These Rental Terms, together with any Hire Form (defined in clause 1(a)), set out the agreement (this Agreement) under the terms of which you or the company which you represent (the Customer, you) will rent the Equipment or Services from Kite Contracting Pty Ltd ABN 64 738 225 683 (Kite Contracting, we, us, our).
We may change these Rental Terms at any time by updating the Rental Terms page on our website, and your rental of an Equipment or Services following such an update will represent an agreement by you to be bound by the Rental Terms as amended. Changes to these Rental Terms will only apply to Hire Forms entered into after the change occurs.
1. RENTAL FORM, THIS AGREEMENT
(a) These Rental Terms will apply to all the Customer's dealings with Kite Contracting, including being incorporated in all agreements, quotations or orders under which Kite Contracting is to rent equipment and/or provide services to the Customer (each a 'Hire Form') together with any additional terms included in such a Hire Form (provided such additional terms are recorded in writing).
(b) The Customer will be taken to have accepted this Agreement if the Customer accepts a Hire Form, or if the Customer orders, accepts or pays for any equipment and/or services provided by Kite Contracting after receiving or becoming aware of this Agreement or these Rental Terms.
(c) In the event of any inconsistency between these Rental Terms and any Hire Form, the clauses of these Rental Terms will prevail to the extent of such inconsistency, except that any "Special Conditions" (being terms described as such in a Hire Form) will prevail over these Rental Terms to the extent of any inconsistency.
Kite Contracting provides to the Customer and the Customer accepts from Kite Contracting the rental of the Equipment and/or Services upon and subject to the provisions of this Agreement.
3. PRE HIRE
The Customer warrants that they:
(a) will send a copy of their valid driver's licence/s within 24 hours of confirming the booking to [email@example.com;
(b) listen to the instructions provided by Kite Contracting [and read the Manufacturer’s manual on how to use the Equipment] the on or prior to the Start Date;
(c) will obtain up to date information from relevant authorities, (for example, by using the "Dial Before You Dig" service), about any infrastructure networks at the Job Site; and
(d) if applicable, ensure that any person collecting or taking delivery of the Equipment on behalf of the Customer is authorised by the Customer to do so and the Customer will not allege that any such person is not so authorised.
4. EQUIPMENT USE
(a) The Customer must ensure that the Equipment is only used:
(i) on the Job Site;
(ii) for the Purpose;
(iii) in a proper and skilful manner, by Personnel who are appropriately trained, licensed, certified and competent;
(iv) in accordance with the Equipment manufacturer's requirements, recommendations and instruction manuals provided to the Customer; and
(v) in accordance with all Laws, rules and regulations applicable to the Equipment and its use and/or relating to the Job Site.
(b) The Customer must not, and must not allow any Personnel or third party to:
(i) tow trailered Equipment with an unsuitable or unroadworthy vehicle or on unsealed roads;
(ii) tow trailered equipment, if the driver is not the holder of a valid driver's license;
(iii) use the Equipment for any dangerous or illegal purpose;
(iv) use or allow the Equipment to be used to carry passengers for payment of any kind and/or for racing;
(v) make any alterations to the Equipment, including by unauthorised repair;
(vi) use or allow the Equipment to be used while the operator is under the influence of alcohol or drugs;
(vii) use the Equipment when it is damaged or unsafe;
(viii) affix or install any accessories, equipment or device on or to the Machine (other than the Included Attachments set out in the Hire Form) without Kite Contracting prior written consent;
(ix) sub-hire the Equipment; and
(x) use the Equipment for the conveyance or towing of any load.
(c) The Customer must, when the Equipment is unattended, always keep it locked and keep the keys under their control.
(d) The Customer is responsible for the performance and cost of daily maintenance and care of all Equipment in its possession in accordance with the manufacturer’s instructions, including:
(i) daily checking of all fluids (fuel, oil, water, battery levels etc);
(ii) general tightening of any loose nuts, bolts, belts or fittings;
(iii) the lubrication of all grease points every 10hrs the Machine has been used;
(iv) if applicable, the adjustment of the tracks tension weekly; and
(v) if, applicable, the lubrication of the slew ring every 10hrs.
(e) If the Customer does not comply with clauses 4(d)(iii) and 4(d)(v) above and Kite Contracting replaces any of the pins, slew rings and/or tracks within a reasonable time following the return of the Machine, the Customer must promptly pay for such replacement.
(f) The Customer agrees that they are responsible for the acts and omissions of any other person they allow to use the Equipment.
(g) The Customer must:
(i) ensure that the Machine has a full tank of fuel when it is returned to Kite Contracting, unless specified otherwise in the Hire Form;
(ii) only fill the Equipment with fuel of a type that meets the Equipment's specifications; and
(iii) promptly pay to Kite Contracting the costs of refuelling the Equipment if the Customer fails to comply with clause 4(g)(i) at the rate of $2.50 per litre of fuel.
(h) Kite Contracting is not liable to any person for any loss of, or damage to, personal property that is left in the Equipment after its return to Kite Contracting or stolen from the Equipment or otherwise lost during the Rental Term.
(i) The Customer acknowledges that the Equipment is rented out in a clean condition. The Customer must return the Equipment in the same state of cleanliness (inside and out) it was in on the Start Date (Clean). If the Equipment is not Clean upon return, a $50 cleaning fee will apply.
(a) Unless the Services include return of the Equipment by Kite Contracting and subject to clause 12, the Customer must on the Return Date and by the Return Time specified in the Hire Form, return the Equipment to Kite Contracting at the Return Address in the same condition as it was in on the Start Date.
(b) If the Customer does not comply with clause 5(a), the Customer must pay the Late Charge for every additional 24 hour period after the Return Time on the Return Date for which the Customer retains possession of the Equipment.
6. REMOTE HIRE
Where the Customer hires Equipment and/or the Services are to be provided in a Remote Site, the Customer will pay an additional charge for any delivery, servicing and repair of the Equipment (Remote Area Charges) as follows:
(a) $1 per kilometre travelled by Kite Contracting;
(b) if applicable, any direct travelling and accommodation costs reasonably incurred by Kite Contracting and/or its Personnel.
7. REPLACEMENT, LOSS AND DAMAGE
Loss, damage and personal injury
(a) The Customer will be fully liable to Kite Contracting for:
(i) any loss or damage to the Equipment during the Rental Term, or otherwise when the Equipment is in the Customer's possession, and must give reasonable notice to Kite Contracting in writing of any such loss or damage; and
(ii) all damage to the property of any person which is caused or contributed to by the Equipment during the Rental Term, or otherwise when the Equipment is in the Customer's possession.
(b) If Kite Contracting notifies the Customer in writing, the Customer must replace all parts of the Equipment which during the Rental Term have become worn out, lost, stolen, damaged beyond repair or permanently rendered unfit for use (fair wear and tear excepted), provided that the Customer must not make any replacement, alteration or addition of any nature which may lead to a material reduction in the value of the Equipment.
8. INCIDENTS AND INSURANCE
(a) The Customer acknowledges that while Kite Contracting holds insurance in relation to the Equipment such insurance may not cover the Customer or the Customer's use of the Equipment and Kite Contracting will have no obligation or requirement to insure the Customer's use of the Equipment under this Agreement. The Customer is strongly encouraged to take out adequate insurance to cover all potential liabilities that could arise from their use of the Equipment.
(b) The Customer must not do or permit anything to be done which may make Kite Contracting's insurance invalid or able to be cancelled or which may increase Kite Contracting's insurance premiums.
(c) If the Equipment is involved in an accident or claim, damaged, destroyed, stolen or if damage or loss is sustained to the property of any third party in connection with the Equipment during the Rental Term, or otherwise when the Equipment is in the Customer's possession (Incident), the Customer:
(i) must promptly report the Incident to the local police (if required by law);
(ii) must report the Incident to Kite Contracting in writing within one Business Day;
(iii) must, if such damage, destruction or theft is covered by and compensated to Kite Contracting under an insurance policy, pay the relevant excess amount to Kite Contracting, as well as any other reasonable costs that Kite Contracting incurs in relation to such damage, destruction or theft;
(iv) must not, without Kite Contracting's prior written consent, make or give any offer, promise of payment, settlement, waiver, release or admission of liability in relation to the incident, except as required by law;
(v) must, if requested, permit Kite Contracting or its insurer bring, defend, enforce or settle any legal proceedings in the Customer's name in relation to the incident; and
(vi) must, if requested, provide to Kite Contracting, within a reasonable time, any statement, information or assistance which Kite Contracting or its insurer requests, including by attending a lawyer's office or a court to give evidence.
9. DAMAGE WAIVER
(a) Subject to clauses 8(c) and 9(a), the amount Kite Contracting may claim from the Customer in connection with this agreement for any loss or damage caused by fire, storm, earthquake, collision, accident or theft will be limited, per incident, to a maximum of the excess or 80% of the full new replacement cost of the Equipment, whichever is the greater (Damage Waiver).
(b) This Damage Waiver does not apply to loss or damage:
(i) occasioned by the Customer failing to take reasonable care of the Equipment;
(ii) caused to the Equipment as a result of any illegal activity, misappropriation or wrongful conversion of the Equipment by the Customer;
(iii) caused by the Customer's misuse, abuse, overloading, exceeding the rated capacity or improper servicing or repairs of the Equipment;
(iv) caused by the exposure of the Equipment to corrosive substances, salt water or toxic materials;
(v) to the Included Attachments and/or tools, accessories, parts, grease guns, hoses, electrical cords, lights, light globes and other similar accessories, ground engaging tools, tracks, tyres and glass;
(vi) that occurred while the Equipment was in transit, including during loading and unloading; and
(vii) arising in circumstances where a claim has been made by or against a third party.
The Customer must pay the Fees to Kite Contracting in the amounts set out in the Hire Form or as otherwise agreed in writing.
10.2 TIME FOR PAYMENT
Unless otherwise agreed in writing:
(a) the Customer must pay for all goods and services upfront at the time of booking, unless specifically agreed otherwise; and
(b) in all other circumstances, if Kite Contracting issues an invoice to the Customer, payment must be made by the time(s) specified in such invoice.
10.3 PAYMENT METHOD
The Customer must pay Fees using the fee payment method specified in the Hire Form.
10.4 LATE PAYMENT
If the Customer does not pay Kite Contracting the amounts due and payable under an invoice on or before its due date, without limiting any of Kite Contracting's other rights under this Agreement, the Customer must pay Kite Contracting interest at the rate of 10% per annum on each amount outstanding, from the due date for payment to the date on which the payment is received by Kite Contracting.
Unless otherwise indicated, amounts stated in a Hire Form do not include GST. In relation to any GST payable for a taxable supply by Kite Contracting, the Customer must promptly pay the GST subject to Kite Contracting providing a tax invoice.
10.6 CARD SURCHARGES
Kite Contracting reserves the right to charge credit card surcharges in the event payments are made using a credit, debit or charge card (including Visa, MasterCard, American Express or Diners Club).
10.7 PAYMENTS OTHER THAN FEES
(a) Immediately on request by Kite Contracting, the Customer will pay:
(i) the price of any Equipment which is for whatever reason not returned to Kite Contracting;
(ii) the full cost of repairing any damage to the Equipment caused or contributed to by the Customer;
(iii) all costs incurred by Kite Contracting in delivering and recovering possession of the Equipment; and
(iv) any expenses and legal costs (including commission payable to a commercial agent) incurred by Kite Contracting in enforcing this Agreement due to the Customers default.
(b) Without limiting the ability of Kite Contracting to recover all amounts owing to it, the Customer authorises Kite Contracting to charge any amounts owing by the Customer to any credit card or account which the Customer provides in a Hire Form.
11. OWNERSHIP, POSSESSION AND TITLE
(a) The Equipment is and will at all times remain the property of Kite Contracting, notwithstanding delivery of the Equipment to the Customer or the possession and use of the Equipment by the Customer.
(b) The Customer will not have any right, title or interest in or to the Equipment except as expressly set out in this Agreement.
(c) The Customer must not, without Kite Contracting's prior written consent, part with possession of the Equipment during the Rental Term.
(d) The Customer must not allow any security interest, encumbrance, charge or lien of any kind to arise or remain in relation to the Equipment, including a repairer's lien, except:
(i) if a repairer's lien arises, the Customer must take all necessary steps to have it removed or satisfied, or, at Kite Contracting's option, Kite Contracting may remove or satisfy the lien at the Customer's cost; and
(ii) a security interest, lien or charge that arises by law in respect of unpaid rates, taxes, fees or duties of any kind, in which event the Customer must pay any money due so that the Equipment will be free of the lien or charge.
12. PERSONAL PROPERTY SECURITIES
The Customer grants a security interest in all of its present and after acquired property and in all of its present and future rights, title, estate and interest, whether legal and equitable, in relation to any personal property, including any debts owed to the Customer, in favour of Kite Contracting to secure the performance of its liabilities and obligations hereunder or on any account whatsoever.
If requested by Kite Contracting the Customer must immediately sign any documents, provide all necessary information and do anything else required by Kite Contracting to ensure that the security interest created in Kite Contracting's favour is a perfected security interest.
The Customer must not grant any other security interest in favour of any party until Kite Contracting has perfected its security interest created under these Terms.
The Customer must not do or permit anything to be done that may result in the security interest granted to Kite Contracting ranking in priority behind any other security interest.
The Customer acknowledges that these Terms constitute a security agreement for purposes of the PPSA and the Customer will do all things necessary to enable a security interest to be registered under the PPSA, and will comply with all requirements of the PPSA.
To the fullest extent permitted by the PPSA, the Customer agrees to contract out of the application of the provisions listed in sections 115(1) and 115(7) and the sections listed therein shall not apply.
The Customer hereby waives any rights the Customer may otherwise have to:
(a) receive any notices or statements the Customer would otherwise be entitled to receive under sections of the PPSA including for the avoidance of any doubt the sections referred to in sections 115(1) and 115(7) of the PPSA;
(b) apply to a Court for an order concerning the removal of an accession under section 97 of the PPSA;
(c) object to a proposal of the Customer to purchase or retain any collateral under sections 130 and 135 of the PPSA; and
(d) receive a copy of a verification statement confirming registration of a financing statement, or a financing change statement, relating to any security interest created under this document.
For the purpose of this clause and other relevant clauses in this Agreement, the expressions "accession", "collateral", "financing statement", "financing change statement", "security agreement", "security interest", "perfected security interest" and "verification statement" have the meanings given to them under, or in the context of the PPSA.
13. EARLY RETURN
Notwithstanding any other clause in this Agreement, Kite Contracting may demand the early return of the Equipment to the Return Address, or retake possession of the Equipment, if Kite Contracting reasonably suspects that:
(a) damage to the Equipment or injury to any person in connection with the Equipment is reasonably likely; or
(b) the Equipment may be used for an unlawful purpose.
14. THIRD PARTY GOODS AND SERVICES
(a) If Kite Contracting is required to acquire goods or services supplied by a third party, the Customer may be subject to the terms and conditions of that third party ('Third Party Terms').
(b) The Customer agrees to any Third Party Terms applicable to any goods or services supplied by a third party that the Customer or Kite Contracting acquires as part of renting the Equipment and Kite Contracting will not be liable for any loss or damage suffered by the Customer in connection with such Third Party Terms.
Kite Contracting may subcontract any aspect of providing the Services and the Customer hereby consents to such subcontracting.
16. LIABILITY, WARRANTIES AND INDEMNITIES
(a) To the maximum extent permitted by law, Kite Contracting's liability for all claims in aggregate (whether those claims be for breach of contract, negligence or otherwise, and whether those claims are for economic loss, or for personal injury or other damage) arising under or in connection with this Agreement:
(i) is totally excluded, to the extent it concerns liability for indirect, special and consequential damages, and damages (whether direct or indirect) reflecting loss of revenue, loss of profits and loss of goodwill (except to the extent this liability cannot be excluded under the Competition and Consumer Act 2010 (Cth)); and
(ii) is limited, insofar as concerns other liability, to the total money paid to Kite Contracting under this Agreement as at the date the event giving rise to the relevant liability occurred (or, where there are multiple events, the date of the first such event).
(b) Nothing in this agreement is intended to limit the operation of the Competition and Consumer Act 2010 (Cth).
(a) The Customer acknowledges that in deciding to rent the Equipment and/or acquire the Services and in entering into this Agreement the Customer has not relied on the skill or judgment of Kite Contracting and that the Customer has satisfied itself as to the condition and suitability and fitness for the Customer's purpose of the Equipment and/or the Services.
(b) To the maximum extent permitted by applicable law, all express or implied representations and warranties (whether relating to fitness for purpose or performance, or otherwise) not expressly stated in this Agreement are excluded.
(c) Where any law (including the Competition and Consumer Act 2010 (Cth)) implies a condition, warranty or guarantee which may not lawfully be excluded, then, to the maximum extent permitted by applicable law, Kite Contracting's liability for breach of that non-excludable condition, warranty or guarantee will be limited to:
(i) in the case of goods, their replacement or the supply of equivalent goods or their repair; and
(i) in the case of services, the supply of the services again, or the payment of the cost of having them supplied again.
(a) The Customer indemnifies Kite Contracting from and against all losses, claims, expenses, damages and liabilities (including any taxes, fees or costs) which arise out of:
(i) the casual maintenance, use, storage or operation of the Equipment during the Rental Term or otherwise when the Equipment is in the Customer's possession;
(ii) injuries to or deaths of persons and damage to property in connection with the Equipment during the Rental Term or otherwise when the Equipment is in the Customer's possession;
(iii) any breach of this Agreement by the Customer; or
(iv) any negligent, fraudulent or criminal act or omission of the Customer or its Personnel.
17.1 TERMINATION BY COMPANY
Kite Contracting may terminate this Agreement in whole or in part immediately by written notice to the Customer, if the Customer is in breach of any term of this Agreement.
17.2 TERMINATION BY THE CUSTOMER
(a) The Customer may terminate this Agreement in whole or in part by written notice to Kite Contracting.
(b) If the notice under clause 17.2(a):
(i) 24 hours or more prior to the Start Date, Kite Contracting provide the Customer with a full refund of any Fees paid;
(ii) Less than 24 hours prior to the Start Date, Kite Contracting will provide the Customer with a full refund of the Fees paid, minus a 10% cancellation fee.
17.3 EFFECT OF TERMINATION
Upon termination of this Agreement, the Customer must promptly:
(a) pay any payments required by Kite Contracting in respect of the period of the Rental Term prior to the date of termination; and
(b) subject to any contrary direction given by Kite Contracting, deliver the Equipment and any other goods included in a Hire Form to the Return Address.
Any provision of this Agreement which, by its nature, would reasonably be expected to be performed after the termination, will survive and be enforceable after such termination.
18. DISPUTE RESOLUTION
(a) The parties must, without delay and in good faith, attempt to resolve any dispute which arises out of or in connection with this Agreement prior to commencing any proceedings.
(b) If a party requires resolution of a dispute it must immediately submit full details of the dispute to the chief executive officer of the other party or, if the party is an individual, that individual.
(c) The parties acknowledge that compliance with this clause 18 is a condition precedent to any entitlement to claim relief or remedy, whether by way of proceedings in a court of law or otherwise in respect of such disputes, except:
(i) in the case of applications for urgent interlocutory relief; or
(i) a breach by another party of this clause 18.
19.1 FORM OF NOTICE
A notice or other communication to a party under this Agreement must be:
(a) in writing and in English; and
(b) addressed to that party to:
(i) the postal address of that party; or
(ii) the email address of that party that has been regularly used by the parties to correspond during the term of this Agreement (unless such email address is known to be inactive by the party giving notice).
19.2 HOW NOTICE MUST BE GIVEN
A notice must be given by one of the methods set out in the table below and is regarded as given and received at the time set out in the table below.
20.1 GOVERNING LAW
This Agreement is governed by the law applying in Queensland, Australia.
Each party irrevocably submits to the exclusive jurisdiction of the courts of Queensland, Australia, Australia and courts of appeal from them in respect of any proceedings arising out of or in connection with this Agreement. Each party irrevocably waives any objection to the venue of any legal process on the basis that the process has been brought in an inconvenient forum.
A party cannot assign, novate or otherwise transfer any of its rights or obligations under this Agreement without the prior consent of each other party (such consent not to be unreasonably withheld).
(a) Nothing contained in this Agreement creates an agency, partnership, joint venture or employment relationship between Kite Contracting and the Customer or any of their respective employees, agents or contractors.
(b) Neither party nor any person acting on its behalf may hold itself out as being entitled to contract or accept payment in the name of or on account of the other party.
This Agreement may only be amended by a document signed by each party.
No party to this Agreement may rely on the words or conduct of any other party as a waiver of any right unless the waiver is in writing and signed by the party granting the waiver.
20.7 FURTHER ACTS AND DOCUMENTS
Each party must promptly do all further acts and execute and deliver all further documents required by law or reasonably requested by another party to give effect to this Agreement.
20.8 ENTIRE AGREEMENT
This Agreement embodies the entire agreement between the parties and supersedes any prior negotiation, conduct, arrangement, understanding or agreement, express or implied, in relation to the subject matter of this Agreement.
In addition to capitalised terms defined in the Agreement Details above, capitalised terms used in this agreement will have the following meanings:
In this agreement, the following rules of interpretation apply:
(a) (singular and plural) words in the singular includes the plural (and vice versa);
(b) (gender) words indicating a gender includes the corresponding words of any other gender;
(c) (defined terms) if a word or phrase is given a defined meaning, any other part of speech or grammatical form of that word or phrase has a corresponding meaning;
(d) (person) a reference to "person" includes an individual, the estate of an individual, a corporation, an authority, an association, consortium or joint venture (whether incorporated or unincorporated), a partnership, a trust and any other entity;
(e) (party) a reference to a party includes that party's executors, administrators, successors and permitted assigns, including persons taking by way of novation and, in the case of a trustee, includes any substituted or additional trustee;
(f) (this agreement) a reference to a party, clause, paragraph, schedule, exhibit, attachment or annexure is a reference to a party, clause, paragraph, schedule, exhibit, attachment or annexure to or of this agreement, and a reference to this agreement includes all schedules, exhibits, attachments and annexures to it;
(g) (document) a reference to a document (including this agreement) is to that document as varied, novated, ratified or replaced from time to time;
(h) (currency) a reference to "$" or "dollar" is to Australian currency;
(i) (headings) headings and words in bold type are for convenience only and do not affect interpretation;
(j) (includes) the word "includes" and similar words in any form is not a word of limitation; and
(k) (adverse interpretation) no provision of this agreement will be interpreted adversely to a party because that party was responsible for the preparation of this agreement or that provision.