In these terms and conditions:
“Commencement Date” means the commencement date specified on the Order Form.
“Customer” means the party specified on the Order Form.
“Equipment” means the equipment specified on the Order Form.
“Hire Fee” means the fee payable for the hire of the Equipment as specified on the Order Form.
“Hire Period” means the period from the Commencement Date to the Termination Date.
“Order Form” means SOS’s order form or other documentation used by the parties to record the Customer’s order with SOS for the hire of the Equipment.
“Site” means the place referred to on the Order Form provided by the Customer for the purposes of the hire.
“SOS” means SOS Excavations Pty Limited ACN 105 060 311.
“Termination Date” means the later of the termination date specified on the Order Form and the date of termination of the hire of the Equipment.
2.1 SOS agrees to hire the Equipment to the Customer for the duration of the Hire Period. In doing so, SOS will:
- (a) deliver the Equipment to the Site on the Commencement Date in clean and good working order;
- (b) service the Equipment during the Hire Period;
- (c) repair and replace the Equipment if it fails to operate properly; and
- (d) collect the Equipment from the Site on the Termination Date or upon the termination of the hire of the Equipment, which is the earlier.
2.2 Where the Equipment is being hired to the Customer as a wet hire, SOS will also provide the Customer with personnel to operate the Equipment during the Hire Period.
- 3.1 In consideration for the hire of the Equipment, the Customer agrees to pay the Hire Fee to SOS.
- 3.2 The payment of the Hire Fee is due and payable on the terms set out in SOS’s tax invoice.
- 3.3 All payments of the Hire Fee by the Customer must be made free of deductions, set-off or counter claim.
- 3.4 If the Customer fails to pay for the Hire Fee within the time for payment:
- (a) the Customer must pay interest to SOS from the due date until the date of payment calculated on a daily basis from the due date until the date of payment at the rate of 10% per annum, capitalised monthly; and
- (b) SOS may recover all collection costs and expenses incurred in collecting overdue payments.
- 3.5 The parties acknowledge that the Building and Construction Industry Security of Payment Act 1999 (NSW) applies to the hire of the Equipment.
4. FITNESS FOR PURPOSE
The Customer acknowledges that SOS makes no warranty that the Equipment will be fit for the Customer’s purpose and the Customer must satisfy itself that the Equipment is suitable for the Customer’s intended purpose.
The Customer assumes all risks and liability for the use, operation, maintenance, servicing and repair of the Equipment, except to the extent that such liability is caused or contributed to by the wrongful or negligent acts or omissions of SOS.
Title to the Equipment will remain the absolute property of SOS and nothing contained in these terms and conditions will confer on the Customer any right, property or interest in the Equipment other than as hirer.
The Customer must take out and maintain at all times during the Hire Period public and product liability insurance covering legal liability in respect of injury to person or property on the Site for an amount of not less than $20,000,000 arising out of any one single accident or event.
The Customer indemnifies SOS against all claims, losses and liabilities arising out of or in connection with:
- (a) the failure of the Customer to perform any of its obligations under these terms and conditions;
- (b) personal injury caused to persons in relation to the hire of the Equipment;
- (c) loss of or damage to any property in relation to the hire of the Equipment; or
- (d) loss of or damage to the Equipment,
except to the extent that such claims, losses or liabilities are caused or contributed to by the wrongful or negligent acts or omissions of the Customer.
9. LIMITATION OF LIABILITY
- 9.1 SOS’s liability is limited to:
- (a) for goods:
- (1) the cost of replacing the goods;
- (2) the cost of obtaining equivalent goods; or
- (3) the cost of having the goods repaired,
- (a) for goods:
whichever is the lowest; and
- (b) for services, the cost of the provision of those services.
- 9.2 The limitation of SOS’s liability described in clause 9.1 does not apply where the Customer establishes that it is not fair or reasonable for SOS’s liability to be limited in this way. Under these circumstances, SOS’s liability is limited to the maximum amount that is recovered under SOS’s public liability or product liability insurance policies.
- 9.3 Notwithstanding any other provision of these terms and conditions, neither party is liable for economic, special, indirect or consequential loss, including but not limited to loss of profits, loss of revenue, loss of business opportunities, loss of anticipated savings and damage to goodwill.
10. GOVERNING LAW
These terms and conditions are governed by the law of New South Wales and the Customer and SOS irrevocably submit to the exclusive jurisdiction of New South Wales.
Should any part of these terms and conditions be held to be void or unlawful, these terms and conditions are to be read and enforced as if the unlawful provisions have been deleted.
If any of these terms and conditions is inconsistent with any other document involving the parties, including any purchase order of the Customer to SOS, these terms and conditions will prevail.