eps australia pty ltd

1. Definitions

1.1 This agreement includes these terms and conditions, the quote forming part of this agreement (Quote) and, if signed by the Hirer and accepted by the Owner, the damage waiver non-acceptance form attached to this agreement (Damage Waiver Non-acceptance Form).

1.2 In this agreement:
(i) the Owner means eps australia pty ltd ACN 131 476 661 of 116-118 Maffra Street, Coolaroo, Victoria 3048;
(ii) the Equipment means the equipment listed in the Quote;
(iii) the Hirer means the client named in the Quote;
(iv) the Hire Period means the hire period stated in the Quote from the date out and time out named in the Quote until the date in and time in named in the Quote; and
(v) the words Price, Deposit, Collection Address, Return Address and Delivery Address have the meaning set out in the Quote to this agreement.

2. Hire of Equipment

2.1 The Owner agrees to hire the Equipment to the Hirer for the Hire Period in consideration of the Hirer complying with its obligations under this agreement, including but not limited to paying the hire Price and damage waiver plus GST in accordance with this agreement and any applicable deposit.

2.2 Subject to the terms of this agreement, the Hirer is entitled to use the Equipment on hire for the Hire Period. Any extension of the Hire Period must be agreed in writing between the Hirer and the Owner.

3. Payment of Price

3.1 The Hirer agrees to pay the Owner the Price and the Damage Waiver Fee for the hire of the Equipment during the Hire Period plus GST and any applicable stamp duties, tolls, fines, penalties, levies or freight and other charges relevant to this agreement and the hire of the Equipment.

3.2 All fees and charges under this agreement (including but not limited to the Price and the Damage Waiver Fee) must be paid to the Owner prior to the commencement of the Hire Period unless otherwise agreed in writing between the Hirer and the Owner. Account customers who do not pay their account on the terms agreed will be deemed to be in default.

3.3 If any of the Equipment is not returned by the Hirer to the Owner by the end of the Hire Period and in accordance with this agreement then, without prejudice to the Owner’s other rights under this agreement, the Hirer agrees to pay the Owner on demand a further fee equal to Price divided by the number of days during the Hire Period multiplied by the number of days from the day after the end of the Hire Period until the day that the Equipment is returned to the Owner in a condition and manner consistent with the Hirer’s obligations under this agreement.

3.4 If the Quote states that the Owner will deliver the Equipment to the Hirer’s Delivery Address, then subject to the Hirer paying the Owner the delivery or freight charges included in the Price, the Owner will use all reasonable endeavours to deliver the Equipment by the commencement of the Hire Period but will not be liable to the Hirer for a late delivery, non-delivery or any associated loss or damage due to a late or non-delivery.

3.5 Subject to clause 3.4, the Hirer is responsible for collecting the Equipment from the Collection Address at the commencement of the Hire Period, and for returning the Equipment to the Return Address by the end of the Hire Period in a condition consistent with the Hirer’s obligations under this agreement, unless otherwise agreed in writing between the Hirer and the Owner.

3.6 The Deposit may be charged by the Owner and must be paid by the Hirer to the Owner upon the Hirer’s acceptance of the Quote. If the Hirer purports to cancel or rescind the this agreement or fails to take delivery of the Equipment at the commencement of the Hire Period, then the Deposit will be forfeited (as liquidated damages) to the Owner if the Owner cannot or does not hire that Equipment to a third party during the Hire Period for an amount equal to or greater than the Price. The Owner’s rights under this clause are in addition to and not in substitution of the Owner’s other rights under this agreement or at law.

3.7 The Owner is entitled to charge the Hirer an additional fee of 2.5% for accepting payment by credit card.

3.8 The Owner reserves the right at any time without notice to revise the hire charges.

4. Damage Waiver Fee for damage to the Equipment

4.1 Subject to sub-clauses 4.2, 4.3, 4.4 and 4.5, upon payment by the Hirer of the 5% Damage Waiver Fee, the Owner shall be responsible for the cost of excessive cleaning, repairs or replacement of the Equipment due to damage occurring during the Hire Period up to 8% of the value of the hire items.

4.2 The liability of the Owner pursuant to clause 4.1 of this agreement is capped at a maximum repair/replacement value of $50,000 for all Equipment hired by the Hirer under this agreement. The Hirer is solely responsible for the cost of any repairs to or replacement of the Equipment in excess of $50,000.

4.3 This clause 4 in no way entitles the Hirer to, or implies the availability of, compensation from the Owner for any liability incurred by the Hirer in relation to the use of the hired Equipment.

4.4 This clause 4 will not continue to operate after the expiration of the Hire Period unless an extension of the Hire Period is granted by the Owner in writing and an additional agreed fee is paid.

4.5 This clause 4 will not apply to any costs or loss or damage to the Equipment, which relates to or arises from:
(i) breach of any statutory laws or regulations in connection with the use of the Equipment by the Hirer or its officers, employees, agents, contractors or invitees;
(ii) misuse, abuse, wilful and/or malicious acts, negligent and/or reckless use and/or overloading of the Equipment;
(iii) theft, loss or damage by whatever cause to tools and/or accessories supplied with the Equipment;
(iv) disregard for or non-compliance with the instructions given to the Hirer by the Owner in respect of the proper use of the Equipment or non-compliance with the manufacturer’s instructions if supplied with the Equipment on or before the commencement of Hire Period;
(v) unexplained disappearances of the Equipment;
(vi) theft of the Equipment in circumstances where proper security measures are not taken by the Hirer to secure the Equipment whilst it is left unattended;
(vii) loading or off loading Equipment from maritime vessels, transportation of Equipment on maritime vessels or the use of Equipment on any wharf or bridge or over any body of water.

5. Damage Waiver Non-acceptance Form

5.1 Notwithstanding clause 4, the Damage Waiver Fee is not payable by the Hirer if, prior to the Equipment being delivered or collected or prior to the commencement of the Hire Period (whichever is the earlier), the Hirer provides the Owner with both:
(i) a signed Damage Waiver Non-acceptance Form; and
(ii) written evidence that is satisfactory to the Owner (in its sole discretion) that the Hirer has a current insurance policy with a reputable insurer pursuant to which the Equipment is insured against all loss and damage for its full replacement value.

5.2 If a Damage Waiver Fee is not payable by the Hirer pursuant to clause 5.1, then clauses 4 and 11 of this agreement do not apply and the Hirer is responsible for all loss and damage in relation to the Equipment arising from any cause, including but not limited to loss and damage arising from the matters referred to in sub-clauses 4.5(i) to 4.5(vii).

6. Use, operation and maintenance

6.1 If the Price includes charges for labour in respect of all or part of the Equipment, then the Owner is responsible for assembling and installing that Equipment if the Hirer provides the Owner with sufficient access to the relevant site and all relevant information about that site and the purpose for which the Equipment will be used.

6.2 The Hirer agrees that the transport, assembly, installation, operation and use of the Equipment carries with it dangers and risks of injury and the Hirer agrees to accept all dangers and risks.

6.3 The Equipment shall not be used by anyone other than the Hirer without the express permission of the Owner.

6.4 Subject to clause 6.1, the Hirer will ensure that all persons transporting, assembling, installing, operating or using the Equipment are instructed in its safe and proper use and where required hold a valid Certificate of Competency or are fully licensed to use it.

6.5 Subject to clause 6.1, the Hirer agrees to assemble, install, operate, maintain, store and transport the Equipment in a proper, safe and secure manner and where required strictly in accordance with any instructions provided by the Owner and with due care and diligence.

6.6 The Hirer agrees that the Equipment 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 Equipment in regard to its operation, maintenance and storage.

6.7 The Hirer agrees to comply with all occupational health and safety laws and regulations relating to the transport, assembly, installation, operation and use of the Equipment and associated operations.

6.8 The Hirer shall ensure the Equipment is returned to the Owner clean of all foreign matter or agrees to pay a reasonable cleaning fee being charged by the Owner.

6.9 The reasonable costs of fuel or other consumables provided by the Owner and used by the Hirer are to be paid to the Owner at the end of the Hire Period.

7. Hirer’s warranties

7.1 The Hirer warrants that:
(i) the Equipment will be transported, assembled, installed, operated and used in accordance with this agreement and the conditions outlined in the Quote;
(ii) the particulars in the Quote are correct in every respect and are not misleading in any way including, without limitation, by omission;
(iii) the Equipment will not be used for any illegal purpose;
(iv) the Hirer will not, without prior written consent of the Owner, tamper with, repair or modify the Equipment in any way, or permit another person to do so;
(v) the Hirer has not relied on the Owner’s skill and judgement or on any representations made by or on behalf of the Owner in selecting the Equipment for hire;
(vi) the Hirer agrees that the Equipment complies with its description, is in working condition and is fit for the Hirer’s purpose;
(vii) the Hirer agrees that the Equipment has been received by the Hirer clean and in good working order;
(viii) the Hirer will not in any way part with possession of the Equipment, nor assign this hire contract, nor remove the Equipment from the State of Victoria without the prior approval of the Owner;
(ix) any damage to, or loss of, any Equipment will be reported to the Owner immediately upon such damage or loss occurring;
(x) the Customer will use the Equipment entirely at the Customer’s risk.
(xi) the hirer understands and accepts that any requests outside of the scope of the agreed quote such as additional labour hours, labour requests outside of normal daily hours, weekend or night work etc. will be subject to additional charges.
(xii) any extension of the agreed hire period is solely at the discretion of the Owner and if available, may be subject to additional hire fees.

8. Indemnity

8.1 Subject to clause 8.3, to the full extent permitted by law the Hirer releases, discharges and indemnifies the Owner and its officers, employees, agents and contractors from all claims, demands, actions, suits, damages, costs, losses and expenses of any nature whatsoever which may be made or taken against the Owner, its officers, employees, agents or contractors or which they may incur by reason of or relating to:
(i) any matter associated with any occurrence arising from the hire of the Equipment;
(ii) subject to clause 6.1, the transport, assembly, installation, operation and use of the Equipment;
(iii) subject to clause 4 (if applicable), any loss or damage to the Equipment;
(iv) any breach of the Hirer’s warranties or obligations under this agreement;
(v) the use or misuse of all or any part of Equipment during the Hire Period;
(vi) any accident or damage to all or any part of the Equipment;
(vii) any loss all or any part of the Equipment;
(viii) the exercise by the Owner of its rights under this agreement, including but not limited to its right to repossess the Equipment in accordance with clause 15.

8.2 Subject to clause 8.3, the Hirer agrees that to the full extent permitted by law, the Owner gives no warranties in respect of the Equipment.

8.3 If any liability of the Owner cannot be lawfully excluded, then the Owner’s liability is limited, at the Owner’s option to replacing or re-supplying the relevant Equipment, repairing the relevant Equipment, paying the Hirer the cost of replacing the relevant Equipment or of acquiring equivalent Equipment, or paying the cost of having the relevant Equipment repaired.

9. Loss, damage or breakdown of Equipment

9.1 Subject only to the obligations of the Owner following payment of the Damage Waiver Fee by the Hirer in accordance with clause 4 the Hirer will be responsible for any loss or damage to the Equipment irrespective of how the loss or damage occurred, except for fair wear and tear, during the Hire Period.

9.2 The Hirer is liable to pay the Owner for any Equipment not returned to the Owner at the end of the Hire Period on a new-for-old replacement value basis.

9.3 If there is a breakdown or failure of the Equipment the Hirer shall notify the Owner immediately for the appropriate action to be taken.

10. Termination

10.1 Without prejudice to any other remedies the Owner may have against the Hirer and notwithstanding the Hire Period, the Owner may terminate this hire agreement as follows:
(i) Upon giving the Hirer two days written notice of termination at any time during the Hire Period;
(ii) Without notice if the Hirer:
a. is insolvent, is or states that it is unable to pay its debts as they fall due, or ceases or threatens to cease carrying on business;
b. has a receiver, receiver and manager, trustee or other controller as defined in section 9 of the Corporations Act 2001 (Cth) or similar official appointed over any of its assets or undertaking;
c. resolves or takes steps to appoint an administrator or that enters into or resolves to enter into any arrangement, composition or compromise with or assignment for the benefit of its creditors or any class of them; or
d. is the subject of an application or order for the winding up or dissolution of the Hirer;
e. becomes bankrupt or enters into any arrangement or composition with his or her creditors or proposes to do so; or
f. commits a breach of any part of this agreement.

11. Insurance

The Owner will maintain current insurance policies in respect of the Equipment to its full insurable value. This insurance does not cover the Hirer and will not relieve the Hirer of any liability under this agreement unless the Hirer pays the Damage Waiver Fee which provides the Hirer with coverage to the extent specified in clause 4.

12. Liability

The Hirer will assume all risks and liabilities for, and in respect of, the Equipment and for all injuries to or deaths of persons and any damage to property howsoever arising from the Hirer’s possession, use, maintenance, repair, storage or transport of the Equipment.

13. Disclaimer

To the extent permitted by law the Owner disclaims all liability for and does not give any warranties to the Hirer as to the condition of the Equipment.

14. Title to Equipment

14.1 The Hirer acknowledges that the Owner retains title to the Equipment and that the Hirer has rights to use the Equipment as a mere bailee only. The Hirer agrees that the Hirer has no rights to pledge the Owner’s credit in connection with the Equipment. The parties agree that the Hirer is not an agent of the Owner.

14.2 The Hirer agrees not to agree, attempt, 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 Equipment and not to conceal or alter the Equipment or make any addition or alteration to, the Equipment.

15. Repossession and remedies on default

15.1 The Owner may retake possession of the Equipment if the Hirer breaches any provision of this agreement or does not pay their account in the time agreed or if the Owner terminates this agreement pursuant to clause 10, notwithstanding anything else in this agreement.

15.2 If repossession takes place, the Owner shall only charge the Price up to and including the time of repossession.

15.3 All costs incurred by the Owner incurred in repossessing due to a breach are to be paid by the Hirer, and the Owner is entitled to set-off any such costs against any amount refundable by the Owner to the Hirer pursuant to clause 15.2.

15.4 In the case of repossession due to a breach of this agreement the Hirer agrees to grant the Owner permission to enter any premises where the Equipment are situated and to disconnect, decommission and/or remove that Equipment.

15.5 In addition to the Owner’s right to retake possession the Owner is entitled (in its sole discretion) following any breach of any provision of this agreement by the Hirer, to terminate this agreement and/or sue for recovery of any damages or charges or loss suffered by the Owner, and/or to cancel any insurances effective in respect of the Equipment hired.

16. Completion of the hire of the Equipment

16.1 Subject to clauses 16.2 and 16.3, this agreement ends when the Hirer returns the Equipment to the Owner in the same condition as when it was hired (subject to fair wear and tear) by:
(i) returning the Equipment to the Return Address on or by the date and time outlined in the Quote or at the end of the Hire Period; or
(ii) if it is agreed by the parties in advance in writing or stated in the Quote that the Owner will collect the Equipment, by the Hirer notifying the Owner that the Equipment is available for collection by the Owner at the Delivery Address at the end of the Hire Period or on such other date and place as agreed by the parties in writing.

16.2 If the Owner has agreed in advance in writing to collect the Equipment at the end of the Hire Period, the Owner will arrange to collect the Equipment within a reasonable period after being notified by the Hirer that the Equipment is available for collection and the Owner will issue the Hirer with a pick-up number on request.

16.3 The Hirer agrees to maintain the responsibility for the Equipment whilst it is awaiting collection and to provide with Owner with reasonable access to the Equipment for the purpose of collecting the Equipment, if applicable.

17. Force Majeure

17.1 The Owner shall not be deemed to be in breach of this agreement or otherwise be liable to the Hirer by reason of any delay in performance or non-performance of any of its obligations under this agreement to the extent that such delay or non-performance is due to any cause beyond the Owner’s reasonable control including, but not limited to, acts of God, acts of public enemies, the acts, defaults or omissions of suppliers or sub-contractors, strike, lockout or other form of industrial action, war, blockade, revolution, civil commotion, lightning, storm, flood, fire, earthquake, explosion or any government interference, request, requirement or embargo (Force Majeure Event).

17.2 If the Owner is affected by a Force Majeure Event, it will immediately give the Hirer written notice of the nature and extent of the Force Majeure Event and the parties will enter into bona fide discussions with a view to alleviating its effects or agreeing upon such alternative arrangements as may be fair and reasonable.

17.3 If the Owner if affected by a Force Majeure Event and written notice of the Force Majeure Event has not been withdrawn by the commencement of the Hire Period, the Hirer shall be at liberty to terminate this agreement with immediate effect by written notice and the Owner shall not have any liability to the Hirer in connection with this agreement upon termination of this agreement.

18. Non-merger

18.1 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.

18.2 Clauses 4, 6, 7, 8, 12, 13, 14, 16.3, 17, 18, 22 and 24 survive the termination or expiry of this agreement.

19. Waiver

Time is of the essence of this agreement, except that no delay by the Owner in exercising any right or power will operate as a waiver of that right or power, nor will any single or partial exercise of any right or power preclude any other or future exercise of that right or power. A waiver is not valid or binding on the party exercising the waiver unless given in writing.

20. Notices

Any notice or other communication given or made under this agreement must be made in writing and addressed to the party’s address as set out in this agreement or such other address as may be notified by a party from time to time.

21. Severance

If any provision of this agreement is wholly or partly invalid, unenforceable, illegal, void or voidable, this agreement must be construed as if that provision or part of a provision had been severed from this agreement and the parties remain bound by all of the provisions and part provisions remaining after severance.

22. Governing law

This agreement is governed by the laws of the State of Victoria, Australia and each party submits to the exclusive jurisdiction of Courts of the State of Victoria.

23. Privacy policy

The Owner will comply with the National Privacy Principles in all dealings with Hirers. Information on our privacy policy is available on request.

24. Disputes

Both the Owner and the Hirer agree that, before litigation is pursued, any disputes arising from the hire and use of the Equipment (except in regard to payment of fees or charges) shall be negotiated and mediated in good faith with a view to settling that dispute for a period of 30 days of the date on which the dispute arose (or such longer period as agreed by the parties in writing) with the assistance of the Hire and Rental Industry Association Limited (Tel 02 9997 5166). Each party will bear their own costs in relation to this clause and 50% of the costs of any mediator engaged by the parties under this clause. Nothing in this clause prevents a party from seeking urgent interlocutory relief.