APPLICATION TO OPEN A CREDIT ACCOUNT

Chadwick Forklifts P/L Hire/Rental/Service Agreement and Account Terms and Conditions

1. DEFINITIONS

• Owner / Company is Chadwick Forklifts Pty Ltd (ABN 17452094716)
• Customer refers to the person, firm or corporation hiring the equipment from the Owner.
• Equipment means all items as listed in the Hire/Rental Agreement including accessories, parts and attachments supplied to and being hired by the Customer.
• The Hire/Rental Agreement can be Casual term/period meaning a term/period with no fixed termination date or a term with a fixed termination date.
• Usage means the total hours or kilometres of use for which the hire rates have been calculated.

2. TERMS OF PAYMENT AND CHARGES

• Hire is charged from the time the equipment is out of the possession of the Owner.
• The Customer is bound by all of the Owners Terms and Conditions during the term/period of hire and until the equipment has arrived at the Owners premises for final inspection.
• Where applicable, the Customer is responsible for transportation charges, tollway charges and any expense applicable to the Owner in delivering or picking up the equipment.
• Where the Owner is responsible for delivery and/or pick up of the equipment, the Customer shall be liable for any additional charges incurred by the Owner or its servant(s) for locating the equipment and/or waiting for the equipment to be made available and it will not be responsible for any delays or failure to deliver due to causes beyond its control.
• Payment in full for any hiring charges and other amounts payable is required in accordance with the Owner’s trading terms as stated on the Hire/Rental Agreement.
• The Customer is responsible for all reasonable expenses including contingent expenses such as debt collection, commissions and legal costs (on a full indemnity basis) incurred by the Owner for enforcement of obligations and recovery of monies due from the customer to the Owner.
• The Owner reserves the right to recover the equipment from the Customer, and invoke penalty when there is:
  • Continual breach of the trading terms and conditions of the Owner.
  • Excessive damage or undue wear and tear.
  • Continual misuse, abuse or negligent use of the equipment.
  • Any circumstance arising that may adversely affect the Owner and its rights under the provisions of these terms and conditions.
  • The Customer having a wind-up petition presented against it, or be wound up, or go into voluntary liquidation, or commit an act of bankruptcy, or if a receiver of its assets or any of them is appointed or if it makes an assignment or compromise for the benefit of its creditors or if its business is placed under official management or if it ceases to carry on business.
• If requested by the Owner, the Customer agrees to make Hire payments monthly in advance to the Owners Bank Account via direct bank debit.
• In some instances, an insurance recovery charge is applicable to Chadwick Forklifts Pty Ltd Hire Agreements. The Owners insurance recovery charge does not provide insurance to the Customer and will not limit the Customers’ responsibility to provide insurance cover over the equipment whilst out of the possession of the Owner.

3. SERVICING AND BREAKDOWNS

• Unless otherwise stated, this Agreement covers all servicing, maintenance and breakdowns except where caused by misuse, abuse, negligence, undue wear and tear, use of the equipment beyond its capacity, use of the equipment for a purpose for which it was not designed, use of the equipment for a purpose not intended or agreed to by the Owner or use of the equipment in an environment not agreed to by the Owner.
• Where the Customer has elected to use pneumatic tyres over solid puncture proof tyres, the Customer shall be responsible for any repairs due to blowouts and punctures.
• The Owners’ normal hours of service are 7.30am – 4.30pm Monday – Friday excluding public holidays. An after-hours service is available at a minimum 4-hour call out fee charged at the Owners current hourly labour rate plus parts and other expenses that may be applicable. The Owner reserves the right to use contracted labour where deemed appropriate or applicable in relation to carrying out service and repair work to the equipment.
• The Customer agrees to make the equipment immediately available to the Owner or its servant(s) for the purpose of conducting service or repairs as required.
• Where the Customer’s site makes it difficult to locate equipment for service and/or repair, the Owner may request that all repairs and services be conducted in a predesignated area agreed to by the Customer. The Customer shall be responsible for ensuring the equipment is available in the designated area, and except where the equipment cannot be mobilized, be liable for any lost time incurred by the Owner or its servant(s) for locating the equipment or waiting for the equipment to become available.
• Unless otherwise agreed to, replacement tyres are not included in the Hire Agreement.
• In the event of a breakdown, the Customer must notify the Owner immediately. Such notification does not release the Customer from its responsibility to safeguard the equipment.
• The Customer must not attempt to repair the equipment without the consent of the Owner.
• If the equipment breaks down or becomes unsafe, the Customer must stop using the equipment immediately and take all necessary steps to prevent injury to any persons or property and secure the equipment from theft or vandalism, disconnect the battery and remove the key to avoid unauthorised use.
• Failure to perform daily checks will result in the Customer being liable for any costs to make good the equipment if found to be caused from failure by the Customer to perform daily maintenance checks.
• The Owner shall not be responsible for any injury, expenditure, and damage to property; loss of property or any inconvenience incurred by the Customer whatsoever arising from any breakdown or failure of the equipment.
• Repairs required that are caused by misuse, abuse, negligence, undue wear and tear, use of the equipment beyond its capacity, use of the equipment for a purpose for which it was not designed, use of the equipment for a purpose not intended nor agreed to by the Owner, use of the equipment in an environment not intended nor agreed to by the Owner, will be charged to the Customer at the Owners current hourly labour rate plus parts and other expenses incurred in making good the equipment.

4. CUSTOMER OBLIGATIONS.

• Prior to use of the equipment determine its suitability for the purpose intended.
• Use the equipment in a skilful and proper manner and only for the purpose as described in writing on the Hire/Rental Agreement by the Customer at the time of Hire.
• Use the equipment within the capacity purpose for which it was designed acknowledging that the Owner cannot warrant any capacity implied or shown on the equipment.
• Ensure a suitably certified or licensed operator operates the equipment at all times.
• Ensure that all operators are trained in the daily check procedure of the equipment.
• Ensure that all operators of the equipment perform daily checks in accordance with the manufacturer’s manual and/or as stated on any signage fixed to the equipment the Owner. Failure to perform daily checks will result in the Customer being liable for any costs to make good the equipment if found to have been caused by failure to perform daily maintenance checks.
• In the case of electric powered equipment fitted with traction batteries, ensure that each cell is maintained in accordance with the manufacturer’s recommendations ensuring the battery is not over/under filled and that the top of the battery is kept clean at all times.
• Charge traction batteries in accordance with the recommendations of the Owner and/or Manufacturer of the battery acknowledging that improper charging procedures will cause damage to the battery for which the customer will be liable.
• Attach to the equipment and maintain any safety signs supplied with the equipment and bring them to the attention of any person using the equipment ensuring that they are clearly legible at all times.
• Ensure that all safety and operating instructions and notices are observed by the operator and not defaced or removed.
• Ensure that all operators of the equipment wear suitable clothing and protective equipment (where applicable) as recommended by the manufacturer or the Owner.
• Keep the equipment clean and free from chemicals and excessive dust or any substances that may cause corrosion and/or affect the performance or appearance of the equipment.
• Accept full responsibility for flat or damaged tyres and/or wheels, bent or broken load guards, damage to fork tynes, broken lights and indicator lenses, damage to any other accessories or attachments fitted to the equipment including and not limited to damage to the chassis.
• Clean the equipment thoroughly on completion of the Hire. The Owner will charge an additional fee for cleaning if the unit is returned in a state not equal to the state that it was delivered to the Customer.
• Accept full responsibility for ensuring the equipment and it’s safe-keeping and indemnify the Owner against all loss, theft or damage to the equipment however caused and without limiting the generality of the foregoing whether or not such loss, theft or damage is attributable to any negligence, failure or omission of the Customer.
• Accept full responsibility and indemnify the Owner against all claims in respect to injury to persons or loss or damage to property arising out of the delivery, servicing, storage, possession or use of the equipment during the Hire period however arising whether from negligence of the Customer or the Owner or otherwise without limiting the generality of the foregoing whether or not the equipment was being operated by a servant(s) of the Owner or any other person for whose acts the Owner might be or is held to be responsible in connection with the operation of the equipment.
• Not be entitled to claim any lien over the equipment nor sell, transfer, mortgage, charge or encumber in any way the equipment nor, without the Owners express written consent, part with the possession of the equipment nor assign the benefit of the Hire Agreement.
• Not be entitled to move the equipment from the site from which it was Hired and delivered without express written approval from the Owner.
• Not alter, make any addition to, deface or erase any identifying mark, plate or number on or in the equipment or in any other manner that would interfere with the equipment.
• On request of the Owner supply written evidence of current plant and equipment insurance covering the equipment being hired from the Owner, indemnifying the Owner against all claims in respect to injury to persons, loss or damage to property arising out of the delivery, servicing, storage, possession or use of the equipment during the Hire period however arising whether from negligence of the Customer or the Owner or otherwise without limiting the generality of the foregoing whether or not the equipment was being operated by a servant(s) of the Owner or any other person for whose acts the Owner might be or is held to be responsible in connection with the operation of the equipment.
• Comply with all environmental laws and immediately rectify any breach of an environmental law caused by the use of the equipment. The Customer indemnifies and agrees to keep indemnified the Owner against any loss, cost, damage or expense arising from the use of the equipment in breach of any environmental law.
• Allow the Owner immediate access to inspect and/or service and repair the equipment during the Hire period and permit or procure admission for the representatives of the Owner to the premises upon which the equipment is situated for that purpose and make available an area for the Owner or its servant(s) that is safe, away from other mobile plant and under cover in the case of inclement weather.
• Promptly pay any fines, penalties and other chargers, including cost for providing registered equipment, arising out of the use of the equipment and must reimburse the Owner where the Owner has made such payment.
• Supply a written purchase order stating all the details of the Customer including ABN, delivery, site contact for service and invoicing details.
• Honour all fixed term service agreements for the duration of the signed/contractual term. Any breach/default of this by the customer within the duration of the signed/contractual term will render the customer liable for full payment (upon invoice and within 7 days) for the sales value of all remaining services (PMPs) uncompleted from the date of breach/cancellation until the end of the signed/contractual term.

5. TERMINATION OF HIRE

• This agreement will remain in effect for the entire agreed term/period of Hire and may not be terminated by the Customer until the term/period of Hire has expired.
• The Owner shall have the right to terminate the Hire Agreement in the event of continual breach of the Owners trading terms and conditions.
• Without prejudice to any other remedies available to the Owner, the Owner may terminate this Hire Agreement:
  • At any time giving the Customer 24 hours’ notice of its intention to so terminate. Such termination to be effective as of the expiry of 24 hours or as agreed under the Hire contract.
  • Without notice, if the Customer shall commit any breach of the Hire Agreement or, do or permit to be done any act or thing whereby the Owners rights in or to the equipment may be prejudiced, or have a wind up petition presented against it, or be wound up, or go into voluntary liquidation, or commit an act of bankruptcy, or if a receiver of its assets or any of them is appointed or if it makes an assignment or compromise for the benefit of its creditors or if its business is placed under official management or if it ceases to carry on business.
• Upon termination of this Hire Agreement the Owner shall be entitled to take possession of the equipment and for this purpose, the Customer irrevocably appoints the Owner as its agent and authorises the Owner to enter on any land or premises owned by or under the control of the Customer upon which the equipment is then situated and agrees to indemnify the Owner in respect of any claims, damages and expenses arising out of any action taken under this condition.

6. EXCLUSION OF CONDITIONS OR WARRANTIES

• To the full extent permitted by law the Owner excludes all implied terms and conditions and warranties including, without limitation, terms, conditions and warranties implied by Commonwealth and State Legislation.

7. EXCLUSION OF LIABILITY

• The Owner and the Customer agree that in the event of the Customer suffering any loss, damage or claim howsoever as a result of hiring the equipment, including without limitation in respect of delay or inconvenience arising out of any breakdown, failure or defect in the equipment, the liability of the Owner is limited to the repair or replacement of the equipment and is not to include any economic or consequential damages of any nature whatsoever.

8. MISCELLANEOUS

• The person signing/enacting the Hire/Rental Agreement for and on behalf of the Customer hereby covenants with the Owner that he or she has the authority of the Customer to make this Agreement on the Customers behalf and is empowered by the Customer to bind the Customer to the Agreement and hereby indemnifies the Owner against any losses and costs incurred by the Owner arising out of a person so signing this Agreement not in fact having such power or authority.
• Termination of the Agreement will not affect any of the conditions that are expressed or implied to operate or have affect after termination.
• Time is to be the essence of all obligations of the Customer in these conditions.
• If any of the conditions of Hire/Rental Agreement are found to be void, voidable or unenforceable the validity and enforceability of the remaining provisions shall not in any way be affected or impaired.
• The laws of the state in Victoria govern this Agreement