Rental Agreement

Do It Daddy
Hire Agreement - Terms and Conditions

1. Hire of Goods and Hire Fees
(a) We agree to hire the Goods to You for the Term and You agree to pay the Hire Fees, on the terms and conditions set out in this agreement.
(b) At any time during the Term, You may request to extend the Term. Subject to payment of any additional Hire Fees by You, You acknowledge and agree that such extension is subject to the availability of the Goods and We may approve or reject such request in Our sole and absolute discretion.
(c) If You fail to pay any amount owing to Us by the relevant due date, We may:
(i) terminate this agreement;
(ii) charge interest on any outstanding amount at the rate of 10% per annum, calculated daily and compounded monthly; and/or
(iii) retake possession of the Goods.
(d) If we charge a bond or security deposit in relation to the Goods:
(i) payment of the bond or security deposit is due at the time of booking and in any event, prior to delivery of the Goods to You;
(ii) We reserve the right to retain part or all of any bond or security deposit on account of:
(A) any unpaid Hire Fees payable by You;
(B) any repairs to, or replacement of, the Goods that are incurred as a result of Your use of the Goods; or
(C) any other loss or damage suffered by Us as a result of Your use of the Goods.
(D) refuelling of equipment if returned without a full tank
(iii) Subject to clause 1(d)(ii), the balance of any bond or security deposit will be refunded to you within 48 hours of the Goods being returned to Us.

2. Delivery and return of Goods
(a) Unless agreed otherwise, the delivery and pick up location of the Goods shall be the same location.
(b) Upon delivery of the Goods to You, we will provide you with a list of items provided with the Goods. You are responsible for checking that the Goods and all other parts supplied with the Goods are consistent with what has been disclosed on the item list and You must notify Us immediately if You believe that any items are missing.
(c) At the time of delivery of the Goods, We will request that you confirm receipt of the Goods and We will take a photo of the Goods at the delivery location. By signing the receipt of Goods, You are confirming that:
(i) the Goods have been received by You at the agreed delivery location;
(ii) the Goods are in proper working order, free from any damage; and
(iii) You have read and understood the safety and operating manuals in respect of the Goods.
(d) You acknowledge and agree that any delivery times are approximate only and We will use reasonable endeavours to deliver the Goods to You within 1 hour before or after any agreed delivery time. We shall not be liable to You for any loss or damage suffered by You as a result of any delay in delivery of the Goods.
(e) If, at the end of the Term, the Goods are not returned or available at the agreed location to be picked up by Us:
(i) you will be liable for additional Hire Fees until such time as the Goods are returned or pick up by Us; and
(ii) You authorise Us to charge any additional Hire Fees to the same account used by You at the time of booking.

3. Warranties, Indemnity, Acknowledgements and Obligations
(a) You warrant that:
(i) any person using the Goods is over 18 years old;
(ii) in selecting the Goods for hire, You have not relied on any representations made by or on behalf of Us and that you have made your own enquiries to satisfy yourself that the Goods are suitable for the use for which You intend to use them for;
(iii) You will only use the Goods for the purpose which they are intended to be used for; and
(iv) You will protect and keep the Goods secure and only use the Goods as they should be used by a careful and prudent person;
(v) You will comply with, and use the Goods in accordance with, the manufacturer’s specifications or instructions regarding the safe use of the Goods, copies of which are available on our website. This includes, but is not limited to, using appropriate safety and protective equipment and only using the manufacturer’s recommended fuel type.
(b) You acknowledge and agree that:
(i) any information provided by Us regarding the Goods or their use is general in nature and does not take into account Your specific needs;
(ii) You must not attempt to repair the Goods, regardless of the extent of any actual or perceived damage to the Goods; and
(iii) You must report any damage to, or loss of, the Goods to Us immediately upon becoming aware of such damage or loss.
(c) You indemnify Us for any loss (including legal costs) incurred by Us in relation to any breach of this agreement and for any liability arising out of any such breach.

4. Our Obligations
We agree to:
(a) hire the Goods to You for the Term;
(b) provide the Goods to You in good working order; and
(c) subject to the terms of this agreement, allow You to exclusively use the Goods during the Term.

5. Damage to Goods
(a) At the time of delivery of the Goods to You, We will inspect the Goods with you and identify any existing damage to the Goods. Subject to this inspection, You will be deemed to have accepted the Goods in good order and condition and without any other damage or defect.
(b) If, during the Term, the Goods become damaged or defective in any way or are lost, You must:
(i) immediately cease using the Goods;
(ii) immediately notify Us in writing and provide all relevant particulars of the incident;
(iii) take all steps necessary to prevent injury occurring to any person and to prevent any further damage to the Goods; and
(iv) not repair or attempt to repair the Goods without Our prior written consent.
(c) Subject to clause 5(a), in the event that the Goods are damaged at the end of the Term when returned to, or collected by Us, We reserve our right to repair or replace the Goods at our discretion and seek reimbursement from You for the reasonable cost of repairs or replacement.

6. No Right to Sub-Hire or Relocate
You acknowledge and agree that You are prohibited from sub-hiring or sub-renting the Goods hired under this agreement, or moving the Goods to a location other than the agreed delivery location. Any failure to observe this provision constitutes a material breach of this agreement.

7. Termination
(a) These rights of termination are in addition to any other rights either party has under the agreement and do not exclude any right or remedy available under law or equity.
(b) If You terminate this agreement more than 48 hours prior to the start of the Term, You are entitled to a full refund of the Hire Fees, which will be paid to You within 48 hours of cancellation.
(c) If You terminate this agreement at any time within 48 hours of the start of the Term, You acknowledge that the Goods were set aside for hire by You, therefore You will only be entitled to a credit note for the Hire Fees, which are valid for use within 12 months of issue.
(d) Subject to clause 7(d), We reserve the right to cancel this agreement and Your hire of the Goods at any time up to the start of the Term if the Goods are damaged, deemed unsafe or otherwise not suitable for hire.
(e) If We cancel this agreement and Your hire of the Goods pursuant to clause 7(c), We will refund you the full amount of the Hire Fees and any bond or security deposit paid by You within 48 hours of such termination.

8. Repossession and Right of Entry
You authorise Us (and our personnel) to enter onto any premises on which the Goods are located (or to be located) for the purposes of:
(a) delivering the Goods;
(b) providing general training and support to You regarding the safe and effective use of the Goods;
(c) retaking possession of the Goods at the end of the Term; or
(d) retaking possession of the Goods if You breach any provision of this agreement.

9. Consequences of Breach
If You commit a material breach of this agreement and do not remedy the breach within a reasonable period of time (having regard to the nature of the breach), then, without limiting any other remedy available to it, We shall be entitled to:
(e) termination this agreement;
(f) recovery any loss and damage suffered by Us from You; or
(g) take any action necessary to recover any unpaid amounts from You.

10. Liability Limitation
(a) The liability of a party to the other party for breach of contract, or in tort, or for any other common law or statutory cause of action arising out of the operation of this agreement will (except to the extent that an exclusion or limitation of liability is prohibited by law) be the sum of the Hire Fees and the bond or security deposit. (Liability Cap).
(b) The Liability Cap applies in the aggregate to all occurrences giving rise to a cause of action.
(c) This limitation does not apply in relation to liability for:
(i) personal injury (including sickness and death);
(ii) loss of, or damage to, tangible property, including the Goods;
(iii) breach of confidentiality;
(iv) breach of any intellectual property rights; or
(v) breach of privacy.
(d) The liability of a party for loss or damage sustained by the other party will be reduced proportionately to the extent that such loss or damage was caused by the other party's failure to comply with its obligations and responsibilities under this agreement or to the extent that the negligence of the other party contributed to such loss or damage, regardless of whether a claim is made by the other party for breach of contract or for negligence.
(e) Nothing in this agreement affects the duty of a party to mitigate damages after a breach of this agreement by the other party.

11. Exclusion of Liability
(a) To the extent permitted by law, in no event will We be liable (whether before or after the expiry or termination of this agreement) for any loss or damage which You suffer arising from, or caused or contributed to by, your own negligence, your failure to use the Goods in accordance with any instructions provided to You or in a manner inconsistent with the way in which the Goods ought typically to be used;
(b) Neither party is liable to the other party in contract, tort, negligence, breach of statutory duty or otherwise for any loss, damage, costs or expenses of any nature whatsoever incurred or suffered by that other party of an indirect or consequential nature including any economic loss or other loss of turnover, profits, business or goodwill. For the purposes of this sub-clause, losses of an “indirect or consequential nature” means any loss that does not arise naturally and according to the usual course of things as a result of a breach of this agreement or other event giving rise to such loss, whether or not such loss may reasonably be supposed to have been in the contemplation of the parties at the time they made this agreement.

12. Title to Goods
You acknowledge and agree that:
(a) We retain title to the Goods and that You have a right to possess the Goods as a mere bailee only; and
(b) You will not attempt, offer or purport to sell, assign, sublet, lend, pledge, mortgage, let on hire, create a security interest over, or otherwise part with or attempt to part with the personal possession of or otherwise deal with the Goods and not to conceal or alter the Goods or make any addition or alteration to, or repair of, the Goods.

13. Disputes
(a) If a dispute arises between the parties in relation to this agreement, the dispute must be dealt with in accordance with this clause.
(b) Any party claiming that a dispute exists must notify the other party to the dispute (Second Party) in writing of the nature of the dispute.
(c) If the dispute is not resolved by agreement within 10 working days of the Second Party receiving the notice referred to in clause 12(b) above, either party may refer the matter to mediation conducted by a mediator agreed between the parties within a further five working days or failing agreement within that period, as appointed by the president of the Law Institute of Victoria. The costs of the mediator must be borne equally between the disputing parties. The chosen mediator must determine the procedures for the mediation. The chosen mediator will not have the power or authority to make any other determination in relation to the dispute.
(d) If the parties have not mediated a resolution of the dispute within 15 working days of the selection of a mediator, neither party must be obliged to continue any attempt at mediation under this clause, and either party may then commence such legal proceedings as it thinks fit in relation to the dispute.

14. Privacy
We will comply with the Australian Privacy Principles (as contained in the Privacy Act 1988) and our privacy policy, accessible at www.doitdaddy.com.au/pages/privacy-policy

15. Confidentiality
(a) Each party agrees to keep the Confidential Information of the other party confidential and to use such information only for the purposes of performance of their respective obligations under this agreement.
(b) Confidential Information does not include information which:
(i) is generally available in the public domain otherwise than as a result of a breach of clause 14(a); or
(ii) was known prior to the disclosure of the information by the other party.
(c) Each party indemnifies the other fully against all liabilities, costs and expenses which it may incur as a result of any breach of confidentiality by the other party.
(d) The obligations of confidentiality under this clause 14 survive termination or expiry of this agreement.

16. Operator Competency Declaration
By entering into this Agreement, the Hirer (Commercial Customer) acknowledges and agrees that:
(a) Competency & Compliance: The operation of the hired mini excavator and or mini loader requires operators to be suitably trained, competent, and experienced in accordance with WorkSafe Victoria regulations and all relevant occupational health and safety laws.

(b) Hirer’s Responsibility for Operators: The Hirer expressly warrants that any personnel operating the mini excavator:
(i) Have received appropriate training and/or competency assessment for safe and lawful operation.
(ii) Are aware of and will comply with all workplace safety regulations applicable to the use of the equipment.
(iii) Will use the equipment only for its intended purpose and in accordance with all manufacturer guidelines and site safety requirements.

17. General
(a) Time is of the essence of this agreement, except that no delay by Us in exercising any right or power will operate as a waiver of that right or power, nor will any single or partial exercise of any right or power preclude any other or further exercise of that right or power.
(b) This agreement takes effect, is governed by, and will be construed in accordance with, the laws from time to time in force in Victoria, Australia. The Parties submit to the non-exclusive jurisdiction of the courts of Victoria.
(c) This agreement constitutes the entire agreement between the parties and supersedes all previous communications or agreements, whether oral or written, relating to the subject matter of this agreement.
(d) If any provision or part of any provision of the agreement is invalid, illegal or unenforceable, such provision or part thereof shall be severed from the agreement and the remainder shall continue in full force and effect.
(e) Any waiver of rights will not be deemed a waiver unless it is in writing and signed by an authorised officer of the party waving such rights and any such waiver will only operate to the extent so specified.
(f) We may assign this agreement to any third party without Your consent (including to a Related Body Corporate). You are not permitted to assign, novate or otherwise deal with your rights under this agreement without the prior written consent of Us.
(g) Force Majeure:
(i) Neither Party has any liability under, or may be deemed to be in breach of, this agreement for any delays or failures in performance of this agreement which result from a Force Majeure Event.
(ii) The Party affected by these circumstances must promptly notify the other Party in writing when such circumstances cause a delay or failure in performance.
(h) Clauses 2, 7, 8, 9, 10, 12, 13, 14 and any other provisions which expressly or by implication are intended to survive termination or expiry, survives termination or expiry of this agreement.
18 Definitions
In this agreement:
Us, Our, We means Do It Daddy Pty Ltd ABN 34 652 706 413, being the entity that owns and hires the Goods.
You/Your means the person hiring the Goods, as disclosed in the web order form.
Confidential Information means each party’s information made available to the other at any time concerning the business, operations, finances, plans or contractors of the disclosing party (or the disclosing party’s Related Bodies Corporate, as defined in the Corporations Act 2001 (Cth)), including customer lists and pricing information and including any information that is derived from such information, but does not include information which:
(a) is or becomes public knowledge other than by a breach of this Agreement; or
(b) is independently known to, or developed by, the receiving party as evidenced by the receiving party’s written records
Goods means the goods that are to be hired under this agreement and any replacement for those goods and includes all accessories and other equipment as advertised on Our website or disclosed to you at the time of delivery of the Goods.
GST has the same meaning as in the A New Tax System (Goods and Services Tax) Act 1999 (Cth).
Hire Fees means the fees for the hire of the Goods, as disclosed on our website.
Term means the agreed period of time that the Goods are hired, as extended or renewed by the parties in writing, as disclosed or requested by you on Our web form.