1. HIRE AGREEMENT BETWEEN YOU AND NEWCASTLE HIRE AND EXCAVATIONS
These Term of Hire, together with:
a) Any Guarantee, Indemnity and Charge you completed and submitted to us.
b) Each Hire Schedule provided to you by us whether signed or not: and
c) Any Special terms specific to the type of Equipment you have hired attached to your Hire Schedule
Make up the hire agreement between you and us. The provision or acceptance of a Hire Schedule shall not constitute part of this Hire Agreement. It is important that you read and understand all terms and conditions of the Hire Agreement before hiring from us. If you have any questions please ask us.
To assist us when we refer to the following terms in this document:
“Environmental Laws” means any statute, regulations or other laws made or issued by a regulatory body or government regulating or otherwise relating to the environment including without limitation the use or protection of the Environment
“Equipment” means any of Newcastle Hire Equipment, including but not limited to, portable building, vehicles, compaction and heavy earth moving, dewatering equipment, shoring and pumps and any associated or attached tools, accessories and parts available for hire.
“Expected Off Hire Date” means the date you advised us at the commencement of the hire that you would no longer require the equipment. The date is set out in the Hire Schedule.
“Hire Period” means for the Equipment specified in a Hire Schedule the period described in Clause 4.
“Hire Schedule” means the document by us to you which outlines important information, including but not limited to, the Equipment you have hired, the hire rates which apply to the Equipment, any other applicable charges, the Expected Off Hire Date and the address for delivery of the Equipment.
“License to Perform High Risk Work” means a validly issued license issued by the relevant workplace health and safety departments of each respective state government required for the operation of equipment which is considered to be high risk.
“Long Distance Location” is a location in excess of 50 km from Newcastle Hire and Excavations, 219 New England Highway,Thornton.
“Off Hire Date” has the meaning set out in clause 5.6.
“PPSA” means the PPS Act and any other legislation and regulations in respect of it and the following words in clause 9.2, 10 and 29 have the respective meanings given to them in the PPS Act: collateral, financing change statement, financing statement, interested person, purchase money security interests, register, registration, security agreement, security interest and verification statement.
“PPS Act” means the Personal Property Securities Act 2009 (Cth as amended)
“Regulatory Authority” means any public authority or government agency responsible for regulating the performance of electrical works.
“We/Us/Our” means Newcastle Hire and Excavations (ABN68609025738)
“You/Your” refers to the person, firm, organisation, partnership, corporation, trust or other entity hiring equipment from us, named in the Hire Schedule> The reference “You”, includes employees, agents and contractors.
3. OUR HIRE COMMITMENT TO YOU
We agree to hire you the equipment and will:
a) Provide the equipment to you in good working order, and:
b) Subject to clause 8.6 allow you to exclusively use the equipment during the hire period
4. THE HIRE PERIOD
4.1 The hire period commences when, either
a) You take possession of the equipment, or
b) If you request delivery and collection of the equipment, the time we deliver the equipment to the address you provide to us in the Hire Schedule whichever occurs first.
4.2 The hire period if for an indefinite term and ends when the equipment is back in our custody and possession
4.3 The Hire Period includes weekends and public holidays.
4.4 The Hire Period can only be changed if you request a variation and we agree to that variation in writing.
5. HOW WE CALCULATE YOUR HIRE CHARGES
5.1 You will pay Us for the hire of the equipment at the hire charge rates set out in the Hire Schedule.
5.2 The Hire Schedule will specify the type of rate which will apply to you and the method of calculation
5.3 Additional rental charges as set out in the Hire Schedule will apply if the equipment is used more than 8 hours per day
5.4 We reserve the right to charge for a minimum period of hire for certain types of equipment, but we will advise you of any minimum hire periods before you commence the hire.
5.5 Except in the circumstances set out in clause 5.6, you will be charged for the hire of equipment for the full Hire Period. For the avoidance of doubt, you will continue to incur hire and other charges after the expected Off Hire Date you have not returned the equipment to us by the expected Off Hire Date.
5.6 If you have requested that we deliver and collect the equipment and we have agreed, hire charges will commence from the time the equipment leaves our premises and continue until the date you notify us that you no longer require the equipment and that the equipment is available for collection (the “Off Hire Date”) On the Off Hire Date, you must notify us that the equipment is available for collection by no later than the time of day at which your hire commenced, otherwise we reserve the right to charge an extra day of hire charges. For the avoidance of doubt, the Expected Off Hire Date set out in the Hire Schedule is not considered to be your notice to us that the equipment is available for collection.
6. OTHER CHARGES
In addition to hire charges, you agree that you will be required to pay:
a) For any consumables, fuel or trade materials we supply to you
b) If you require us to deliver, collect or install the equipment, the cost of delivery, collection or installation, as detailed in the Hire Schedule
c) If you do not return the equipment clean and in good working condition, charges for the cleaning and repair of the equipment
d) Any stamp duty or GST arising out of this Hire Agreement
e) Any other applicable levies, fines, penalties and any other government charges arising out or your use of the equipment
f) An environmental charge in relation to any item of equipment, as detailed in the Hire Schedule
g) Charges in connection with the administration of your account with us, as detailed in the Hire Schedule, which may include printing and postage costs.
7.1 You must pay all fee, charges and costs that become due and payable under this Hire Agreement on the day of the Hire
7.2 If you do not pay for the Hire in full, we reserve the right to charge, in addition to any other costs, recoverable under the Hire Agreement
a) interest, calculated daily on the total outstanding balance. The interest rate used to calculate the interest payable for the day is the 90 day bank bill swap rate published on the first business day of the month, plus 5% interest
b) any costs and expenses (including commission payable to any commercial or mercantile agents and legal costs) incurred by us in recovering any unpaid amounts under this Hire Agreement.
8 YOUR OBLIGATION TO US
8.1 This Hire Agreement is personal to you and so you must not allow or authorise any other person or entity to use, re-hire or have possession of the Equipment at any time, unless expressly agrees by us in writing
8.2 You agree that before accepting the equipment, you have satisfied yourself as to the suitability, condition and fitness for the purpose of the equipment for the job you intend to use it for. Subject to clauses 15.2 and 15.3, we make no representation and give no guarantee or warranty that the equipment is suitable for your intended purpose.
8.3 To help you stay safe during the Hire Period, you and your employees, agents and contractors must:
a) operate the equipment safely, strictly in accordance with all laws, only for its intended use and in accordance with the manufacturer instructions
b) ensure persons operating or erecting the equipment are suitably trained on its safe and proper use, qualified to use the equipment and where necessary, hold a current Licence to Perform High Risk Work
c) wear suitable clothing and protective equipment when operating the equipment as required or recommended by us or the manufacturer
d) ensure that no persons operating the equipment are under the influence of drugs and alcohol
e) conduct a job safety analysis prior to using the equipment
f) ensure that no persons carry illegal, prohibited or dangerous substances in or on the equipment: and
g) display all safety signs and instruction (as required by law) and ensure that all instructions and signs are observed by operators of the equipment.
8.4 It is important to take care of the equipment during the Hire Period, you must:
a) clean, fuel, lubricate and keep the equipment in good condition and in accordance with the manufacturers and our instructions at your own cost
b) not in any way alter, modify, tamper with, damage or repair the equipment without prior written consent: and
c) not deface, remove, vary or erase any identifying marks, plate, number, notices or safety information, on the equipment
8.5 At all times during the Hire Period, you must store the equipment safely and securely and protected from theft, seizure, loss or damage.
8.6 You will allow us to enter your premises and inspect the equipment from time to time during the Hire Period. You can also request to conduct a joint inspection of the equipment with us at the end of the Hire Period.
8.7 Whenever you are moving the equipment, you must ensure the safe loading, securing and transporting of all equipment in accordance with all laws and manufacturer’s guidelines. You (or any contractor you engage) must observe any safety directions advised by us and/or manufacturer of the equipment to ensure its safe loading and handling.
8.8 You must not remove the equipment from the State or Territory in which you hired it without our written consent
8.9 You must not use the equipment off-shore, in a mine, in an area where friable asbestos is present, or move the equipment over water without prior consent, which may by reasonably withheld.
8.10 You warrant that you will comply with all Environmental Laws from time to time and immediately rectify any breach of an Environmental Law caused by the use of the equipment.
8.11 You must use best endeavours to ensure that the equipment is not contaminated with any hazardous substances (including asbestos). Subject to clause 8.9, you must advise us of any risks of hazardous substance contamination to the equipment as soon as they become apparent. Where equipment may have been subjected to contamination, you must effectively decontaminate the equipment, as well as provide us with written details of decontamination processes applied. If, in our opinion acting reasonably, the equipment has not been properly decontaminated or is not capable of being decontaminated, you will be charged for the new replacement cost of the equipment.
8.12 If, at your request, we supply an operator to operate the equipment. (“Operator”)
a) the operator will be under your direction and control during the Hire Period and comply with you reasonable directions.
b) we will not, while the operator is working under your direction and control in accordance with Clause 8.13(a), seek to direct or supervise any of the work undertaken by operator
c) we will not be liable to you for any acts or omissions of the operator where they are acting under your direction and control during the Hire Period and
d) you will not allow any other person to operate the equipment without our prior written consent.
9. REMEMBER, WE OWN THE EQUIPMENT
9.1 You acknowledge that we own the equipment and in all circumstances we retain title to the equipment (even if you go into liquidation or become bankrupt during the Hire Period). Your rights to use the equipment are as a bailee only
9.2 Except in the circumstances set out in Clause 10, you are not entitled to offer, sell, assign, sub-let, charge, mortgage, pledge or create any form of security interest over, or otherwise deal with the equipment in any way.
9.3 In no circumstances will the equipment be deemed to be a fixture.
10.1 You consent to us affecting and maintaining a registration on the register (in any manner we consider appropriate) in relation to any security interest contemplated or constituted by this Hire Agreement in the equipment and the proceeds arising in respect of any dealing in the equipment and you agree to sign any documents and provide all assistance and information to us required to facilitate the registration and maintenance of security interest. We may at any time register a financing statement or financing change statement in respect of a security interest (including any purchase money security interest). You waive the right to receive notice of a verification statement in relation to any registration on the register of a security interest in respect of the equipment
10.2 You undertake to:
a) do anything (in each case, including executing any new document or providing any information) that is required by us (i) so that we acquire and maintain one or more perfected security interests under the PPSA in respect of the equipment and its proceeds, (ii)to register a financing statement or financing change statement and (iii)to ensure that our security position, and rights and obligations, are not adversely affected by the PPSA:
b)not to register a financing change statement in respect of a security interest contemplated or constituted by this Hire Agreement without our prior written consent: and
c) not register, or permit to be registered, a financing statement or a financing change statement in relation to the equipment in favour of a third party without our prior written consent.
10.3 If Chapter 4 of the PPS Act would otherwise apply to the enforcement of a security interest arising under or in connection with this Hire Agreement and:
a) Section 115 (1) of the PPS Act allows for the contracting out of the provisions of the PPS Act, the following provisions of the PPS Act will not apply and you will have no rights under them: Section 95 (to the extent that it requires the secured party to give notices to the grantor) Section 96: Section 118 (to the extent that it allows a secured party to give notice to the grantor) Section 121 (4), Section 125, Section 130, Section 132 (3)(d), Section 132 (4), Section 135, Section 142 and Section 143, and
b)Section 115 (7) of the PPS Act allows for the contracting out of provisions of the PPS Act, the following provisions of the PPS Act will not apply and you will have no rights under them, Section 127, Section 129(2) and (3), Section 130(1), Section 132, Section 134(2), Section 135, Section 136(3), (4) and (5) and Section 137.
10.4 Unless otherwise agreed and to the extent permitted by the PSSA, you and we agree not to disclose information of the kind referred to in Section 275(1) of the PSS Act to an interested person, or any other person requested by an interested person. You waive any right you may have, or but for this clause may have had, under Section 275(7)(c) of the PPS Act to authorise the disclosure of the above information.
10.5 For purposes of the Section 20 (2) of the PPS Act, the collateral is equipment including any equipment which is described in any Hire Schedule provided by us to you from time to time. This Hire Agreement is a security agreement for purposes of the PPS Act
10.6 We may apply amounts received in connection with this Hire Agreements to satisfy obligations secured by a security interest contemplated or constituted by this Hire Agreement in any way we determine in our absolute discretion.
11 RESPONSIBILTY FOR THE EQUIPMENT
You are responsible for the equipment during the Hire Period
12 RETURN OF EQUIPMENT
12.1 You must return the equipment to us in the same clean condition and good working order it was in when you received it, ordinary fair wear and tear excluded. If you do not properly clean the equipment. We will charge you a cleaning cost in accordance with clause 6©
12.2 Except in circumstances set out in Clause 12.3 below, it is your responsibility to return the equipment in good working condition to the Newcastle Hire and Excavations, 219 New England Highway, Thornton you hired it from during normal business hours.
12.3 If you have requested and we have agreed to collect the equipment from you, you must ensure it is kept safe and secure until the time of collection.
13 WHAT TO DO IF EQUIPMENT BREAKS DOWN
13.1 In the event that the equipment breaks down or becomes unsafe to use during the Hire Period you must:
a) immediately stop using the equipment and notify us
b) take all steps necessary to prevent injury occurring to persons or property as a result of the condition of the equipment
c) take all steps necessary to prevent any further damage to the equipment itself and
d) not repair or attempt to repair the equipment without our written consent.
13.2 Except if Clause 14.1 applies, upon receiving notice from you under Clause 12.1 we will:
a) take all steps necessary to repair the equipment or provide suitable substitute equipment as soon as reasonably possible after being notified by you and
b)not impose a hire charge for that portion of the Hire Period for which the equipment was broken down or unsafe nor the costs associated with any repair or replacement of the equipment
14 WHAT TO DO IF EQUIPMENT IS LOST, STOLEN OR DAMAGED
14.1 Except where clause 32 applies, If the equipment has broken down or become unsafe to use as a result of your negligence or if the equipment is lost, stolen or damaged beyond fair wear and tear during the Hire Period, You will be liable for:
a) any costs incurred by us to recover and repair or replace the equipment and
b) the hire charges for that portion of the Hire Period during which the equipment is being recovered and repaired or replaced
14.2 Provided that you pay the costs and charges described in Clause 14.1, we will return the equipment to you once it has been repaired or replaced and you will continue to pay the hire charged for the remainder of the Hire Period.
15 INDEMNITIES AND EXCLUSION OF LIABILITIES
15.1 Subject to Clause 15.3 and except as expressly provided to the contrary of the Hire Agreement, all guarantees, terms, condition, warranties, undertakings, inducement, or representations whether express or implied, statutory or otherwise, relating to this Hire Agreement or its subject matter are excluded to the maximum extent permitted by law.
15.2 Nothing in this Hire Agreement excludes, restricts or modifies any right or remedy, or any guarantee, term,
15.3 Where any legislation implies or imposes a guarantee, term, condition, warranty, undertaking, inducement or representation in relation to this Hire Agreement and we are not able to exclude that guarantee, term, condition, warranty, undertaking, inducement or representation (Non-Excludable Provision) and we are able to limit your remedy for a breach of the Non-Excludable Provision, then our liability for breach of the Non-Excludable Provision is limited to (at our election): (a) in the case of goods, the repair or replacement of the goods or the supply of substitute goods (or the cost of doing so) or (b) in the case of services, the supplying of the services again, or the payment of the cost of having the services supplied again.
15.4 Subject to our obligations under the Non Excludable Provisions and to the maximum extent permitted by law. Our maximum aggregate liability for all claims under or relating to this Hire Agreement or its subject matter, whether in contract, tort (including without limitation negligence) in equity, under statute, under an indemnity, based on fundamental breach or breach of a fundamental term or on any other basis, is limited to an amount equal to the fees paid by you under the Hire Agreement. In calculating our aggregate liability under this Clause, the parties must include any amounts paid or the value of any goods or services replaced, repaired or supplied by us for a breach of any Non-Excludable Provisions.
15.5 Subject to Clause 15.3 and 15.4, we will not be liable to you for any consequential, indirect or special loss or damage, loss of actual or anticipated profits or revenue, loss of business, business interruption, wasted costs, you have uncured, amounts that you are liable to your customers for any loss suffered by third parties under or relating to this Hire Agreement or its subject matter whether in contract, tort (including without limited negligence) in equity, under statute, under an indemnity, based on fundamental breach or breach of a fundamental term or on any other basis, whether or not such loss or damage was foreseeable and even if advised of the possibility of the loss of damage.
15.6 You are liable to any indemnify us against all liability, claims, damage, loss, costs and expenses (including, without limitation, legal fees, costs and disbursements on a full indemnity basis, whether incurred or awarded against us and any environmental loss, cost, damage or expense) in respect of:
a) personal injury
b) damage to tangible property or
c) claim by a third party
In respect of your hire or use of the equipment or your breach of the Hire Agreement. Your liability under the indemnity is diminished to the extent that our breach of the Hire Agreement or our negligence causes the liability, claims, damage, loss, costs or expenses.
15.7 Each indemnity in this Hire Agreement is a continuing obligation, separate and independent from the other obligations of the parties and survives termination, completion and expiration of this Hire Agreement. It is not necessary for a party to incur expense or make payments before enforcing a right of indemnity conferred by this Hire Agreement.
15.8 We will not be liable to you for any acts or omissions of any person supplied by us where that person is acting under your direction and control during the Hire Period and you indemnify us against all liability, claims, damage, loss, costs and expenses (including, without limitation, legal fees, costs and disbursements on a full indemnity basis, whether incurred or awarded against us or any environmental loss, cost, damage or expense) arising from or incurred in connection of such acts or missions.
16 WHEN THIS HIRE AGREEMENT TERMINATES
16.1 Either party may terminates this Hire Agreement and any Hire Period immediately by giving notice to the other party, if
a) that other party breaches any term of the Hire Agreement and fails to remedy the breach within 14 days of written notification of this breach, or
b) that other party becomes bankrupt or insolvent, executes a personal insolvency agreement, enters into liquidation, administration, receivership or ceases to carry on business.
16.2 We may terminate the Hire Agreement and Hire Period for any other reason on 24 hours notice
16.3 These rights of termination are in addition to any other rights either party has under the Hire Agreement and does not exclude any right or remedy under law or equity.
17 RECOVERY OF EQUIPMENT
If you are in breach of the Hire Agreement or if the Hire Agreement or a Hire Period has been terminated under Clause 17, we may take all steps necessary (including legal action) to recover the equipment, including entering your premises to do so. Upon receiving written notice from us, you expressly consent to us entering your premises for the purpose of recovering our equipment.
Except where Clause 33 applies
a) As security for your obligations and liabilities under this Hire Agreement, you hereby charge for the due and punctual payment and performance of those obligations and liabilities, all of your legal and equitable interest (both present and future) of whatsoever nature held in any and all real property
b) Without limiting the generality of the charge of this Clause, you agree, on our request, to execute any documents and do all things necessary required by us to register a mortgage security or other instrument of security over any real property and against the event that you fail to do so within a reasonable time of being so requested, you irrevocably and by way of security, appoint any credit manager or solicitor engaged by us to be your true and lawful attorney to execute and register such instruments
c) You will indemnify us on an indemnity basis against all costs and expenses incurred by us in connection with the preparation and registration of any such charge and mortgage documents: and
d) You also consent unconditionally to us lodging a caveat or caveats nothing our interest in any of your real property
19 EQUIPMENT THAT IS COLLECTED OR DELIVERED IN A DAMAGED AND/OR DEFECTIVE CONDITION
If you collect or receive the equipment (whichever is applicable) and find that it is broken, damaged and/or defective, you must notify us within this time period, we are entitled to assume that the equipment you collected or received was in good order and condition
20 LONG DISTANCE MAINTENANCE
20.1 If you hire equipment for use at a Long Distance Location, this Clause 21 applies to you
20.2 The PMP for all equipment operating in a Long Distance Location will be subject to a per kilometre charge both to and from the premises nominated by you, as specified by us, there will be no charge for the first 50 km either way
20.3 Multiple items of equipment you hire from us at the Long Distance Location will only be charges as one call out
20.4 For avoidance of doubt, you remain responsible for daily maintenance and care of all equipment in accordance with Clause 8, including but not limited to, daily checking of all fluids (fuel, oil, water, battery levels, etc) general tightening of any loose nuts, bolts, belts or fittings and lubrication of all grease points.
20.5 If the equipment breaks down at a Long Distance Location you will also pay is costs associated with any attendance to the Long Distance Location in addition to any other costs payable under this Hire Agreement.
21.1 At Newcastle Hire and Excavations, we take your privacy seriously, we will comply with the National Privacy Principles in all dealings with you.
21.2 We may need to collect personal information about you, including but not limited to, your full name and address, drivers licence, credit card details, date of birth, credit or business history and other personal information, you consent to us using your personal information in order to:
a) fulfil functions associated with the hire of equipment to you, including but not limited to assessing your credit worthiness or taking steps in accordance with Clause 10
b) provide services to you
c) prevent theft of our equipment
d) enter into contracts with you or third parties and
e)to market to you and maintain a client relationship with you
21.3 You also consent to us disclosing your personal information:
a)to any credit provider or credit reporting agency for the purposes of obtaining information about your consumer or commercial credit or business history or your commercial activities or credit worthiness: and
b)to our service providers, contractors and affiliated companies from time to time to help improve and market our services to you
21.4 you have the right to access personal information we hold about you
21.5 a copy of our privacy statement is available upon request
22 FORCE MAJEURE
22.1 subject to Clause 22.2, neither party will be responsible for any delays in delivery, installation or collection due to causes beyond their control including but not limited to acts of God, war, terrorism, mobilisation, civil commotion, riots, embargoes, orders or regulations of governments of any relevant jurisdiction, fires, floods, strikes, lockouts or other labour difficulties, shortages of or inability to obtain shipping space or land transportation
22.2 nothing in clause 22.1 will limit or exclude your responsibility and liability under the Hire Agreement for equipment that is lost, stolen or damaged beyond fair and wear and tear during the Hire Period, or has broken down or become unsafe to use as a result of your conduct or negligence
If any part of this Hire Agreement becomes void or unenforceable for any reason then that part will be severed with the intent that all remaining parts will continue to be in full force and effect and be unaffected by the severance of any other parts
24 GOVERNING LAW
The Hire Agreement is governed by the laws of the State or Territory where the Hire Agreement is entered into by the parties and each party submits to the non-exclusive jurisdiction of the courts of that State or Territory
25 ENTIRE AGREEMENT
The Hire Agreement as defined in Clause 1, comprises the entire agreement between the parties. No additional terms or conditions (including any terms contained in any purchase order) apply to the hire of the equipment unless agreed in writing by the parties
26 NO RELIANCE
Subject to Clauses 15.1 and 15.3, you acknowledge that neither we nor any person acting on our behalf have made any representation or other inducement to you to enter into the Hire Agreement and you have not entered into the Hire Agreement in reliance of any representations or inducements (including in relation to the use of the equipment) except for those representations contained in this Hire Agreement
Except where Clause 31 applies, from time to time, we may need to vary this Hire Agreement. If we intend to do so, we will give you 30 days written notice and clearly set out our proposed amendments. If you have reasonable grounds to believe the change will be detrimental to your rights, you may terminate this Hire Agreement without penalty within 30 days of receiving our written notice. Any other variation of these terms and conditions must be agreed in writing by you and us.
28 NO WAIVER RIGHTS
Subject to Clause 19, no delay or omissions by a party to exercise any rights, power or remedy available to that party as a result of a continuing breach or default under the Hire Agreement will impair any such right, power or remedy, nor will it be construed to be a waiver of that party’s rights to take action or make a claim in respect of a continuing breach or default.
29 SIGNING THIS AGREEMENT
29.1 The person signing any document which forms part of the Hire Agreement for and on behalf of you hereby warrants that he or she has your authority to enter into the Hire Agreement on your behalf and grant the security interests in connection with it and is empowered to bind you to the Hire Agreement and each security interest granted in connection with it.
29.2 Except where Clause 31 applies, the person signing this Hire Agreement indemnifies us against all losses, costs and claims incurred by us arising out of the person so signing this Hire Agreement not in fact having such power and/or authority
30 CLAIM FOR PAYMENT
This Hire Agreement is a claim for payment under the Building and Construction Industry Security of Payment Act 1999 (NSW)
31 PROVISIONS OF THIS AGREEMENT EXCLUDED FROM CONSUMER CONTRACTS
Where you are an individual acquiring goods or services wholly or predominately for personal, domestic or household use or consumption, the following provisions of the Terms of Hire will not apply for the purpose of your Hire Agreement
a) Clause 17 (security)
b) Clause 26 (variation and
c) Clause 29.1 (signing this agreement)
32 LOSS THEFT DAMAGE WAIVER
Loss Theft Damage Waiver (LTD Waiver) is not insurance, but is an agreement by Newcastle Hire & Excavations, to limit Your liability in certain circumstances for loss, theft or damage to the hired equipment called the LDT Waiver Excess.
32.1 Where you have paid the LTD Waiver fee, we will limit Your liability subject to clause 32.3
32.2 The LTD Waiver Excess for each item of Equipment is the amount equal to:
(a) $500 or (if the replacement cost of the Equipment is less than $500) the replacement cost of the Equipment; or
(b) 15% of the cost of the repairs (if the Equipment is partially damaged and can be repaired) or 15% of the full new replacement cost of the Equipment (if the Equipment is lost, stolen or damaged beyond repair), whichever is greater.
32.3 Even if You have paid LTD Waiver Fee, We will not waive Our rights to claim against You for loss, theft or damage to the Equipment and LTD Waiver will not apply if the loss, theft or damage:
(a) Has arisen as a result of Your breach of this Hire Agreement;
(b) Has been caused by Your negligent act or omission;
(c) Has arisen as a result of Your use of the Equipment in violation of any laws;
(d) Has been caused by a lack of lubrication or a failure to properly service or maintain the Equipment;
(e) Has been caused by the over loading of the Equipment or any components thereof;
(f) Is caused by vandalism;
(g) Where the Equipment has been wilfully damaged by You or Your employee and agents;
(h) Is to tyres or tubes;
(i) Is to windscreens, mirrors, glass or Perspex
(j) Has been caused by Your failure to use the Equipment for its intended purpose or in accordance with manufacturer’s instructions.
Newcastle Hire and Excavations
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