Terms and Conditions

Experience & Expertise
Customer-Centric Service
Reliability & Quality
Fleet includes a wide range
Getting the job done

HIRE TERMS

These Hire Terms, together with any Hire Form (defined in clause 1(a), set out the agreement (this Agreement) under the terms of which you or L H Excavations which you represent (the Customer, you) will rent the Equipment from L H Excavations Pty Ltd ABN 24 603 470 944 (L H Excavations, we, us, our).

1. HIRE FORM, THIS AGREEMENT

These Hire Terms will apply to all the Customer’s dealings with L H Excavations, including being incorporated in all agreements, quotations or orders under which L H Excavations is to rent equipment and if applicable 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).
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 if applicable services provided by L H Excavations after receiving or becoming aware of this Agreement or these Hire Terms.
In the event of any inconsistency between these Hire Terms and any Hire Form, the clauses of these Hire 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 Hire Terms to the extent of any inconsistency.

2. HIRE

L H Excavations provides to the Customer and the Customer accepts from L H Excavations the hire of the Equipment and if applicable services upon and subject to the provisions of this Agreement.

3. PRE HIRE

The Customer warrants that they:

will send a copy of their valid driver’s licence/s within 24 hours of confirming the booking to L H Excavations’ contact email address set out in the Hire Form;
have read and understood any instructional materials provided by L H Excavations;
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
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

4.1 Use

The Customer must ensure that the Equipment is only used:
- on the Job Site;
- for the Purpose (if applicable);
- in a proper and skilful manner, by Personnel who are appropriately trained, licensed, certified and competent;
- in accordance with the Equipment manufacturer’s requirements, recommendations and instructional materials provided to the Customer; and
- in accordance with all Laws, rules and regulations applicable to the Equipment and its use and/or relating to the Job Site.
The Customer must not, and must not allow any Personnel or third party to:
- tow trailered Equipment with an unsuitable or unroadworthy Equipment or on unsealed roads;
- tow trailered Equipment, if the driver is not the holder of a valid driver licence;
- use the Equipment for any dangerous or illegal purpose;
- use or allow the Equipment to be used to carry passengers for payment of any kind and/or for racing;
- make any alterations to the Equipment, including by unauthorised repair;
- use or allow the Equipment to be used while the operator is under the influence of alcohol or drugs;
- use the Equipment when it is damaged or unsafe;
- 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 L H Excavations’ prior written consent;
- sub-hire the Equipment; and
- use the Equipment for the conveyance or towing of any load.

4.2 Maintenance

The Customer must, when the Equipment is unattended, always keep it locked and keep the keys under their control.
If the Customer requires maintenance of the Equipment, the Customer must contact L H Excavations using the details set out in the Hire Form.
Maintenance for the Equipment will be provided by L H Excavations within a reasonable time as determined by L H Excavations.
If instructed by L H Excavations, the Customer must cover the Equipment with waterproof material in wet weather conditions.

4.3 Operator

The Customer agrees that they are responsible for the acts and omissions of any other person they allow to use the Equipment.

4.4 Fuel

The Customer must:

ensure that the Machine has a full tank of fuel when it is returned to L H Excavations, unless specified otherwise in the Hire Form;
only fill the Equipment with fuel of a type that meets the Machine’s specifications; and
promptly pay to L H Excavations the costs of refuelling the Machine, at the Fuel Rate for each litre of fuel required to refill the Machine’s tank, if the Customer fails to comply with clause 4.4(a) at the Fuel Refill Rate.

4.5 Personal Property

L H Excavations 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 L H Excavations or stolen from the Equipment or otherwise lost during the Hire Term.

4.6 Cleaning

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 cleaning fee covering the total cost to L H Excavations to clean the Equipment will apply.

5. RETURN

Unless the Services include return of the Equipment by L H Excavations, and subject to clause 15, the Customer must on the Return Date and by the Return Time specified in the Hire Form, return the Equipment to L H Excavations at the Return Address in the same condition as it was in on the Start Date.
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. OFF HIRE

This clause only applies to Equipment for which off hire discount rates apply, as set out in the Hire Form. For Equipment this clause 6 applies to, L H Excavations will apply the off hire discount rate set out in the Hire Form in respect of that Equipment and for a particular date, subject to the following:

the Equipment not being subject to a rent to buy arrangement; and
L H Excavations receiving a written notice from the Customer before 9AM on the relevant date, requesting an off hire rate on one of the following grounds:
- wet weather conditions;
- the date being a public holiday; or
- the date being a rostered day off.

L H Excavations will determine in its reasonable discretion whether any of these grounds apply.

7. REMOTE HIRE

Where the Customer hires Equipment and/or the Services are to be provided in a Remote Site, the Customer will pay the Remote Area Charges specified in the Hire Form.

8. FAULTY EQUIPMENT

If the Equipment is faulty, breaks down or becomes unsafe to use during the Hire Term (Breakdown), the Customer must immediately:
- notify L H Excavations;
- stop using the Equipment;
- take all steps necessary to prevent injuries from occurring to any person or property as a result of the condition of the Equipment;
- take all steps necessary to prevent the Equipment from sustaining any further damage;
- not repair or attempt to repair the Equipment without L H Excavations’ written consent; and
- comply with L H Excavations’ directions in relation to the return of the Equipment.
Subject to clause 8(c), if, upon inspection of the Equipment, L H Excavations determines that a Breakdown was:
- caused by a fault in the Equipment (not caused or contributed to by the Customer) (Equipment Fault) then L H Excavations will provide the Customer with a pro-rata refund of any Fees paid for the period of the Hire Term during which the Breakdown persisted; or
- not caused by an Equipment Fault, then the Customer will still be required to pay Fees in accordance with the Hire Form.
Clause 8(b) does not limit:
- any of the Customer’s rights under the Competition and Consumer Act 2010 (Cth); or
- any rights or remedies L H Excavations may have access to in relation to a Breakdown, under this Agreement or otherwise.

9. REPLACEMENT, LOSS AND DAMAGE

9.1 Loss, damage and personal injury

The Customer will be fully liable to L H Excavations for:

any loss or damage to the Equipment during the Hire Term, or otherwise when the Equipment is in the Customer’s possession, and must give reasonable notice to L H Excavations in writing of any such loss or damage; and
all damage to the property of any person which is caused or contributed to by the Equipment during the Hire Term, or otherwise when the Equipment is in the Customer’s possession.

9.2 Replacement

If L H Excavations notifies the Customer in writing, the Customer must replace all parts of the Equipment which during the Hire 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.

10. INCIDENTS AND INSURANCE

10.1 Insurance

The Customer acknowledges that L H Excavations may, in its discretion, hold insurances in relation to the Equipment but such insurances may not cover the Customer or the Customer’s use of the Equipment and L H Excavations 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.
If L H Excavations notifies the Customer that it holds insurance in relation to the Equipment, the Customer must not do or permit anything to be done which may make L H Excavations’ insurance invalid or able to be cancelled or which may increase L H Excavations’ insurance premiums.
L H Excavations reserves the right to apply any insurance policy it does hold in respect of the Equipment during the Hire Term, to damage or loss caused or contributed to by the Customer, however L H Excavations is under no obligation to. If L H Excavations chooses to make a claim under an applicable insurance policy in accordance with this clause in respect of any damage or loss during the Hire Term, the Customer will be required to pay any excess payable by L H Excavations in respect of such a claim.

10.2 Incidents, Loss and Damage

Subject to any L H Excavations insurance policy that covers the Customer, which L H Excavations has indicated in writing that it will claim against to cover the Customer, if the Equipment is lost, damaged, destroyed or stolen during the Hire Term, or otherwise while the Equipment is in the Customer’s possession, the Customer must compensate L H Excavations for any costs of repair or replacement.
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 Hire Term, or otherwise when the Equipment is in the Customer’s possession (Incident), the Customer:
- must promptly report the Incident to the local police (if required by Law);
- must report the Incident to L H Excavations in writing within one Business Day;
- must, if such damage, destruction or theft is covered by and compensated to L H Excavations under an insurance policy, pay the relevant excess amount to L H Excavations, as well as any other reasonable costs that L H Excavations incurs in relation to such damage, destruction or theft;
- must not, without L H Excavations’ 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;
- must, if requested, permit L H Excavations or its insurer bring, defend, enforce or settle any legal proceedings in the Customer’s name in relation to the Incident; and
- must, if requested, provide to L H Excavations, within a reasonable time, any statement, information or assistance which L H Excavations or its insurer requests, including by attending a lawyer’s office or a court to give evidence.

11. INCIDENTS, LOSS AND DAMAGE

Subject to any L H Excavations insurance policy that covers the Customer, which L H Excavations has indicated in writing that it will claim against to cover the Customer or if the Equipment is lost, damaged, destroyed or stolen during the Hire Term, or otherwise while the Equipment is in the Customer’s possession, the Customer must compensate L H Excavations for any costs of repair or replacement.
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 Hire Term, or otherwise when the Equipment is in the Customer’s possession (Incident), the Customer:
- must promptly report the Incident to the local police (if required by Law);
- must report the Incident to L H Excavations in writing within one Business Day;
- must, if such damage, destruction or theft is covered by and compensated to L H Excavations under an insurance policy, pay the relevant excess amount to L H Excavations, as well as any other reasonable costs that L H Excavations incurs in relation to such damage, destruction or theft;
- must not, without L H Excavations’ 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;
- must, if requested, permit L H Excavations or its insurer bring, defend, enforce or settle any legal proceedings in the Customer’s name in relation to the Incident; and
- must, if requested, provide to L H Excavations, within a reasonable time, any statement, information or assistance which L H Excavations or its insurer requests, including by attending a lawyer’s office or a court to give evidence.

12. PAYMENT

12.1 FEES

The Customer must pay the Fees to L H Excavations in the amounts set out in the Hire Form or as otherwise agreed in writing.

12.2 TIME FOR PAYMENT

Unless otherwise agreed in writing or in a Hire Form:

the Customer must pay for all Equipment on or before the Start Date; and
if L H Excavations issues an invoice to the Customer, payment must be made by the time(s) specified in such invoice.

12.3 PAYMENT METHOD

The Customer must pay Fees using the payment method specified in the Hire Form.

12.4 LATE PAYMENT

If the Customer does not pay L H Excavations the amounts due and payable under an invoice on or before its due date, without limiting any of L H Excavations’ other rights under this Agreement, the Customer must pay L H Excavations interest at the rate of 2% per annum on each amount outstanding, from the due date for payment to the date on which the payment is received by L H Excavations.

12.5 GST

Unless otherwise indicated, amounts stated in a Hire Form do not include GST. In relation to any GST payable for a taxable supply by L H Excavations, the Customer must promptly pay the GST subject to L H Excavations providing a tax invoice.

12.6 CARD SURCHARGES

L H Excavations reserves the right to charge credit card surcharges in the event payments are made using a credit, debit or charge card (including Visa, MasterCard or American Express).

12.7 PAYMENTS OTHER THAN FEES

Immediately on request by L H Excavations, the Customer will pay:
- the price of any Equipment which is for whatever reason not returned to L H Excavations;
- the full cost of repairing any damage to the Equipment caused or contributed to by the Customer;
- all costs incurred by L H Excavations in delivering and recovering possession of the Equipment; and
- any expenses and legal costs (including commission payable to a commercial agent) incurred by L H Excavations in enforcing this Agreement due to the Customers default.
Without limiting the ability of L H Excavations to recover all amounts owing to it, the Customer authorises L H Excavations to charge any amounts owing by the Customer to any credit card or account which the Customer provides in a Hire Form.

13. OWNERSHIP, POSSESSION AND TITLE

13.1 Ownership

The Equipment is and will at all times remain the property of L H Excavations, notwithstanding delivery of the Equipment to the Customer or the possession and use of the Equipment by the Customer.
The Customer will not have any right, title or interest in or to the Equipment except as expressly set out in this Agreement.

13.2 Possession

The Customer must not, without L H Excavations’ prior written consent, part with possession of the Equipment during the Hire Term.

13.3 Encumbrances

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:

if a repairer’s lien arises, the Customer must take all necessary steps to have it removed or satisfied, or, at L H Excavations’ option, L H Excavations may remove or satisfy the lien at the Customer’s cost; and
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.

14. EARLY RETURN

Notwithstanding any other clause in this Agreement, L H Excavations may demand the early return of the Equipment to the Return Address, or retake possession of the Equipment, if L H Excavations reasonably suspects that:

damage to the Equipment or injury to any person in connection with the Equipment is reasonably likely; or
the Equipment may be used for an unlawful purpose.

15. THIRD PARTY GOODS AND SERVICES

If L H Excavations 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’).
The Customer agrees to any Third Party Terms applicable to any goods or services supplied by a third party that the Customer or L H Excavations acquires as part of renting the Equipment and L H Excavations will not be liable for any loss or damage suffered by the Customer in connection with such Third Party Terms.

16) SUBCONTRACTING

L H Excavations may subcontract any aspect of providing the Services and the Customer hereby consents to such subcontracting.

17. LIABILITY, WARRANTIES AND INDEMNITIES

17.1 LIABILITY

To the maximum extent permitted by Law, L H Excavations’ 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:

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
is limited, insofar as it concerns other liability, to the total money paid to L H Excavations 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).

17.2 WARRANTIES

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 L H Excavations 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.
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.
Nothing in this Agreement is intended to limit the operation of the Australian Consumer Law contained in the Competition and Consumer Act 2010 (Cth) (ACL). Under the ACL, the Customer may be entitled to certain remedies (like a refund, replacement or repair) if there is a failure with the goods or services provided.

17.3 INDEMNITIES

The Customer indemnifies L H Excavations from and against all losses, claims, expenses, damages and liabilities (including any taxes, fees or costs) which arise out of:

the casual maintenance, use, storage or operation of the Equipment during the Hire Term or otherwise when the Equipment is in the Customer’s possession;
injuries to or deaths of persons and damage to property in connection with the Equipment during the Hire Term or otherwise when the Equipment is in the Customer’s possession;
any breach of this Agreement by the Customer; or
any negligent, fraudulent or criminal act or omission of the Customer or its Personnel.

18. TERMINATION.

18.1 TERMINATION BY L H EXCAVATIONS

L H Excavations 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.

18.2 TERMINATION BY THE CUSTOMER

The Customer may terminate this Agreement in whole or in part by written notice to L H Excavations.
If the notice under clause 19.2(a) is:
- 48 hours or more prior to the Start Date, L H Excavations will provide the Customer with a full refund of any Fees paid;
- Less than 48 hours prior to the Start Date, L H Excavations will provide the Customer with a full refund of the Fees paid, minus a 20% cancellation fee.
- after the Start Date, the Customer will not be entitled to any refund, unless the Equipment is not of an acceptable quality in accordance with the ACL.

18.3 EFFECT OF TERMINATION

Upon termination of this Agreement, the Customer must promptly:

pay any payments required by L H Excavations in respect of the period of the Hire Term prior to the date of termination; and
subject to any contrary direction given by L H Excavations, deliver the Equipment and any other goods included in a Hire Form to the Return Address.

18.4 SURVIVAL

Any clause that by its nature would reasonably be expected to be performed after the termination or expiry of this Agreement will survive and be enforceable after such termination or expiry.

19. DISPUTE RESOLUTION

A party claiming that a dispute has arisen under or in connection with this Agreement must not commence court proceedings arising from or relating to the dispute, other than a claim for urgent interlocutory relief, unless that party has complied with the requirements of this clause.
A party that requires resolution of a dispute which arises under or in connection with this Agreement must give the other party or parties to the dispute written notice containing reasonable details of the dispute and requiring its resolution under this clause.
Once the dispute notice has been given, each party to the dispute must then use its best efforts to resolve the dispute in good faith. If the dispute is not resolved within a period of 14 days (or such other period as agreed by the parties in writing) after the date of the notice, any party to the dispute may take legal proceedings to resolve the dispute.

20. NOTICES

A notice or other communication to a party under this Agreement must be:
- in writing and in English; and
- delivered via email to the other party, to the email address specified in this Agreement, or if no email address is specified in this Agreement, then the email address most regularly used by the parties to correspond regarding the subject matter of this Agreement as at the date of this Agreement (Email Address). The parties may update their Email Address by notice to the other party.
Unless the party sending the notice knows or reasonably ought to suspect that an email was not delivered to the other party’s Email Address, notice will be taken to be given:
- 24 hours after the email was sent, unless that falls on a Saturday, Sunday or a public holiday in the state or territory whose laws govern this Agreement, in which case the notice will be taken to be given on the next occurring Business Day in that state; or
- when replied to by the other party, whichever is earlier.

21. GENERAL

21.1 GOVERNING LAW AND JURISDICTION

This Agreement is governed by the law applying in New South Wales, Australia. Each party irrevocably submits to the exclusive jurisdiction of the courts of New South Wales, 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.

21.2 AMENDMENTS

This Agreement may only be amended in accordance with a written agreement between the parties.

21.3 WAIVER

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.

21.4 SEVERANCE

Any term of this Agreement which is wholly or partially void or unenforceable is severed to the extent that it is void or unenforceable. The validity and enforceability of the remainder of this Agreement is not limited or otherwise affected.

21.5 JOINT AND SEVERAL LIABILITY

An obligation or a liability assumed by, or a right conferred on, two or more persons binds or benefits them jointly and severally.

21.6 ASSIGNMENT

A party cannot assign, novate or otherwise transfer any of its rights or obligations under this Agreement without the prior written consent of the other party.

21.7 COUNTERPARTS

This Agreement may be executed in any number of counterparts. Each counterpart constitutes an original of this Agreement and all together constitute one agreement.

21.8 COSTS

Except as otherwise provided in this Agreement, each party must pay its own costs and expenses in connection with negotiating, preparing, executing and performing this Agreement.

21.9 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.

21.10 INTERPRETATION

(singular and plural) words in the singular includes the plural (and vice versa);
(currency) a reference to $; or “dollar” is to Australian currency;
(gender) words indicating a gender includes the corresponding words of any other gender;
(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;
(person) a reference to “person” or “you” 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;
(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;
(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;
(document) a reference to a document (including this Agreement) is to that document as varied, novated, ratified or replaced from time to time;
(headings) headings and words in bold type are for convenience only and do not affect interpretation;
(includes) the word “includes” and similar words in any form is not a word of limitation; and
(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.

22. DEFINITIONS

In addition to capitalised terms defined in the Hire Form above, capitalised terms used in this Agreement will have the following meanings:

Term	Meaning
Business Days	means a day (other than a Saturday, Sunday or any other day which is a public holiday) on which banks are open for general business in New South Wales, Australia.
Customer	has the meaning set out in the Hire Form.
Equipment	means the Machine and the Included Attachments included in a Hire Form.
Fees	has the meaning set out in the Hire Form.
Hire Form	has the meaning set out in clause 1(a) of these Hire Terms.
Hire Term	means the period of Equipment Hire, from the Start Date set out in the Hire Form until the Equipment is returned to L H Excavations.
Job Site	means the job site specified in the Hire Form.
Late Charge	means the late charge set out in the Hire Form.
Laws	mean any applicable statute, regulation, by-law, ordinance or subordinate legislation in force from time to time in the relevant jurisdiction(s) where the Services are provided and includes any industry codes of conduct.
Machine	has the meaning set out in the Hire Form.
Personnel	means, in respect of a party, that party’s officers, employees, contractors (including subcontractors) and agents.
Remote Site	means a Job Site located [30] or more kilometres from the Address.
Return Address	means the return address set out in the Hire Form.
Return Date	has the meaning set out in the Hire Form.
Services	means the Services listed in the Hire Form to be provided to the Customer by L H Excavations.
Start Date	has the meaning set out in the Hire Form.
Third Party Terms	has the meaning set out in clause 16.