement.
• Where the Owner gives advice, information, assistance and/or service to the User regarding the suitability or purpose of the Equipment, or in connection with the design, delivery times, dimensions, installation or use of the Equipment, then it is given as an estimated guide only, the User shall not be entitled to rely on such estimated guide and the Owner shall not be liable in any way for any damages, losses or costs however arising resulting from the User relying on any such estimated guide.
• This clause shall not merge upon completion.

10. BREACH
• In the event of a breach of this Agreement, the aggrieved party may call in writing on the other to remedy the breach within a period of fourteen (14) calendar days.
• If the breach remains unremedied after the aforesaid notice period has expired, the aggrieved party will be entitled, in addition to any rights they may have in terms of this Agreement or in law, but not compelled, to:
• claim immediate specific performance of all of the defaulting party’s obligations under this Agreement as well as immediate payment of all amounts which would have become due and payable in terms of this Agreement, notwithstanding that such amounts are not then due for payment. This clause shall not merge upon completion of this Agreement; or
• terminate the Agreement; and/or
• in either instance above, to claim damages from the defaulting party.
• In the event of either party being necessitated to institute legal proceedings against the other to enforce any right which it might have in terms of this Agreement or in law, the successful party shall be entitled to recover from the other all and any costs expended by the successful party, including legal costs on a solicitor‑client or full indemnity basis, whichever is the higher.

11. WARRANTIES BY THE OWNER
Save for those warranties and representations expressly given or made in this Agreement, no warranties or representations are given or made in respect of the Equipment, including but not limited to condition or suitability for any purpose, or any other matter relating thereto whatsoever, whether express, tacit or implied in respect of any document, information or representation made or furnished by the Owner, its agent or any other person. The User agrees that it shall not be entitled to make any objection or claim against the Owner in respect of any matter or thing relative to this clause whatsoever for compensation, except to the extent that such claim arises from a breach of this Agreement by the Owner or any damage that arises directly or indirectly due to the negligent or wilful act or omission of the Owner.

12. GENERAL WARRANTIES
• Each of the Parties hereby warrants to and in favour of the others that –
• it has the legal capacity and has taken all necessary corporate action required to empower and authorise it to enter into this Agreement;
• this Agreement constitutes an agreement valid and binding on it and enforceable against it in accordance with its terms; and
• the execution of this Agreement and the performance of its obligations hereunder does not and shall not –
• contravene any law or regulation to which that Party is subject;
contravene any provision of that Party's constitutional documents; or
• conflict with, or constitute a breach of, any of the provisions of any other agreement, obligation, restriction or undertaking which is binding on it.
• Each of the representations and warranties given by the Parties in terms of this clause shall –
• be a separate warranty and will in no way be limited or restricted by inference from the terms of any other warranty or by any other words in this Agreement;
• continue and remain in force notwithstanding the completion of any or all of the transactions contemplated in this Agreement; and
• be deemed to be material and to be a material representation inducing the other Parties to enter into this Agreement.

13. CERTIFICATE OF INDEBTEDNESS
A certificate signed by any manager or any director of the Owner reflecting any amount owing by the User to the Owner in terms hereof, and of the fact that such amount is due, owing and unpaid, shall be prima facie proof of the contents therein stated for the purpose of any action (whether by way of provisional sentence or otherwise) or alternative dispute resolution procedure, proof of debt on insolvency or for any purpose whatsoever where the amount of such claim is required to be established and it shall rest with the User to prove that such amount is not owing.

14. CESSION, ASSIGNMENT, MORTGAGE AND DISPOSAL
• The User may not assign, cede, mortgage, charge or otherwise dispose of all or any of its rights under this Agreement without the prior written approval of the Owner, which approval may not be unreasonably withheld or delayed.
• The Owner shall, at any time, in its sole discretion, be entitled to cede or assign all or any of its rights in terms of this Agreement to any third party without prior notice to the User.

15. WAIVER
• Failure of either party to require strict performance of any provision of this Agreement, or such party’s forbearance to exercise any right, shall not be deemed a waiver by or prejudice of such party of its right to require strict performance or exercise such right in the future.
• No latitude, indulgence, consent or forbearance or any other similar act by either party in enforcing any provisions of this Agreement shall constitute a variation or novation of this Agreement or a waiver of rights or estoppel in terms of this Agreement.

16. SEVERABILITY
In the event that any of the terms of this Agreement are found to be invalid, unlawful or unenforceable, such terms will be severable from the remaining terms, which will continue to be valid and enforceable.

17. ENTIRE AGREEMENT
Save for any Credit Application Incorporating Credit Agreement only, this Agreement embodies the entire agreement between the parties and no alteration or variation of any of the terms or conditions of this Agreement shall be of any force or effect unless it is recorded in writing and signed by both parties. Save for any Credit Application Incorporating Credit Agreement only, this Agreement shall supersede any former agreements between the parties, whether it be oral, written or implied.

18. CONTINUING EFFECTIVENESS OF CERTAIN PROVISIONS
The expiration or termination of this Agreement shall not affect such of the provisions of this Agreement as expressly provide that they will operate after any such expiration or termination or which of necessity must continue to have effect after such expiration or termination, notwithstanding that the clauses themselves do not expressly provide for continuation.

19. SIGNATURE, GOVERNING LAW AND JURISDICTION
• The individual signing this Agreement on behalf of a company personally warrants that he/she has the necessary authority to contract on behalf of the company in this regard and to bind the company to this Agreement.
• For the purposes of this clause, Electronic Signature means a visual representation of a person’s handwritten signature which is placed on this Agreement using an electronic signing platform agreed to by the parties and Electronically Signed has a corresponding meaning.
• This Agreement may be signed by or on behalf of a party using an Electronic Signature. • Where an Electronic Signature has been used by a party to sign this Agreement, that party warrants that their Electronic Signature was used to:
• Identify and authenticate the person signing; • Where the party is an individual, indicate that the person intended to be bound by the terms of this Agreement; and
• Where the party is a company, indicate that the person or persons intended to bind the company to the terms of this Agreement.
• Each party warrants that the placing of their Electronic Signature in accordance with this Agreement constitutes the delivery of this Agreement by the individual or the company (as the case may be).
• This Agreement may be signed in any number of counterparts and all such counterparts taken together shall be deemed to constitute one and the same document. Any counterpart may be Electronically Signed.
• Each party consents to the exchange of counterparts of this Agreement by delivery by e-mail or such other electronic means as may be agreed in writing.
• This Agreement shall be governed by the laws of New South Wales and the parties irrevocably submit to the non-exclusive jurisdiction of the Courts of that place.

Rental Schedule

Annexure “A” – Equipment and Rental Costs per item of Equipment per Day