Note to customer - You should read these Hire Contract Conditions very carefully. They contain terms and conditions which may impact you, including that;
(a) the liability of Kennards to its Customers is excluded in some circumstances; and
(b) Customers may be liable for damage to goods that are hired by them, and for damage to goods or property owned by a third party; and
These Hire Contract Conditions apply to the exclusion of any other conditions proposed by the Customer, unless otherwise agreed by Kennards and the Customer in writing. Kennards agrees to hire Equipment to the Customer on terms set out in this document. If the Customer wishes to hire Equipment, Kennards will issue to the Customer a Hire Schedule, setting out the terms of the hire of that Equipment. Each Hire Schedule is not a separate contract but forms a part of this Hire Contract between Kennards and the Customer, together with any credit application, guarantee and indemnity or other contractual documents. The Customer agrees to receive hire schedules and all
associated documentation by electronic means, or by printed or other form where electronic means are not available. The Customer must check the Hire Schedule on receipt and unless the Customer notifies Kennards before collection of the Equipment that it disagrees with anything in the Hire Schedule, the terms of the Hire Schedule are accepted by the Customer. Kennards may in its absolute discretion decline to hire Equipment to the Customer at any time if it has reasonable cause to do so.
Amendment: These Hire Contract Conditions may be changed by Kennards from time to time by Kennards giving notice of the amendment to the Customer. Notice is deemed given when Kennards does any of the following:
(a) sends notice of the amendment to the Customer at any address (including an email address) supplied by the Customer;
(b) publishes the amended terms on its website or
(c) displays the amended terms at premises from which Kennards conducts hire operations.
Changes to these Hire Contract Conditions will only apply to Hire Schedules entered into after the change has been notified to the Customer by one of the methods mentioned above.
1. Interpretation of words in this contract
2. Kennards obligations
2.1 Allow the Customer to take and use the Equipment for the Hire Period;
2.2 Provide the Equipment to the Customer clean and in good working order;
2.3 Collect the Equipment within five days of being requested to do so by the Customer and issuing to the Customer a customer pick up number.
Note to customer: You must return the Equipment at your expense when due back unless you obtain a customer pick up number from Kennards.
3. Obligations of the customer
The Customer must:
3.1 Deliver the Equipment to Kennards when it is due back;
3.2 Return the Equipment to Kennards clean and in good repair;
3.3 Satisfy itself at Commencement that the Equipment is suitable for its purposes;
3.4 Notify Kennards when the Equipment is available for collection;
3.5 Operate the Equipment safely, strictly in accordance with the law, only for its intended use, and in accordance with any manufacturer’s instructions whether supplied by Kennards or posted on the Equipment;
Note to customer: You MUST advise Kennards if you require any further instruction on the operation and safe use of the Equipment.
3.6 Indemnify Kennards for all injury and/or damage to the extent caused or contributed to by the Customer to persons and property in relation to the Equipment and its operation and have adequate insurance to cover all liabilities incurred as a result of the use of the Equipment;
3.7 Ensure that any person collecting or taking delivery of 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;
3.8 Ensure that all persons operating or erecting the Equipment are suitably instructed in its safe and proper use and where necessary hold a current Certificate of Competency and/or are fully licensed;
3.9 Conduct a thorough hazard and risk assessment before using the Equipment and comply with all Occupational Health and Safety laws relating to the Equipment and its operation;
3.10 Safely secure all items loaded in or on the Equipment or in or on the Customer’s vehicle, or accept responsibility for items loaded and/or secured by Kennards and indemnify Kennards in respect of any injury and/or damage caused by items falling from the Equipment or from any vehicle or trailer operated by or on behalf of the Customer;
3.11 Operate the Equipment with an adequate motor vehicle and/or power source safely in accordance with the manufacturers operating instructions and applicable law;
3.12 Report and provide full details to Kennards of any accident or damage to the Equipment as soon as practicably possible and not more than two business days of the accident or damage occurring;
3.13 Sign any documentation requested by Kennards at such intervals as reasonably stipulated by Kennards, to confirm the Customer’s acceptance of these Hire Contract Conditions.
3.14 Assist and co-operate fully and promptly with Kennards and/or its insurer in the investigation, settlement or defence of any claim or matter relating to a Hire Schedule on which the Customer is named;
3.15 Remain responsible for the care and safekeeping of the Equipment until collected by or delivered back to Kennards.
The Customer must NOT:
3.16 Tamper with, damage or repair the Equipment;
3.17 Lose or part with possession of the Equipment;
3.18 Rely upon any representation relating to the Equipment or its operation other than those contained in this Contract;
3.19 Allow any person to drive a Motor Vehicle if the person:
(a) does not hold a suitable licence to drive that class of Motor Vehicle; or
(b) is affected by drugs and/or alcohol.
3.20 Exceed the recommended or legal load and capacity limits of the Equipment;
3.21 Use or carry any illegal, prohibited or dangerous substance in or on the Equipment.
3.22 Exceed the recommended or legal speed limit for the Equipment.
4. No assignment by customer
5. Payments by the customer to Kennards
5.1 On or before Commencement (or as otherwise specifically agreed in writing with Kennards), the Customer will pay the Hire Charge.
5.2 Immediately on request by Kennards, the Customer will pay:
(a) the new list price of any Equipment which is for whatever reason not returned to Kennards
Note to customer: Subject only to any express provision of this Contract to the contrary, the Customer is responsible for loss or theft of the Equipment
(b) all costs incurred in Excessive Cleaning of the Equipment or the cleaning fee as stipulated on the Hire Schedule;
(c) the full cost of repairing any damage to the Equipment caused or contributed to by the Customer, unless expressly agreed otherwise in this Contract;
(d) GST, any other taxes or duties, and all tolls, fines, penalties, levies or charges payable in respect of this Contract or arising from the Customer’s use of the Equipment;
(e) all costs incurred by Kennards in recovering possession of the Equipment;
(f) a late payment fee calculated daily at 3% per month on all amounts owing by the Customer not paid on time;
(g) the Kilometre Charge;
(h) the cost of fuels and consumables provided by Kennards and not returned by the Customer;
(i) any expenses and legal costs (including commission payable to a commercial agent) incurred by Kennards in enforcing this contract due to the Customers default;
(j) all costs of repairing or replacing tyres, including road service;
(k) if any damage and/or theft waiver applies, the amount for which the Customer is liable as set out in this Contract;
(l) Loading costs when equipment hired with an hour meter is used in excess of eight hours per day;
(m) Hire fees for the period from the commencement of the hire until the Equipment is returned or a customer pick up number is obtained from Kennards; and
(n) All non-recoverable costs incurred by Kennards in the provision of Equipment and/or services due to cancellation or postponement by the Customer.
5.3 Without limiting the ability of Kennards to recover all amounts owing to it, the Customer irrevocably authorises Kennards to charge any amounts owing by the Customer to any credit card or bank account details of which are provided to Kennards.
5.4 Kennards may tokenise the Customer’s credit card or bank account details to facilitate credit card or online payments.
6. Ownership retention of title
8. Damage waiver
8.1 Damage Waiver is not insurance, but is an agreement by Kennards that the Customer’s liability for damage to the Equipment can be limited in some circumstances only, to an amount called the Damage Waiver Excess.
Note to customer: Damage Waiver does NOT cover the costs of recovery of the Equipment, which are always payable by the Customer.
8.2 Subject to the provisions of this Section 8, Damage Waiver applies to each incident occurring in all hires, for no additional fee. The Damage Waiver Excess is the actual repair cost of the Equipment, or 20% of the current replacement cost of the Equipment as reasonably determined by Kennards using supplier’s list prices, whichever is the lesser amount.
DAMAGE WAIVER DOES NOT APPLY AND WILL NOT LIMIT THE CUSTOMER’S
LIABILITY in the following circumstances;
(a) where the Equipment is lost or stolen;
(b) where the operator is not suitably licensed;
(c) where the operator is affected by drugs and/or alcohol;
(d) where the Equipment has been wilfully damaged at any time during the Hire Period;
(e) Where the damage is caused by rolling or detachment while the Equipment is being driven or towed;
(f) where the damage is caused while the Equipment is being driven or towed on any road that is unsealed or is not a public road;
(g) where the damage is caused in any way by overloading;
(h) where the damage is caused by flash flooding or general water damage;
(i) where the damage is caused by a collision with a bridge, carpark, awning, gutter, tree or any other overhead structure or object whatsoever due to insufficient clearance; or
(j) where the damage is caused to a truck pantech or truck crane.
8.3 The Customer may pay an additional Vehicle Waiver Plus Fee (excluding Customers on a restricted licence) in relation to the hire of Motor Vehicles, which for each incident will:
(a) reduce the Damage Waiver Excess in relation to Motor Vehicles and third party damage to property or goods caused by the use of the Motor Vehicle by the Customer;
(b) cover damage to a pantech or van body above cab height; and
(c) add a theft waiver component for Motor Vehicles. The theft waiver component is not insurance, but is an agreement by Kennards that the Customer’s liability for theft or loss of the Motor Vehicle can be limited in some circumstances only to an amount called the Theft Waiver Excess.
Kennards may ask the Customer to pay the Vehicle Waiver Plus Fee on the hire of Motor Vehicles, but the Customer may decide to opt out of that payment.
Credit account customers will have the Vehicle Waiver Plus applied to all relevant hires unless the Customer has declined the Waiver on their credit application or opted out by providing notice to Kennards in writing.
The reduced Damage Waiver Excess and the Theft Waiver Excess apply to Motor Vehicles when the Vehicle Waiver Plus Fee is paid this will be shown on the Hire Schedule and will vary for different classes of vehicles.
8.4 The Customer may pay an additional Equipment Waiver Plus Fee in relation to the hire of medium and large Equipment (being such Equipment as determined by Kennards at the time of hire), which for each incident will;
(a) reduce the Damage Waiver Excess in relation to Equipment; and
(b) add a Theft Waiver component for medium and large machinery. Theft Waiver is not insurance, but is an agreement by Kennards that the Customer’s liability for theft or loss of the Equipment can be limited in somecircumstances only to an amount called the Theft Waiver Excess.
Kennards may ask the Customer to pay the Equipment Waiver Plus Fee on the hire of medium and large Equipment, but the Customer may decide to opt out of that payment.
Credit account customers will have Equipment Waiver Plus applied to all relevant hires unless the Customer has declined the Waiver on their credit application form or have opted out by providing notice to Kennards in writing.
The reduced Damage Waiver Excess and the Theft Waiver Excess which apply to medium and large Equipment when the Equipment Waiver Plus Fee is paid will be shown on the Hire Schedule and will vary for different types of machinery.
8.5 THEFT WAIVER DOES NOT APPLY AND WILL NOT LIMIT THE CUSTOMER’S
LIABILITY FOR THEFT in the following circumstances;
(a) where the Customer has failed to keep the Equipment in a securely locked enclosed area, or in the case of a Motor Vehicle, has failed to properly secure or lock the Motor Vehicle; or
(b) where the Customer has failed to submit to Kennards a Police report on the theft within seven days of the theft allegedly occurring.
In the event of Theft Waiver applying, hire fees will be charged to the Customer until the Police Report is provided to Kennards.
8.6 Damage Waiver will NOT apply where Kennards determines that any applicable exclusion mentioned in this Section 8 applies, including the circumstances in clauses 8.2(a)-(j) or 8.5(a)-(b) respectively, unless the Customer is able to estab- lish otherwise to the reasonable satisfaction of Kennards.
8.7 Equipment Waiver Plus and Vehicle Waiver Plus, including Theft Waiver, will NOT apply where Kennards determines that any applicable exclusion in clauses 8.2(b)-(h) or 8.5(a)-(b) applies.
8.8 A Damage Waiver Excess must be paid by the Customer for each and every separate incident which may occur in any Hire Period, where any Damage Waiver is applicable under this section 8.
8.9 A Theft Waiver Excess must be paid by the Customer for each and every separate incident which may occur in any Hire Period, where any Theft Waiver is applicable under this section 8.
8.10 If any damage is caused by the Customer to any property or goods whatsoever owned by a third party as a result of or during the use of a Kennards Motor Vehicle, and if the Customer has breached any provision of this Contract or if any of the circumstances described in clauses 8.2(a)-(j) have occurred, the Customer will be liable for the full cost of that third party property damage to the extent caused by the Customer. If the Customer has not breached this Contract and none of the circumstances described in clauses 8.2(a)-(j) have occurred, the Customer will be liable for the full cost of the third party property damage to the extent caused by the Customer, or $1,500, whichever is the lesser amount.
9. Exclusion of warranties and liabilities
10. Portable buildings
11. Remote hire
12. Breach of hire contract by customer
14. Equipment data
15. Privacy act 1993
17. Governing law
18. Contactless collection and return