SHACK INDUSTRIES/DISCOUNT FORKLIFTS RENTAL CONTRACT TERMS AND CONDITIONS WHEREBY IT IS AGREED as follows;
1: The Owner shall let and the Hirer shall take on hire all and singular of the machinery described in the Schedule hereunder (hereafter referred to as "the said machinery") for the term specified in the Schedule commencing on the date of delivery of the goods by the Owner to the Hirer.
The Owner shall deliver the said machinery to the Hirer at the Hirer's expense.
3 RENT PAYMENTS:
The Hirer shall throughout the term of this agreement pay to the Owner at the address for the time being and without previous demand by way of rent for the hire of the machinery the sum set out in the Schedule hereto plus government taxes, stamp duty, financial institutions duty and any other charges which may be payable on this agreement which the Owner is or may become liable to pay by reason of the transaction or the performance thereof including but not limited to the payment of money to the Owner during its term. The rental is based on the machinery being in use for no more than 8 hours per day or 40 hours per week.
4 RENTAL INCREASE:
Upon the expiration of one (1) year from the commencement date of this Agreement, and upon the expiration of each successive year thereafter, the annual rental payable by the Hirer at the option of the Owner shall be reviewed. The rental payable after the first twelve (12) months of the term of this Agreement and for each successive year thereafter shall be the previous twelve months period plus such increase in the cost of living as indicated by the All Groups Consumer Price Index for the City of Melbourne most recently issued by the Australian Statistician (or its successor body), current to the commencement date of the said preceding twelve month period of the Agreement.
5 BAILEE ONLY:
The Hirer during the period of this Agreement shall not acquire any right or interest in the machinery other than as bailee.
6: The Hirer shall not during the term of this agreement sell, offer for sale, assign , mortgage, pledge, underlet, lend or otherwise deal with the said machinery or any part or parts thereof or with any interest therein or in this agreement but shall keep the said machinery in his possession and not remove same or any part or parts thereof from the place where such machinery is for the time being let without the previous consent in writing of the owner. The Hirer will not allow any lien to be created upon the said machinery whether for repairs or otherwise and will duly and punctually pay all rents, taxes, charges and impositions payable in respect of the premises upon which the said machinery shall for the time being be situate and produce all receipts for such payments to the Owner on demand. The Hirer will protect the said machinery from distress, execution or seizure and indemnify the Owner against all losses, costs, charges, damages and expenses incurred by him by reason or in respect thereof.
7.1: The Hirer acknowledges and agrees that the Owner charge an insurance levy on each hire to protect against loss and theft
7.2: The Hirer further acknowledges and agrees that upon payment for the insurance levy as per 7.1, the Owner reserves the right to claim from the Hirer an excess of ten percent (10%) of the replacement cost of the machinery in the event of the loss of the machinery due to fire or theft. The Hirer shall be able to pay all hire charges at the invoice date until the excess has been received in full.
7.3: The Hirer acknowledges that all damage whether accidental, willful, or operator abuse is not covered by insurance. The following damages are specifically excluded from the insurance cover; a) damage cause d b y misuse or abuse of mac hinery b) loss or damage to the machinery o ccurri ng of any reason c) misappropriation or wrongful conversion d) breach of any condition of this agreement e) loss or damage caused by the operation of the machienry in violation of any statute (Commonwealth or State) or any regulation or by-law hereunder f) loss or damage to accessories including LP gas bottles, fork slippers, lights, tyres or tubes.
8.1: The Hirer shall use the machinery in a skilful and proper manner and shall at his own expense keep the said machinery in good and substantial repair and condition (reasonable, wear and tear excepted) and the responsibility of the Hirer extends to tyres and lubes when neglect or accident causes damage in excess of normal wear and tear. The Hirer shall keep the machinery supplied at the normal levels with lubricating oils, coolant, fluids, air and distilled water in batteries.
8.2: The Owner reserves the right to enter the premises where the machinery is situated during the hours of 7:30am to 5:00pm Monday to Friday and carry out preventative maintenance during each 250 hours of operation of the machinery at which time the machinery may be made available to the Owner for this purpose for a period of not less than 2 hours. If the Hirer requires maintenance to be effected at any time other than the time at which the owner believes the maintenance to be necessary a special charge may be levied for the convenience.
8.3: In the event that the machinery is lost, destroyed, seized, confiscated or in the opinion of the Owner damaged beyond repair the Owner shall have the right to terminate this agreement.
8.4: The Owner reserves the right to substitute machinery similar to the machinery the subject of this agreement at any time and for any reason and thereafter the substitute machinery shall be subject to the same terms and conditions of this agreement but the Owner shall not be under any obligation to substitute such machinery.
8.5: The Hirer shall notify the Owner in writing immediately of any change of address where the machinery is to be situated or kept.
8.6: The Hirer shall keep the machinery during periods of non-use in a secure position and protected from weather conditions.
In the event of any damage being caused to the machinery as a result of accident and/or negligence whilst the machinery is in the possession of the Hirer, the Hirer shall furnish a written report to the Owner giving full details of the accident and damage caused to the machinery within 7 days of the occurrence of the damage. Upon receipt of a written report the Owner shall arrange for the machinery to be repaired and the Hirer shall pay the costs of and incidental to the repairs. The Owner retains the sole right to repair damaged machinery.
10 CHARGE FOR EXTRA USE:
The said machinery may be used by the Hirer for hours in excess of the normal 8 hour day or 40 hour week in which the hire rate is based provided that the Hirer shall pay such additional rent calculated by dividing the then current weekly rental rate by forty, multiplied by the number of excess hours of use then multiplied by 0.5.
11 USE OF EQUIPMENT:
The Hirer shall not use the machinery on a public holiday (unless the machinery is registered for such purpose) and where the owner supplies an operator with the machinery such operator alone shall be permitted to use the machinery.
If the Hirer shall make default in punctual payment of the monthly sums due hereunder or if an order shall be made for the sequestration of his Estate or if he shall enter into any composition or arrangement with his creditors or if the Hirer being a limited company shall enter into compulsory or voluntary liquidation (not being a voluntary liquidation only for the purposes of amalgamation or reconstruction) or shall fail to observe and perform the terms and conditions of this agreement upon his part to be observed or performed or if the Hirer shall do or cause to be done or permit or suffer any act or thing whereby the Owners rights in the said machinery may be prejudiced or put into jeopardy this agreement shall forthwith determine without any notice or other act on the part of the Owner and now withstanding that the Owner may have waived done previous default or matter of the same or like nature.
13: In the event that the Hirer seeks to terminate this Agreement prior to the expiry date hereof the Hirer shall pay all rental payments and other expenses due to the Owner for the full term of the Agreement notwithstanding that the Owner has taken possession of the said machinery.
14 RETAKE POSSESSION:
Upon termination of this Agreement by the Owner it shall thereupon be lawful for the owner to retake possession of the said machinery and for that purpose to enter into or upon any premises where the same may be. The termination of this Agreement shall not affect the right of the Owner to recover from the Hirer any monies due to the Owner under this Agreement or damages for breach thereof.
15 INTEREST ON LATE PAYMENTS:
In the event that the rent for the said machinery shall not be paid at the times and in the manner aforesaid the Hirer shall pay to the owner interest on the arrears at the rate of 20% per annum from the date on which the last payment was due until such arrears are paid and the Hirer shall also pay all costs and expenses incurred by the Owner in obtaining payment of such arrears or of the sums necessary to obtain possession of the machinery and whether or not any action or suit shall have been instituted for recovery thereof. Any action which the Owner shall take to recover arrears of rental shall be in addition to and without prejudice to the Owner's right to recover damages for breach of this payment.
The Hirer shall indemnify and keep indemnified the Owner at all times for all losses, liabilities, damages, costs and expenses (including all legal expenses), suffered or incurred by the owner resulting from or incidential to any claims made or action taken by third parties against the Owner or any legal process being levied against the machinery arising out of the use operation repair maintenance or keeping of the machinery during the terms of this agreement.
17.1 To the extent that the same is not prohibited by the provision of any applicable Act the Owner does not agree to any condition or give any warranty nor make any representations whatsoever as to the condition or quality of the goods or as to their suitability or fitness for their ordinary or any special use and the description of the goods in this rental agreement or in the schedule shall not import any such condition or warranty on the part of the owner.
17.2 It is the responsibility of the Hirer to satisfy himself as to the condition quality suitability and fitness of the goods for his purpose before signing this agreement and to make arrangements for servicing and maintenance of the goods. As between himself and the Owner the Hirer by entering this agreement accepts the goods as they are with faults and defects (if any).
18 LIMITATION OF LIABILITY:
The Owner shall not be liable for any loss or damage of any kind whatsoever caused to the Hirer or to the property and/or goods of the Hirer whether such loss or damage was caused by acts, default or negligence on the part of the Owner or its servants or agents. All goods are handed, lifted or carried entirely at the risk of the Hirer of the goods. The Owner shall not be responsible for any delays inconvenience or loss of any kind whatsoever incurred by the Hirer due to any accident breakdown or defect in the rental equipment or any part thereof or from any cause whatsoever.
Any time or other indulgence granted by the Owner shall not affect the strict rights of the Owner under this agreement.
20 WET HIRE:
In the event of 'wet' hire of the machinery, the operator of the machinery remains an employee of the Owner and operates the machinery in accordance with the Hirer's instructions. As such the Owner shall not be liable for any actions of the operator in following the Hirer's instructions.
21 DEFINITIONS & INTERPRETATIONS:
a) Headings are for convenience only and shall not affect the construction of this agreement
b) Words and expressions importing singular shall include plural, masculine gender shall include feminine gender and vice versa.
c) Natural persons shall include companies and corporations.
d) References to 'month' means calendar month.