Terms & Conditions of Hire

1.1 Definitions

In this Agreement, unless the context otherwise requires:

Agreement means these Terms & Conditions together with any Hire Schedule, quotation, booking confirmation, invoice, or other document issued by BAU in connection with the hire of Equipment.

BAU means BAU Plant Hire Pty Ltd (ABN 84 694 756 691) and includes its employees, officers, agents, and contractors.

Confidential Information means:

a) the terms of this Agreement and its subject matter, including information submitted or disclosed by a party during negotiations, discussions and meetings relating to this Agreement;

b) information that at the time of disclosure by a disclosing party is identified to the receiving party as being confidential; and

c) all other information belonging or relating to a disclosing party, or any related entity of that disclosing party, that is not generally available to the public at the time of disclosure other than by reason of a breach of this Agreement or which the receiving party knows, or ought reasonably to be expected to know, is confidential to that disclosing party or any of its related entities.

Customer means the person, company, or other legal entity hiring the Equipment from BAU, including its employees, agents, contractors, and invitees.

Damage Waiver Cap means the maximum amount of the Customer’s liability for a single incident where Damage Waiver applies, calculated in accordance with this Agreement and the Hire Schedule.

Damage Waiver Plus means the Damage Waiver option under which the Customer’s liability is limited to the actual repair cost up to 15% of the Scheduled Equipment Value.

Equipment means the plant, machinery, attachments, accessories, or other equipment hired under this Agreement.

Hire Period means the period commencing and ending in accordance with Section 3 of this Agreement.

Hire Schedule means any quotation, booking confirmation, or schedule issued by BAU that specifies the Equipment, hire rates, Hire Period, delivery arrangements, Scheduled Equipment Value, any elected Damage Waiver option, and any special conditions.

Scheduled Equipment Value means the value of the Equipment stated in the Hire Schedule for the purpose of calculating the Customer’s liability where Damage Waiver applies.

Site means the location at which the Equipment is delivered, used, stored, or collected.

Standard Damage Waiver means the Damage Waiver option under which the Customer’s liability is limited to the actual repair cost up to 20% of the Scheduled Equipment Value.

1.2 Interpretation

In this Agreement, unless the context otherwise requires:

a) headings are for convenience only and do not affect interpretation;

b) words importing the singular include the plural and vice versa;

c) references to a person include a company, partnership, trust, government authority, or other legal entity;

d) a reference to any law includes that law as amended, re-enacted, or replaced from time to time; and e) where an obligation is imposed on the Customer, that obligation binds the Customer jointly and severally.

2.1 Dry Hire Only (Default)

All Equipment is supplied on a dry hire basis only, unless BAU expressly agrees in writing to provide wet hire.

2.2 Future Wet Hire

Where wet hire is agreed in writing:

a) BAU will supply an operator;

b) additional terms, rates, and conditions may apply; and

c) BAU retains operational control of the Equipment during wet hire.

2.3 No Implied Wet Hire

The presence of BAU branding, delivery assistance, or operational advice does not constitute wet hire.

2.4 Customer Responsibility (Dry Hire)

For dry hire, the Customer:

a) has full care, custody, and control of the Equipment;

b) is responsible for selecting suitable Equipment; and

c) warrants that all operators are competent, licensed, and trained.

2.5 Ownership of Equipment

Title to the Equipment remains with BAU at all times.

Nothing in this Agreement transfers any ownership or proprietary interest in the Equipment to the Customer.

The Customer acknowledges that it hires the Equipment as a bailee only and that the Customer obtains no ownership, title, or other interest in the Equipment. The Customer must not sell, assign, encumber, charge, mortgage, or otherwise deal with the Equipment or represent to any person that the Customer has any ownership interest in the Equipment. BAU may hire, lease, or otherwise deal with the Equipment at its discretion once the Hire Period has ended.

3.1 Hire Period Commencement

The Hire Period commences:

a) where Equipment is delivered by BAU, at the time the Equipment is delivered to the Site or other agreed delivery location; or

b) where Equipment is collected by the Customer or the Customer’s agent, at the time the Equipment leaves BAU’s premises.

3.2 Hire Period Completion (Return or Collection)

The Hire Period ends:

a) where Equipment is collected by BAU, at the time the Equipment is collected from the Site or other agreed location, subject to subsequent inspection and acceptance by BAU; or

b) where Equipment is returned by the Customer or the Customer’s agent, at the time the Equipment is returned to BAU’s nominated location and inspected and accepted by BAU.

Until such inspection and acceptance occurs, the Equipment remains on hire and hire charges continue to apply.

3.3 Condition on Return

The Equipment must be returned in the same condition, state of cleanliness and working order as recorded in the Inspection Report, save for fair wear and tear.

3.4 Off-Hire by Notice (Pending Collection)

The Customer may request off-hire of Equipment prior to physical collection by BAU by providing clear notice to BAU during normal business hours.

Where such notice is accepted and confirmed by BAU:

a) hire charges will cease at the time and date specified in BAU’s confirmation of off-hire;

b) the Equipment must be immediately removed from use, safely parked, shut down, and secured;

c) the Equipment must be left in a condition suitable for inspection and collection; and

d) risk, care, and responsibility for the Equipment remain with the Customer until the Equipment is collected by BAU and inspected.

BAU may refuse or defer off-hire where the Equipment is not accessible, safe, or ready for collection.

No allowance will be made for idle time while Equipment awaits collection unless expressly agreed in writing by BAU.

3.5 Hire Charges

Hire charges:

a) accrue for the entire Hire Period as determined under this Agreement;

b) apply regardless of weather conditions, site conditions, or downtime not caused by BAU; and

c) are exclusive of transport, fuel, consumables, damage, cleaning, or other charges unless expressly stated otherwise.

3.6 Minimum Hire Periods & Extensions

Minimum hire periods apply unless otherwise agreed in writing. Part days may be charged as full days.

Hire extensions must be approved by BAU in writing. Where the Customer continues to use or retain the Equipment beyond the agreed Hire Period without BAU’s approval, the Customer is liable for additional hire charges at BAU’s applicable rates.

3.7 Rates & Taxes

All rates are exclusive of GST unless stated otherwise. The Customer is responsible for all applicable taxes, duties, and levies.

4.1 Delivery Arrangements

Delivery and collection of Equipment may be arranged by BAU or by the Customer, as agreed in writing.

Where BAU arranges delivery or collection, transport charges will apply unless otherwise stated in writing.

Delivery and collection times provided by BAU are estimates only and may be subject to change due to traffic, Site access, weather, operational constraints, or other factors beyond BAU’s reasonable control.

4.2 Site Access & Readiness

The Customer must ensure that the Site is, at all relevant times:

a) safely and lawfully accessible for delivery and collection vehicles;

b) suitable for the size, weight, and configuration of the Equipment and transport vehicles; and

c) ready to receive or release the Equipment at the agreed time.

BAU is not responsible for delays, inability to deliver, or inability to collect Equipment caused by inadequate access, unsafe conditions, or Site readiness issues.

4.3 Failed Deliveries & Collections

Where BAU is unable to deliver or collect Equipment due to circumstances outside BAU’s control, including but not limited to restricted or unsafe access, Site conditions preventing safe delivery or collection, absence of authorised personnel, Equipment not being ready or accessible for collection, or incorrect or incomplete delivery instructions, BAU may charge:

a) reasonable waiting time;

b) redelivery or recollection costs; and

c) any additional transport, hire, or related charges incurred. Cessation of use of the Equipment does not of itself constitute off-hire. Off-hire occurs only in accordance with Section 3 of this Agreement.

4.5 Loading & unloading

Unless otherwise agreed in writing:

a) BAU is not responsible for loading or unloading Equipment where the Customer arranges transport; and

b) the Customer is responsible for ensuring that all loading and unloading is carried out safely and in compliance with applicable laws.

BAU may refuse to deliver or collect Equipment where it reasonably considers loading, unloading, or Site conditions to be unsafe.

4.6 Custody & Control During Transport and Awaiting Collection

Custody and control of the Equipment transfers in accordance with the delivery and collection arrangements agreed between the parties and as set out in Section 3.

Without limiting the above:

a) where Equipment is delivered by BAU, custody transfers to the Customer upon delivery to the Site or agreed location;

b) where Equipment is collected by BAU, custody transfers back to BAU upon physical collection from the Site, subject to inspection and acceptance;

c) where the Customer arranges transport, custody and control remain entirely with the Customer during transport; and

d) where Equipment has been off-hired by notice under Section 3.3 but remains on Site awaiting collection, custody, risk, and responsibility remain with the Customer until collection by BAU.

The Customer is responsible for safeguarding the Equipment whenever it is in the Customer’s custody or control.

4.7 Equipment Condition & Inspection Report

BAU may provide a condition report, inspection record, photographs, or other documentation describing the condition of the Equipment at or about the time of delivery (Inspection Report).

Unless the Customer notifies BAU in writing of any damage, defect, or discrepancy within 24 hours of delivery or collection of the Equipment, the Customer is deemed to have accepted the Equipment in good working order and condition, fair wear and tear excepted.

The Customer remains responsible for inspecting the Equipment prior to use and must immediately notify BAU of any defect, damage, or issue that may affect safe operation.

The Inspection Report, including any service records and telematics data maintained by BAU may be relied upon as evidence of the condition of the Equipment at the commencement and conclusion of the Hire Period.

Failure by the Customer to inspect the Equipment does not limit the Customer’s responsibilities under this Agreement.

The parties agree that the Inspection Report:

a) forms part of this Agreement;

b) is conclusive evidence of the condition of the relevant items of Equipment at the commencement of the Hire Period, except for manifest error; and

c) will be used to determine the condition in which the relevant items of Equipment must be returned under this Agreement.

4.8 Chain of Responsibility Compliance

Each party acknowledges its obligations under applicable road transport and heavy vehicle legislation, including Chain of Responsibility requirements.

Without limiting the above:

a) where BAU arranges delivery or collection, BAU is responsible for compliance with Chain of Responsibility obligations to the extent that BAU controls the transport task;

b) where the Customer arranges transport, the Customer is solely responsible for compliance with all Chain of Responsibility obligations relating to that transport, including vehicle suitability, loading, restraint, routing, scheduling, access, and instructions; and

c) the Customer must not give, request, or accept instructions that would cause or encourage a breach of Chain of Responsibility obligations.

The Customer indemnifies BAU against any loss, penalty, damage, or liability arising from the Customer’s breach of Chain of Responsibility obligations or from information, directions, or instructions provided by the Customer in connection with transport.

4.9 Delays & Events Beyond Control

BAU will not be liable for delays or failure to deliver or collect Equipment caused by events beyond its reasonable control, including but not limited to adverse weather, industrial action, road closures, accidents, or mechanical failure of transport vehicles.

5.1 Permitted Use

The Equipment must be used:

a) strictly in accordance with the manufacturer’s instructions and any directions provided by BAU;

b) only for the purpose for which the Equipment was designed; and

c) in a safe, careful, and lawful manner.

The Customer must not use, or permit the use of, the Equipment for any purpose for which it is not reasonably suited.

5.2 Operators & Competency (Dry Hire)

Where Equipment is supplied on a dry hire basis:

a) the Customer is solely responsible for selecting, supervising, and controlling all operators;

b) all operators must be competent, appropriately trained, and hold all licences, tickets, or certifications required by law; and

c) the Customer warrants that all operators are familiar with the Equipment and capable of operating it safely.

BAU does not supervise or control the operation of Equipment supplied on a dry hire basis.

5.3 Prohibited Use

The Customer must not, and must not permit any person to:

a) misuse, abuse, overload, modify, or tamper with the Equipment;

b) use the Equipment in a reckless, negligent, or unsafe manner;

c) use the Equipment in a manner contrary to any law, regulation, or Site rule;

d) use the Equipment for demolition, rock breaking, lifting persons, or any other purpose not expressly approved by BAU;

e) operate the Equipment while under the influence of alcohol, drugs, or medication that may impair safe operation;

f) remove, alter, or obscure any identification, warning labels, or safety devices; or

g) remove, tamper with, disable, or interfere with any GPS tracking device, telematics system, security device, or identification installed on the Equipment.

5.4 Relocation and Site Transfer of Equipment

The Equipment must not be relocated, transferred, transported, or moved from the Site without the prior written consent of BAU.

The Customer must notify BAU and obtain approval before:

a) moving the Equipment to another site, project, or location;

b) transporting the Equipment by road, rail, sea, or other means; or

c) allowing the Equipment to be used at a location other than the Site specified in the Hire Schedule.

Where BAU approves relocation of the Equipment, the Customer remains responsible for ensuring that:

d) transport is carried out safely and in compliance with all applicable laws and Chain of Responsibility requirements;

e) the Equipment is properly loaded, secured, and protected during transport; and

f) the destination site is suitable and safe for operation of the Equipment.

Any relocation of the Equipment without BAU’s prior written consent constitutes a breach of this Agreement.

The Customer remains fully responsible for the Equipment and all associated risks, costs, and liabilities arising from any relocation of the Equipment, including relocation undertaken without BAU’s consent.

BAU may rely on telematics or GPS tracking data to determine whether the Equipment has been relocated in breach of this clause.

5.5 Underground Services, Ground Conditions and Site Information

The Customer is solely responsible for ensuring that the Site is safe and suitable for the operation of the Equipment.

Before operating the Equipment, the Customer must:

a) identify the location of underground services, including but not limited to electricity, gas, water, sewer, telecommunications, drainage, and other utilities;

b) obtain all relevant plans, permits, approvals, and service location information required by law or reasonably necessary to safely operate the Equipment; and

c) clearly mark or otherwise identify underground services on the Site where required.

The Customer warrants that it has taken all reasonable steps to locate, identify, and protect underground services prior to operating the Equipment.

BAU accepts no responsibility or liability for damage to underground services, utilities, structures, or infrastructure arising from the use or operation of the Equipment.

The Customer is liable for all loss, damage, costs, claims, or liabilities arising from:

d) damage to underground services or infrastructure;

e) failure to properly identify underground services;

f) inaccurate or incomplete information provided to BAU regarding Site conditions; or

g) unsafe, unstable, or unsuitable ground conditions at the Site.

The Customer indemnifies BAU against all claims, losses, damages, penalties, and costs arising from or in connection with damage to underground services or unsafe Site conditions.

5.6 Fuel & Consumables

Unless otherwise agreed in writing:

a) the Equipment is supplied with a specified fuel level and must be returned with the same fuel level;

b) the Customer is responsible for all fuel and consumables used during the Hire Period; and

c) only the correct fuel type and specification, as advised by BAU or the manufacturer, may be used.

If the Equipment is returned with less than the required fuel level, BAU may refuel the Equipment and charge the Customer:

i) the cost of fuel at the prevailing market rate; and

ii) a reasonable service and administration fee.

The Customer is liable for any loss, damage or associated costs resulting from:

i) the use of incorrect fuel;

ii) contamination of fuel or consumables; or

iii) failure to comply with manufacturer requirements.

Such loss or damage is not considered fair wear and tear and is not subject to any limitation under the Damage Waiver.

BAU’s determination of fuel quantity and cost is final, acting reasonably.

5.7 Weed, Seed & Biosecurity Control

The Customer must ensure that the Equipment is used, stored, and returned in a manner that prevents the spread of weeds, seeds, soil, or other contaminants.

Where required by law, Site rules, or reasonable direction from BAU, the Customer must ensure that the Equipment is cleaned, washed down, or otherwise treated prior to relocation, return, or collection.

BAU may charge the Customer for any cleaning, washdown, treatment, delay, or additional handling required where Equipment is returned in a contaminated condition or where required washdown has not been completed.

The Customer is responsible for complying with all applicable environmental, biosecurity, and weed control requirements relating to the use and movement of the Equipment.

5.8 Care, Safekeeping & Security

While the Equipment is in the Customer’s custody or control, the Customer must:

a) take all reasonable steps to protect the Equipment from loss, theft, damage, vandalism, or weather exposure;

b) secure the Equipment when not in use, including removing keys where applicable; and

c) store the Equipment in a safe and appropriate location.

The Customer remains responsible for the Equipment at all times until custody transfers back to BAU in accordance with this Agreement.

Failure by the Customer to take reasonable steps to secure the Equipment may result in the Damage Waiver not applying.

5.9 Maintenance & Adjustments

The Customer must not carry out, or permit to be carried out, any repairs, adjustments, servicing, or modifications to the Equipment without BAU’s prior written consent.

Routine daily checks (including fluid levels, visual inspections, and basic cleaning) are the responsibility of the Customer during the Hire Period.

5.10 Breakdown, Damage & Reporting

The Customer must immediately notify BAU of:

a) any breakdown, malfunction, damage, or defect; or

b) any incident involving the Equipment that may give rise to loss, damage, or injury.

The Customer must cease using the Equipment where continued use may cause further damage or pose a safety risk.

Damage caused by misuse, negligence, incorrect operation, improper fuelling, failure to follow instructions, or failure to comply with this Agreement will be charged to the Customer.

5.11 Compliance with Laws & Site Requirements

The Customer is responsible for ensuring that use of the Equipment complies with:

a) all applicable laws, regulations, and codes of practice;

b) all Site rules, safety requirements, and inductions; and

c) any environmental, heritage, or biosecurity obligations applicable to the Site.

6.1 Risk

Risk in the Equipment passes in accordance with Section 3 and remains with the Customer while the Equipment is in the Customer’s custody or control.

Without limiting the above, the Customer bears all risk of loss, theft, damage, or deterioration of the Equipment from the commencement of the Hire Period until custody transfers back to BAU in accordance with this Agreement, regardless of whether the Equipment is in use or idle.

6.2 Insurance (Dry Hire)

Where Equipment is supplied on a dry hire basis, the Customer is responsible for maintaining, at its own cost, appropriate insurance for the duration of the Hire Period, including:

a) insurance for loss of or damage to the Equipment for its full replacement value; and

b) public liability insurance with a minimum limit of indemnity of $20,000,000 per occurrence covering liability arising from the use, operation, or possession of the Equipment.

Prior to the commencement of the Hire Period, the Customer must provide BAU with current certificates of currency evidencing:

c) public liability insurance meeting the requirements of this clause; and

d) insurance covering hired-in plant and equipment for the full replacement value of the Equipment.

The Customer must ensure that such insurance remains valid and in force for the entire Hire Period.

Failure by BAU to request or verify evidence of insurance does not limit or reduce the Customer’s liability under this Agreement.

BAU may refuse to release Equipment where satisfactory evidence of insurance has not been provided.

6.3 Insurance (Wet Hire – If Applicable)

Where wet hire is expressly agreed in writing:

a) BAU will maintain insurance relating to its operator to the extent required by law; and

b) the Customer remains responsible for Site safety, Site conditions, and any matters outside BAU’s direct operational control.

Additional insurance terms may apply and will be confirmed in writing where wet hire is provided.

6.4 Liability for Loss or Damage

The Customer is liable for all loss of or damage to the Equipment occurring during the Hire Period or while the Equipment is otherwise in the Customer’s custody or control, including loss or damage caused by misuse, negligence, incorrect operation, improper fuelling, contamination, theft, vandalism, environmental conditions, or failure to secure or safeguard the Equipment.

This liability applies regardless of whether the loss or damage is covered by insurance.

6.5 Exclusion of Consequential Loss

To the maximum extent permitted by law, BAU is not liable for any indirect or consequential loss, including loss of profit, loss of production, delay costs, or economic loss arising from or in connection with the hire or use of the Equipment.

6.6 Limitation of Liability

To the extent permitted by law, BAU’s total liability arising out of or in connection with the hire of Equipment is limited to one of the following (at BAU’s election):

a) the replacement of the Equipment;

b) the repair of the Equipment; or

c) the hire charges paid by the Customer for the Hire Period.

Nothing in this Agreement excludes or limits liability that cannot be excluded by law.

6.7 Indemnity

To the maximum extent permitted by law, the Customer indemnifies BAU, its officers, employees, and agents against all claims, losses, damages, liabilities, costs, and expenses (Loss) arising out of or in connection with:

a) the loss of, loss of use of, or damage to any property, equipment or vehicles (including the Equipment) arising from the Customer’s use, operation, possession, or storage of the Equipment;

b) any breach of this Agreement by the Customer;

c) injury to, total and permanent disability of, illness of or death of any person;

d) any levies, fines, penalties or other charges arising from the Customer’s use of the Equipment;

e) any claim, action, demand or proceeding by a third party against BAU caused by or contributed to by the Customer; or

f) any other loss or damage arising from the Customer’s use, operation, possession, or storage of the Equipment not otherwise covered above.

This indemnity does not apply to the extent that the Loss is caused by the negligence or breach of this Agreement by BAU.

6.8 No Representation or Advice

Any information, guidance, or assistance provided by BAU regarding the Equipment or its use is general in nature only and does not constitute supervision, control, or acceptance of responsibility for operation of the Equipment.

The Customer remains solely responsible for assessing the suitability of the Equipment for its intended use.

7.1 Responsibility for Loss or Damage

The Customer is responsible for all loss of or damage to the Equipment occurring during the Hire Period or while the Equipment is otherwise in the Customer’s custody or control, regardless of cause, except to the extent caused by BAU’s negligence.

This includes loss or damage arising from misuse, abuse, improper operation, overloading, theft, attempted theft, vandalism, incorrect fuelling, contamination, Site conditions, environmental factors, or failure to secure or safeguard the Equipment.

7.2 Inspection on Return

All Equipment is subject to inspection by BAU upon return or collection.

Inspection may occur immediately or within a reasonable time after return.

The Customer remains liable for any loss or damage identified during inspection that exceeds fair wear and tear.

BAU may rely on photographs, inspection reports, service records, and telematics data in determining the cause and extent of loss or damage.

7.3 Fair Wear and Tear

Fair wear and tear means the reasonable deterioration of the Equipment resulting from normal and proper use in accordance with this Agreement and the manufacturer’s operating instructions.

Fair wear and tear does not include damage caused by misuse, overloading, negligence, improper operation, impact, collision, rollover, immersion, incorrect fuelling, contamination, inadequate cleaning, washdown or biosecurity control, structural damage, glass damage or loss of components, accessories, keys, or attachments.

7.4 Repair Costs

Where the Equipment is returned damaged, or not in the condition recorded in the Inspection Report, the Customer is liable for:

a) the full cost of repairs required to restore the Equipment to the condition recorded in the Inspection Report;

b) replacement of parts, components, or accessories;

c) labour, freight, and subcontractor costs; and

d) any additional costs reasonably incurred by BAU in effecting repairs, cleaning or decontaminating the Equipment.

BAU may elect to repair, replace, or otherwise remediate damaged Equipment at its discretion.

7.5 Hire Charges During Repair or Replacement

Where Equipment is damaged, lost, or rendered unusable due to the Customer’s acts or omissions, the Customer is liable for hire charges:

a) for the period reasonably required to repair or replace the Equipment; or

b) until the Equipment is returned to service or replaced,

unless otherwise agreed in writing.

7.6 Total Loss

Where Equipment is lost, stolen, destroyed, or damaged beyond economical repair, the Customer is liable for:

a) the replacement value of the Equipment as reasonably determined by BAU; and

b) any unpaid hire charges, transport costs, or other charges accrued under this Agreement.

Any insurance proceeds received by BAU may be applied in reduction of the Customer’s liability, but do not limit the Customer’s obligations under this Agreement.

7.7 Theft Loss and Abandonment

The Customer must take all reasonable steps to safeguard the Equipment against theft, loss, vandalism, or unauthorised use while the Equipment is in the Customer’s custody or control.

Without limiting the above, the Customer must ensure that the Equipment is securely stored when not in use, including removing keys, securing the Equipment where practicable, and not leaving the Equipment unattended in circumstances that materially increase the risk of theft or loss.

Where Equipment is lost, stolen, or believed to have been stolen, the Customer must:

a) immediately notify BAU upon becoming aware of the incident;

b) report the incident to the relevant police authority as soon as practicable;

c) provide BAU with the police report number and written details of the incident upon request; and

d) take all reasonable steps to assist in locating and recovering the Equipment, including cooperating with BAU and any insurer.

The Customer must not abandon the Equipment, leave it unsecured, or fail to take reasonable steps to protect it from theft, vandalism, or unauthorised use.

Nothing in this clause limits the Customer’s liability for loss, theft, or total loss of Equipment as set out in Section 7.5.

7.8 Cleaning, Decontamination & Biosecurity Costs

Without limiting other provisions of this Agreement, the Customer is liable for:

a) cleaning, washdown, or decontamination required due to contamination, weed or seed presence, or excessive dirt or material buildup; and

b) delays or additional handling required to carry out such cleaning or treatment.

7.9 No Set-Off

The Customer must not withhold, set off, or deduct any amounts claimed by BAU for loss, damage, repairs, or cleaning against hire charges or other amounts payable, unless otherwise agreed in writing.

The Customer is liable for all loss of or damage to the Equipment under this Agreement, including up to the full replacement value.

Where the Customer has elected and paid for Standard Damage Waiver or Damage Waiver Plus, BAU agrees to limit the Customer’s liability only to the extent expressly set out in this section. If the Customer does not elect and pay for Damage Waiver, the Customer’s liability is not limited and includes the full replacement value of the Equipment together with any associated costs arising under this Agreement.

8.1 Election of Damage Waiver

The Customer may elect to purchase either Standard Damage Waiver or Damage Waiver Plus for the Equipment by paying the applicable Damage Waiver fee specified in the Hire Schedule or invoice.

Where the applicable Damage Waiver fee is paid and accepted by BAU, BAU agrees to limit the Customer’s liability for loss of or damage to the Equipment during the Hire Period in accordance with this section.

The Damage Waiver:

a) is not insurance;

b) does not transfer ownership or risk of the Equipment; and

c) does not limit the Customer’s liability for failure to return the Equipment.

The Equipment remains at the Customer’s risk in accordance with this Agreement.

The Damage Waiver must be elected at or before the commencement of the Hire Period and cannot be applied retrospectively.

8.2 Customer Liability Where Damage Waiver Applies

Where Damage Waiver applies, the Customer remains liable for each separate incident for:

a) the actual repair cost of the Equipment; or

b) the applicable Damage Waiver Cap,

whichever is the lesser amount.

For the purposes of this clause:

c) where Standard Damage Waiver is elected, the Damage Waiver Cap is 20% of the Scheduled Equipment Value; and

d) where Damage Waiver Plus is elected, the Damage Waiver Cap is 15% of the Scheduled Equipment Value. BAU may determine the actual repair cost by reference to quotations, invoices, workshop assessments, freight, labour, parts, subcontractor charges, internal records, and other reasonable evidence of the cost of restoring the Equipment to the condition recorded in the Inspection Report.

8.3 Exclusions from Damage Waiver

The Damage Waiver does not apply to loss or damage resulting from:

a) theft, attempted theft, or unexplained disappearance where the Customer has failed to take reasonable steps to safeguard the Equipment;

b) misuse, abuse, overloading, negligent operation, or use contrary to manufacturer instructions or BAU directions;

c) operation by an unlicensed, untrained, or unauthorised operator;

d) use of the Equipment for unlawful purposes;

e) relocation, transport, or movement of the Equipment without BAU’s prior written approval;

f) damage caused during transport where transport is arranged by the Customer;

g) immersion of the Equipment in water, mud, corrosive substances, or flood conditions;

h) damage to underground services, utilities, or infrastructure;

i) failure by the Customer to comply with security obligations under this Agreement;

j) normal wear items including tyres, tracks, glass, cutting edges, buckets, teeth, hoses, and similar consumable components;

k) loss of accessories, attachments, keys, or documentation; or

l) breach of any applicable law or regulation in connection with the use of the Equipment by the Customer.

m) theft, unexplained disappearance, or total loss of the Equipment, unless BAU expressly agrees in writing in the Hire Schedule that Damage Waiver applies to that risk.

8.4 Total Loss Under Damage Waiver

Where the Equipment is lost, stolen, destroyed, or damaged beyond economical repair, and Damage Waiver applies, the Customer remains liable for each separate incident for:

a) the amount determined under clause 8.2; and

b) any loss, cost, or liability excluded from the Damage Waiver under this Agreement. For the avoidance of doubt, where BAU reasonably determines that the Equipment is damaged beyond economical repair, the Customer’s liability may be determined by reference to the applicable Damage Waiver Cap and the Scheduled Equipment Value stated in the Hire Schedule.

8.5 No Damage Waiver Selected

Where the Customer does not elect or pay for the Damage Waiver, the Customer is liable for the full replacement value of the Equipment together with any associated costs arising from loss, theft, or damage, in addition to its other liabilities under this Agreement.

9.1 Equipment Monitoring

BAU may install telematics, GPS tracking devices, or other monitoring systems in or on the Equipment.

The Customer acknowledges and agrees that:

a) the Equipment may be monitored for location, movement, usage, operating hours, maintenance requirements, and security purposes;

b) such monitoring may occur at any time during the Hire Period;

c) data collected from telematics systems may be used by BAU for operational, maintenance, billing, security, and recovery purposes.

The Customer must not:

d) remove, disable, tamper with, interfere with, or attempt to interfere with any telematics, GPS tracking device, or monitoring system installed on the Equipment.

Any interference with tracking equipment constitutes a material breach of this Agreement.

9.2 Telematics Data as Evidence

The Customer agrees that data obtained from telematics or tracking systems installed on the Equipment, including location data, movement records, operating hours, and alerts, may be relied upon by BAU as evidence of:

a) the location of the Equipment;

b) the operation and usage of the Equipment;

c) relocation or transport of the Equipment; and

d) the timing and circumstances of loss, damage, or misuse.

Such data may be used in determining the Customer’s liability under this Agreement.

9.3 Recovery of Equipment

Without limiting any other rights under this Agreement, BAU may take reasonable steps to locate and recover the Equipment where BAU reasonably believes that:

a) the Equipment is at risk of loss, theft, damage, or misuse;

b) the Customer has breached this Agreement;

c) the Equipment has been relocated without BAU’s consent; or

d) payment obligations have not been met.

To the extent permitted by law, the Customer irrevocably authorises and:

e) grants BAU and its agents a licence to enter any Site or premises where the Equipment is reasonably believed to be located for the purpose of inspecting, securing, or recovering the Equipment; and

f) appoints BAU and each of its directors as its attorney to do anything reasonably necessary to recover possession of the Equipment, including entering the premises of a third party where the Equipment is located.

The Customer must cooperate fully with BAU in facilitating access to and recovery of the Equipment.

The Customer is liable for all reasonable costs incurred by BAU in locating, securing, and recovering the Equipment.

10.1 Charges & Invoicing

The Customer must pay all hire charges, transport charges, and other amounts payable under this Agreement in accordance with BAU’s invoice.

Unless otherwise agreed in writing, BAU may invoice:

a) in advance;

b) progressively during the Hire Period; or

c) upon completion of hire.

10.2 Payment Terms

Payment terms are as stated on BAU’s invoice.

Unless otherwise agreed in writing, payment is due within seven (7) days of the invoice date and prior to the release of the Equipment where invoiced in advance.

Time for payment is of the essence.

10.3 Security Deposits

BAU may require a security deposit prior to commencement of hire.

Any security deposit may be applied by BAU, at its discretion, to unpaid hire charges, damage, cleaning, loss, or other amounts owing under this Agreement.

Any balance remaining after satisfaction of all amounts owing will be refunded to the Customer.

10.4 Suspension of Hire

Without limiting any other rights, BAU may suspend delivery, collection, or continued hire of Equipment where:

a) payment is overdue;

b) the Customer is otherwise in breach of this Agreement; or

c) BAU reasonably believes that continued hire poses a risk to payment, safety, or the Equipment.

Suspension does not relieve the Customer of payment obligations accrued prior to suspension.

10.5 Default

The Customer is in default if the Customer:

a) fails to pay any amount when due;

b) breaches any term of this Agreement;

c) provides misleading or false information to BAU; or

d) becomes insolvent, enters administration, liquidation, or any arrangement with creditors.

10.6 Interest on Overdue Amounts

BAU may charge interest on overdue amounts at a rate of 2% per calendar month, calculated daily, from the due date until payment is received.

Interest accrues before and after judgment.

10.7 Recovery Costs

The Customer is liable for all reasonable costs incurred by BAU in recovering any overdue or unpaid amounts, including debt collection agency fees, legal costs on a solicitor and own client basis, and administrative costs associated with recovery.

10.8 Set-Off & Withholding Prohibited

The Customer must not withhold, deduct, or set off any amounts claimed by BAU against any other amount payable, unless expressly agreed in writing by BAU.

10.9 Continuing Obligations

Termination or suspension of hire does not affect the Customer’s obligation to pay amounts accrued prior to termination or suspension, including hire charges, repair costs, cleaning costs, and recovery costs.

10.10 Security of Payment (WA)

Nothing in this Agreement limits, excludes, or modifies any right that BAU may have under the Construction Contracts Act 2004 (WA) or any similar or replacement legislation.

The Customer acknowledges that BAU may exercise its rights under such legislation in addition to its contractual rights under this Agreement.

11.1 Termination for Convenience

BAU may terminate this Agreement, or any hire under it, at any time by providing reasonable notice to the Customer.

Where termination occurs under this clause, the Customer must:

a) immediately cease using the Equipment; and

b) make the Equipment available for collection or return in accordance with BAU’s instructions.

Termination under this clause does not relieve the Customer of liability for hire charges and other amounts accrued up to the date the Equipment is returned and accepted by BAU.

11.2 Termination for Default

BAU may terminate this Agreement immediately by written notice if the Customer:

a) fails to pay any amount when due;

b) breaches any term of this Agreement and fails to remedy the breach (where capable of remedy) within a reasonable time after notice;

c) uses the Equipment in an unsafe, unlawful, or unauthorised manner;

d) fails to comply with safety, environmental, or biosecurity requirements; or

e) becomes insolvent, enters administration or liquidation, or makes any arrangement with creditors.

11.3 Consequences of Termination

Upon termination of this Agreement for any reason:

a) the Customer must immediately cease using the Equipment;

b) the Customer must make the Equipment available for collection or return it to BAU as directed;

c) BAU may enter the Site or any premises where the Equipment is located to recover the Equipment, to the extent permitted by law; and

d) the Customer remains liable for all hire charges, transport costs, damage, loss, cleaning, and other amounts payable under this Agreement up to and including the date the Equipment is returned and accepted by BAU.

11.4 Recovery of Equipment Following Termination

Where the Customer fails to return or make Equipment available for collection following termination, or at the expiry of the Hire Term, BAU may 

a) recover the Equipment by lawful means; and

b) charge the Customer for all reasonable costs incurred in recovering the Equipment, including transport, labour, and third-party costs.

Risk, custody, and responsibility for the Equipment remain with the Customer until the Equipment is recovered and accepted by BAU.

The licence and appointment granted to BAU by the Customer under clause 9.3 (Recovery of Equipment) of this Agreement apply to this clause 11.4.

The Customer must reimburse BAU, as a debt immediately due and payable, for any costs, losses or expenses BAU suffers or incurs in recovering the Equipment, including transport, labour and third-party costs as a result of BAU exercising its rights under this clause 11.4.

11.5 No Waiver of Accrued Rights

Termination of this Agreement does not affect:

a) any rights or remedies that have accrued prior to termination; or

b) BAU’s right to recover unpaid amounts, damages, or costs arising from the Customer’s use or possession of the Equipment.

11.6 Survival

Clauses relating to payment, risk, insurance, liability, indemnities, loss or damage, Chain of Responsibility, and governing law survive termination of this Agreement.

To the extent permitted by law, the Customer acknowledges that this Agreement constitutes a security agreement for the purposes of the Personal Property Securities Act 2009 (Cth) (PPSA).

The Customer grants BAU a security interest in the Equipment and in any proceeds arising from the use, hire, or disposition of the Equipment.

The Customer consents to BAU registering its security interest on the Personal Property Securities Register (PPSR) and agrees to do all things reasonably required by BAU to ensure that BAU’s security interest is:

a) enforceable;

b) perfected; and

c) maintained with priority.

The Customer must not grant any other security interest over the Equipment that would rank ahead of BAU’s security interest.

13.1 General Obligations

Except as expressly permitted by this Agreement, each party:

a) must hold the Confidential Information of the other party in strict confidence and not disclose it or otherwise make it available to any person;

b) must not use any Confidential Information of the other party for any purpose other than in relation to or as permitted under this Agreement;

c) must store all Confidential Information of the other party so that it is reasonably protected from unauthorised access, use, copying, reproduction or disclosure; and

d) must immediately notify the other party if it becomes aware or suspects that any Confidential Information of the other party has been, or is likely to be, held, disclosed, used, copied, reproduced or stored in a way that is inconsistent with the terms of this Agreement.

13.2 Disclosure to Personnel

A party may disclose Confidential Information of the other party to its personnel if:

a) that personnel reasonably requires access to that Confidential Information for the purpose of the party performing its obligations under this Agreement; and

b) the party has informed that personnel that the Confidential Information is confidential and that the personnel is required to comply with the terms of this Agreement.

Notwithstanding anything in this Agreement, each party will remain liable for any breaches of clause 13.1 by its personnel.

13.3 Exceptions to Obligations

A party may disclose Confidential Information of the other party:

a) if disclosure of that Confidential Information is required to be made by Law or the rules of any regulatory authority, in which case the party must:

i) only disclose the minimum amount of information required to satisfy the law or rules of any regulatory authority; and

ii) to the extent reasonably practicable and permitted by law, before disclosing any information give reasonable notice to the other party and take reasonable steps to ensure that such information remains confidential;

b) to a prospective purchaser of shares or business assets, provided however that such disclosure is limited to the existence, and the terms of, this Agreement and only if the prospective purchaser has first entered into an agreement containing confidentiality obligations consistent with the terms of this Agreement;

c) to prosecute or defend any legal proceedings, or to otherwise enforce or protect the rights of a party arising out of or in connection with this Agreement; or

d) with the written consent of the other party.

14.1 Governing Law & Jurisdiction

This Agreement is governed by the laws of Western Australia.

The parties submit to the exclusive jurisdiction of the courts of Western Australia and any courts entitled to hear appeals from those courts.

14.2 Entire Agreement

This Agreement constitutes the entire agreement between the parties in relation to the hire of the Equipment and supersedes all prior negotiations, representations, or agreements, whether written or oral.

No amendment to this Agreement is binding unless made in writing and agreed by BAU.

14.3 Assignment & Sub-Hire

The Customer must not assign, novate, sub-hire, or otherwise deal with its rights or obligations under this Agreement without BAU’s prior written consent.

BAU may assign or novate this Agreement without the Customer’s consent.

14.4 Waiver

A waiver by BAU of any right or remedy under this Agreement must be in writing and is effective only to the extent expressly stated.

Failure by BAU to enforce any provision of this Agreement does not constitute a waiver of that provision or any other provision.

14.5 Severability

If any provision of this Agreement is held to be invalid, illegal, or unenforceable, that provision is severed and the remaining provisions remain in full force and effect.

14.6 Relationship of Parties

Nothing in this Agreement creates a partnership, joint venture, agency, or employment relationship between the parties.

The Customer has no authority to bind BAU.

14.7 Notices

Any notice required or permitted under this Agreement must be given in writing and may be given by:

a) email to the last known email address of the relevant party;

b) hand delivery; or

c) prepaid post to the last known address of the relevant party.

A notice is deemed received:

if delivered by hand, at the time of delivery;

if sent by email, at the time the email is sent, unless a delivery failure notice is received; or

if sent by post, three (3) business days after posting.

14.8 Counterparts & Electronic Acceptance

This Agreement may be executed or accepted electronically, including by electronic signature, email acceptance, or acceptance via BAU’s booking systems.

Such acceptance constitutes binding agreement to these Terms & Conditions.