Terms and Conditions . . .
Definitions
“EME” means Eco Mini Excavation Pty Ltd, its successors and assigns or any person acting on behalf of and with the authority of Eco Mini Excavation Pty Ltd.
“Client” means the person/s buying the Goods (and/or hiring Equipment) as specified in any invoice, document or order, and if there is more than one Client is a reference to each Client jointly and severally.
“Goods” means all Goods or Works supplied by EME to the Client at the Client’s request from time to time (where the context so permits the terms ‘Goods’ or ‘Works’ shall be interchangeable for the other).
“Equipment” means all Equipment, plant and/or tipper truck, including any accessories supplied on hire by EME to the Client (and where the context so permits shall include any supply of Works). The Equipment shall be as described on the invoices, quotation, authority to hire, or any other work authorisation form provided by EME to the Client.
“Minimum Hire Period” means the Minimum Hire Period as described on the invoices, quotation, authority to hire, or any other forms as provided by EME to the Client.
“Price” means the Price payable for the Goods and/or Equipment hire as agreed between EME and the Client in accordance with clause 4 below.
Acceptance
The Client is taken to have exclusively accepted and is immediately bound, jointly and severally, by these terms and conditions if the Client places an order for or accepts delivery of the Goods/Equipment.
These terms and conditions may only be amended with EME’s consent in writing and shall prevail to the extent of any inconsistency with any other document or agreement between the Client and EME.
The Client acknowledges and accepts that EME reserves the right to charge for travel delivery based either on EME’s hourly rate for time involved in travelling to the worksite and/or by the kilometer from the time that EME leaves their premises or from the last designated job, unless otherwise agreed between EME and the Client, all such costs will be shown as an extra on the invoice.
Where the designated jobsite is outside a twenty-five (25) kilometre radius from Brisbane CBD then the Works will be subject to a travel charge to and from the worksite. Float charges are applicable where the truck and plant trailer are required to transport machinery, such charges shall be invoiced in accordance with clause 4.2.
In the event that EME is required to provide the Works outside normal business hours (including but not limited to working, through lunch breaks, weekends and/or Public Holidays) then EME reserves the right to charge the Client a surcharge for additional labour costs (penalty rates will apply-ten percent (10%) for Saturdays, twenty percent (20%) for Sundays, Public Holidays and after six o’clock (6) weekdays), unless otherwise agreed between EME and the Client.
The Client accepts and acknowledges that fill that is to be removed from the site as “clean fill” must be free of contaminants, otherwise the Client will incur additional charges. Contaminants may include, but are not limited to, concrete, bricks, asbestos, fibro, tyres, builders rubbish, grass and vegetation.
Change in Control
The Client shall give EME not less than fourteen (14) days prior written notice of any proposed change of ownership of the Client and/or any other change in the Client’s details (including but not limited to, changes in the Client’s name, address, contact phone or fax number/s, or business practice). The Client shall be liable for any loss incurred by EME as a result of the Client’s failure to comply with this clause.
Price and Payment
At EME’s sole discretion the Price shall be either:
as indicated on any invoice provided by EME to the Client; or
EME’s quoted price (subject to clause 4.2) which will be valid for the period stated in the quotation or otherwise for a period of thirty (30) days.
EME reserves the right to change the Price:
if a variation to the Materials which are to supplied is requested; or
if a variation to the Works originally scheduled (including any applicable plans or specifications) is requested; or
where additional Works are required due to the discovery of hidden or unidentifiable difficulties (including, but not limited to, hard rock barriers below the surface, iron reinforcing rods in concrete, or hidden pipes and wiring in walls etc) which are only discovered on commencement of the Works; or
in the event of increases to EME in the cost of labour or materials which are beyond EME’s control.
At EME’s sole discretion a deposit may be required.
Time for payment for the Works being of the essence, the Price will be payable by the Client on the date/s determined by EME, which may be:
on completion of the Works; or
before completion of the Works; or
by way of progress payments in accordance with EME’s specified progress payment schedule. Such progress payment claims may include the reasonable value of authorised variations and the value of any Materials delivered to the site but not yet installed; or
the date specified on any invoice or other form as being the date for payment; or
failing any notice to the contrary, the date which is seven (7) days following the date of any invoice given to the Client by EME.
Payment may be made by cash, cheque, bank cheque, electronic/on-line banking, credit card (plus a surcharge of up to two and a half percent (2.5%) of the Price), or by any other method as agreed to between the Client and EME.
No allowance has been made in the Price for the deduction of retentions. In the event that retentions are made, EME reserves the right to treat retentions as placing the Client’s account into default.
Unless otherwise stated the Price does not include GST. In addition to the Price the Client must pay to EME an amount equal to any GST EME must pay for any supply by EME under this or any other agreement for the sale of the Goods/hire of the Equipment. The Client must pay GST, without deduction or set off of any other amounts, at the same time and on the same basis as the Client pays the Price. In addition the Client must pay any other taxes and duties that may be applicable in addition to the Price except where they are expressly included in the Price.
Delivery of Goods/Equipment
Delivery (“Delivery”) of the Goods/Equipment is taken to occur at the time that:
the Client or the Client’s nominated carrier takes possession of the Goods/Equipment at EME’s address; or
EME (or EME’s nominated carrier) delivers the Goods/Equipment to the Client’s nominated address even if the Client is not present at the address.
At EME’s sole discretion the cost of delivery is either included in the Price or is in addition to the Price.
Subject to clause 5.4 it is EME’s responsibility to ensure that the Works start as soon as it is reasonably possible.
The Works commencement date will be put back and/or the completion date extended by whatever time is reasonable in the event that EME claims an extension of time (by giving the Client written notice) where completion is delayed by an event beyond EME’s control, including but not limited to any failure by the Client to:
make a selection; or
have the site ready for the Works; or
notify EME that the site is ready.
EME reserves the right to amend the delivery date and the completion date due to circumstances beyond its control (including, but not limited to) breakdowns, inclement weather, staffing issues or any other like matters.
The Client must take delivery by receipt or collection of the Goods/Equipment whenever either is tendered for delivery. In the event that the Client is unable to take delivery of the Goods/Equipment as arranged then EME shall be entitled to charge a reasonable fee for redelivery of the Goods/Equipment and/or the storage of the Goods.
EME may deliver the Goods/Equipment in separate instalments. Each separate instalment shall be invoiced and paid in accordance with the provisions in these terms and conditions.
Any time or date given by EME to the Client is an estimate only. The Client must still accept delivery of the Goods/Equipment even if late and EME will not be liable for any loss or damage incurred by the Client as a result of the delivery being late.
Risk
Risk of damage to or loss of the Goods passes to the Client on Delivery and the Client must insure the Goods on or before Delivery.
If any of the Goods are damaged or destroyed following delivery but prior to ownership passing to the Client, EME is entitled to receive all insurance proceeds payable for the Goods. The production of these terms and conditions by EME is sufficient evidence of EME’s rights to receive the insurance proceeds without the need for any person dealing with EME to make further enquiries.
If the Client requests EME to leave Goods outside EME’s premises for collection or to deliver the Goods to an unattended location then such Goods shall be left at the Client’s sole risk.
Access/Damage
The Client shall ensure that EME has clear and free access to the Work site at all times to enable them to undertake the Works. EME shall not be liable for any loss or damage to the site (including, without limitation, damage to pathways, driveways and concreted or paved or grassed areas) unless due to the negligence of EME
EME reserves the right to override the Client’s instructions regarding access, if, in EME’s opinion the access instructions provided are unsafe for entry.
Hidden Locations
Prior to EME commencing any Work the Client must advise EME of the precise location of all underground services on the site and clearly mark the same. The underground mains & services the Client must identify include, but are not limited to, electrical services, gas services, sewer services, pumping services, sewer connections, sewer sludge mains, water mains, irrigation pipes, telephone cables, fibre optic cables, oil pumping mains, and any other services that may be on site.
Whilst EME will take all care to avoid damage to any underground services the Client agrees to indemnify EME in respect of all and any liability claims, loss, damage, costs and fines as a result of damage to services not precisely located and notified as per clause 8.1.
Furthermore, in the event conditions are encountered on the site which are subsurface or otherwise concealed physical conditions which differ materially from those contemplated, or physical conditions of an unusual nature are encountered and cause a furtherance to EME in time or materials, EME will be entitled to an equitable adjustment in the contract Price in accordance with clause 5.3, an extension of the completion date, or both by change order. Removal of any material that cannot be removed by use of machinery using conventional methods such as digging with a 600 mm wide bucket is not included and an additional charge will apply. Examples of such materials are, but are not limited to, rock, concrete, buried rubbish, tree stumps, etc.
Insurance
EME shall have public liability insurance of at least $5m. It is the Clients responsibility to ensure that they are similarly insured.
Title To Goods
EME and the Client agree that ownership of the Goods shall not pass until:
the Client has paid EME all amounts owing to EME; and
the Client has met all of its other obligations to EME.
Receipt by EME of any form of payment other than cash shall not be deemed to be payment until that form of payment has been honoured, cleared or recognised.
It is further agreed that:
until ownership of the Goods passes to the Client in accordance with clause 10.1 that the Client is only a bailee of the Goods and must return the Goods to EME on request.
the Client holds the benefit of the Client’s insurance of the Goods on trust for EME and must pay to EME the proceeds of any insurance in the event of the Goods being lost, damaged or destroyed.
the Client must not sell, dispose, or otherwise part with possession of the Goods other than in the ordinary course of business and for market value. If the Client sells, disposes or parts with possession of the Goods then the Client must hold the proceeds of any such act on trust for EME and must pay or deliver the proceeds to EME on demand.
the Client should not convert or process the Goods or intermix them with other goods but if the Client does so then the Client holds the resulting product on trust for the benefit of EME and must sell, dispose of or return the resulting product to EME as it so directs.
the Client irrevocably authorises EME to enter any premises where EME believes the Goods are kept and recover possession of the Goods.
EME may recover possession of any Goods in transit whether or not delivery has occurred.
the Client shall not charge or grant an encumbrance over the Goods nor grant nor otherwise give away any interest in the Goods while they remain the property of EME.
EME may commence proceedings to recover the Price of the Goods sold notwithstanding that ownership of the Goods has not passed to the Client.
Personal Property Securities Act 2009 (“PPSA”)
In this clause financing statement, financing change statement, security agreement, and security interest has the meaning given to it by the PPSA.
Upon assenting to these terms and conditions in writing the Client acknowledges and agrees that these terms and conditions constitute a security agreement for the purposes of the PPSA and creates a security interest in all Goods/Equipment that has previously been supplied and that will be supplied in the future by EME to the Client.
The Client undertakes to:
promptly sign any further documents and/or provide any further information (such information to be complete, accurate and up-to-date in all respects) which EME may reasonably require to;
register a financing statement or financing change statement in relation to a security interest on the Personal Property Securities Register;
register any other document required to be registered by the PPSA; or
correct a defect in a statement referred to in clause 11.3(a)(i) or 11.3(a)(ii);
indemnify, and upon demand reimburse, EME for all expenses incurred in registering a financing statement or financing change statement on the Personal Property Securities Register established by the PPSA or releasing any Goods/Equipment charged thereby;
not register a financing change statement in respect of a security interest without the prior written consent of EME;
not register, or permit to be registered, a financing statement or a financing change statement in relation to the Goods/Equipment in favour of a third party without the prior written consent of EME;
immediately advise EME of any material change in its business practices of selling Goods which would result in a change in the nature of proceeds derived from such sales.
EME and the Client agree that sections 96, 115 and 125 of the PPSA do not apply to the security agreement created by these terms and conditions.
The Client waives their rights to receive notices under sections 95, 118, 121(4), 130, 132(3)(d) and 132(4) of the PPSA.
The Client waives their rights as a grantor and/or a debtor under sections 142 and 143 of the PPSA.
Unless otherwise agreed to in writing by EME, the Client waives their right to receive a verification statement in accordance with section 157 of the PPSA.
The Client must unconditionally ratify any actions taken by EME under clauses 11.3 to 11.5.
Subject to any express provisions to the contrary nothing in these terms and conditions is intended to have the effect of contracting out of any of the provisions of the PPSA.
Security and Charge
In consideration of EME agreeing to supply the Goods/Equipment, the Client charges all of its rights, title and interest (whether joint or several) in any land, realty or other assets capable of being charged, owned by the Client either now or in the future, to secure the performance by the Client of its obligations under these terms and conditions (including, but not limited to, the payment of any money).
The Client indemnifies EME from and against all EME’s costs and disbursements including legal costs on a solicitor and own client basis incurred in exercising EME’s rights under this clause.
The Client irrevocably appoints EME and each director of EME as the Client’s true and lawful attorney/s to perform all necessary acts to give effect to the provisions of this clause 12 including, but not limited to, signing any document on the Client’s behalf.
Defects, Warranties and Returns, Competition and Consumer Act 2010 (CCA)
The Client must inspect the Goods/Equipment on delivery and must within seven (7) days of delivery notify EME in writing of any evident defect/damage, shortage in quantity, or failure to comply with the description or quote. The Client must notify any other alleged defect in the Goods/Equipment as soon as reasonably possible after any such defect becomes evident. Upon such notification the Client must allow EME to inspect the Goods/Equipment.
The Client acknowledges and accepts that where EME is notified of any breakdown with the Equipment that EME will endeavour to (at their sole discretion) either repair the Equipment on-site or provide replacement Equipment as soon as reasonable possible. EME shall not be liable for any direct, indirect and/or consequential loss and/or expense (including loss of profit) suffered by the Client arising out of any delay in replacing the Equipment due to the unavailability of the necessary replacement Equipment).
Under applicable State, Territory and Commonwealth Law (including, without limitation the CCA), certain statutory implied guarantees and warranties (including, without limitation the statutory guarantees under the CCA) may be implied into these terms and conditions (Non-Excluded Guarantees).
EME acknowledges that nothing in these terms and conditions purports to modify or exclude the Non-Excluded Guarantees.
Except as expressly set out in these terms and conditions or in respect of the Non-Excluded Guarantees, EME makes no warranties or other representations under these terms and conditions including but not limited to the quality or suitability of the Goods/Equipment. EME’s liability in respect of these warranties is limited to the fullest extent permitted by law.
If the Client is a consumer within the meaning of the CCA, EME’s liability is limited to the extent permitted by section 64A of Schedule 2.
If EME is required to replace the Goods under this clause or the CCA, but is unable to do so, EME may refund any money the Client has paid for the Goods.
If the Client is not a consumer within the meaning of the CCA, EME’s liability for any defect or damage in the Goods is:
limited to the value of any express warranty or warranty card provided to the Client by EME at EME’s sole discretion;
limited to any warranty to which EME is entitled, if EME did not manufacture the Goods;
otherwise negated absolutely.
Subject to this clause 13, returns will only be accepted provided that:
the Client has complied with the provisions of clause 13.1; and
EME has agreed that the Goods are defective; and
the Goods are returned within a reasonable time at the Client’s cost (if that cost is not significant); and
the Goods are returned in as close a condition to that in which they were delivered as is possible.
Notwithstanding clauses 13.1 to 13.9 but subject to the CCA, EME shall not be liable for any defect or damage which may be caused or partly caused by or arise as a result of:
the Client failing to properly maintain or store any Goods/Equipment;
the Client using the Goods/Equipment for any purpose other than that for which they were designed;
the Client continuing the use of the Goods/Equipment after any defect became apparent or should have become apparent to a reasonably prudent operator or user;
the Client failing to follow any instructions or guidelines provided by EME;
fair wear and tear, any accident, or act of God.
In the case of second hand Goods, unless the Client is a consumer under the CCA, the Client acknowledges that it has had full opportunity to inspect the second hand Goods prior to delivery and accepts them with all faults and that to the extent permitted by law no warranty is given by EME as to the quality or suitability for any purpose and any implied warranty, statutory or otherwise, is expressly excluded. The Client acknowledges and agrees that EME has agreed to provide the Client with the second hand Goods and calculated the Price of the second hand Goods in reliance of this clause 13.11.
EME may in its absolute discretion accept non-defective Goods for return in which case EME may require the Client to pay handling fees of up to ten percent (10%) of the value of the returned Goods plus any freight costs.
Notwithstanding anything contained in this clause if EME is required by a law to accept a return then EME will only accept a return on the conditions imposed by that law.
Intellectual Property
Where EME has designed, drawn or developed Goods/Equipment for the Client, then the copyright in any designs and drawings and documents shall remain the property of EME.
The Client warrants that all designs, specifications or instructions given to EME will not cause EME to infringe any patent, registered design or trademark in the execution of the Client’s order and the Client agrees to indemnify EME against any action taken by a third party against EME in respect of any such infringement.
The Client agrees that EME may (at no cost) use for the purposes of marketing or entry into any competition, any documents, designs, drawings or Goods which EME has created for the Client.
Default and Consequences of Default
Interest on overdue invoices shall accrue daily from the date when payment becomes due, until the date of payment, at a rate of two and a half percent (2.5%) per calendar month (and at EME’s sole discretion such interest shall compound monthly at such a rate) after as well as before any judgment.
If the Client owes EME any money the Client shall indemnify EME from and against all costs and disbursements incurred by EME in recovering the debt (including but not limited to internal administration fees, legal costs on a solicitor and own client basis, EME’s contract default fees, and bank dishonour fees).
Without prejudice to any other remedies EME may have, if at any time the Client is in breach of any obligation (including those relating to payment) under these terms and conditions EME may suspend or terminate the supply of Goods/Equipment to the Client. EME will not be liable to the Client for any loss or damage the Client suffers because EME has exercised its rights under this clause.
Without prejudice to EME’s other remedies at law EME shall be entitled to cancel all or any part of any order of the Client which remains unfulfilled and all amounts owing to EME shall, whether or not due for payment, become immediately payable if:
any money payable to EME becomes overdue, or in EME’s opinion the Client will be unable to make a payment when it falls due;
the Client becomes insolvent, convenes a meeting with its creditors or proposes or enters into an arrangement with creditors, or makes an assignment for the benefit of its creditors; or
a receiver, manager, liquidator (provisional or otherwise) or similar person is appointed in respect of the Client or any asset of the Client.
Compliance with Laws
The Client and EME shall comply with the provisions of all statutes, regulations and bylaws of government, local and other public authorities that may be applicable to the Works.
The Client shall obtain (at the expense of the Client) all licenses and approvals that may be required for the Works.
The Client agrees that the site will comply with any occupational health and safety laws relating to building/construction sites and any other relevant safety standards or legislation.
Cancellation
EME may cancel any contract to which these terms and conditions apply or cancel delivery of Goods/Equipment at any time before the Goods/Equipment are due to be delivered by giving written notice to the Client. On giving such notice EME shall repay to the Client any money paid by the Client for the Goods/Equipment. EME shall not be liable for any loss or damage whatsoever arising from such cancellation.
In the event that the Client cancels delivery of the Goods/Equipment the Client will be liable for any and all loss incurred (whether direct or indirect) by EME as a direct result of the cancellation (including, but not limited to, any loss of profits).
Cancellation of orders for Goods/Equipment made to the Client’s specifications, or for non-stocklist items, will definitely not be accepted once production has commenced, or an order has been placed.
Privacy Act 1988
The Client agrees for EME to obtain from a credit reporting agency a credit report containing personal credit information about the Client in relation to credit provided by EME.
The Client agrees that EME may exchange information about the Client with those credit providers either named as trade referees by the Client or named in a consumer credit report issued by a credit reporting agency for the following purposes:
to assess an application by the Client; and/or
to notify other credit providers of a default by the Client; and/or
to exchange information with other credit providers as to the status of this credit account, where the Client is in default with other credit providers; and/or
to assess the creditworthiness of the Client.
The Client understands that the information exchanged can include anything about the Client’s creditworthiness, credit standing, credit history or credit capacity that credit providers are allowed to exchange under the Privacy Act 1988.
The Client consents to EME being given a consumer credit report to collect overdue payment on commercial credit (Section 18K(1)(h) Privacy Act 1988).
The Client agrees that personal credit information provided may be used and retained by EME for the following purposes (and for other purposes as shall be agreed between the Client and EME or required by law from time to time):
the provision of Goods/Equipment; and/or
the marketing of Goods/Equipment by EME, its agents or distributors; and/or
analysing, verifying and/or checking the Client’s credit, payment and/or status in relation to the provision of Goods/Equipment; and/or
processing of any payment instructions, direct debit facilities and/or credit facilities requested by the Client; and/or
enabling the daily operation of Client’s account and/or the collection of amounts outstanding in the Client’s account in relation to the Goods/Equipment.
EME may give information about the Client to a credit reporting agency for the following purposes:
to obtain a consumer credit report about the Client;
allow the credit reporting agency to create or maintain a credit information file containing information about the Client.
The information given to the credit reporting agency may include:
personal particulars (the Client’s name, sex, address, previousaddresses, date of birth, name of employer and driver’s licence number);
details concerning the Client’s application for credit or commercial credit and the amount requested;
advice that EME is a current credit provider to the Client;
advice of any overdue accounts, loan repayments, and/or any outstanding monies owing which are overdue by more than sixty (60) days, and for which debt collection action has been started;
that the Client’s overdue accounts, loan repayments and/or any outstanding monies are no longer overdue in respect of any default that has been listed;
information that, in the opinion of EME, the Client has committed a serious credit infringement (that is, fraudulently or shown an intention not to comply with the Client’s credit obligations);
advice that cheques drawn by the Client for one hundred dollars ($100) or more, have been dishonoured more than once;
that credit provided to the Client by EME has been paid or otherwise discharged.
Unpaid Seller’s Rights
Where the Client has left any item with EME for repair, modification, exchange or for EME to perform any other service in relation to the item and EME has not received or been tendered the whole of any moneys owing to it by the Client, EME shall have, until all moneys owing to EME are paid:
a lien on the item; and
the right to retain or sell the item, such sale to be undertaken in accordance with any legislation applicable to the sale or disposal of uncollected goods.
The lien of EME shall continue despite the commencement of proceedings, or judgment for any moneys owing to EME having been obtained against the Client.
Building and Construction Industry Payments Act 2004
At EME’s sole discretion, if there are any disputes or claims for unpaid Materials and/or Works then the provisions of the Building and Construction Industry Payments Act 2004 may apply.
Nothing in this agreement is intended to have the affect of contracting out of any applicable provisions of the Building and Construction Industry Payments Act 2004 of Queensland, except to the extent permitted by the Act where applicable.
General
The failure by EME to enforce any provision of these terms and conditions shall not be treated as a waiver of that provision, nor shall it affect EME’s right to subsequently enforce that provision. If any provision of these terms and conditions shall be invalid, void, illegal or unenforceable the validity, existence, legality and enforceability of the remaining provisions shall not be affected, prejudiced or impaired.
These terms and conditions and any contract to which they apply shall be governed by the laws of the state in which EME has its principal place of business, and are subject to the jurisdiction of the Brisbane Courts in that state.
Subject to clause 13 EME shall be under no liability whatsoever to the Client for any indirect and/or consequential loss and/or expense (including loss of profit) suffered by the Client arising out of a breach by EME of these terms and conditions (alternatively EME’s liability shall be limited to damages which under no circumstances shall exceed the Price of the Goods/Equipment hire).
The Client shall not be entitled to set off against, or deduct from the Price, any sums owed or claimed to be owed to the Client by EME nor to withhold payment of any invoice because part of that invoice is in dispute.
EME may license or sub-contract all or any part of its rights and obligations without the Client’s consent.
The Client agrees that EME may amend these terms and conditions at any time. If EME makes a change to these terms and conditions, then that change will take effect from the date on which EME notifies the Client of such change. The Client will be taken to have accepted such changes if the Client makes a further request for EME to provide Goods/Equipment to the Client.
Neither party shall be liable for any default due to any act of God, war, terrorism, strike, lock-out, industrial action, fire, flood, storm or other event beyond the reasonable control of either party.
The Client warrants that it has the power to enter into this agreement and has obtained all necessary authorisations to allow it to do so, it is not insolvent and that this agreement creates binding and valid legal obligations on it.
Additional Terms & Conditions Applicable to Hire Only
Minimum Hire Period
Minimum rates including travel apply for Equipment as follows:
Articulated Loader – 3hrs (2hrs work + 1hr travel)
Tipper Truck 5hrs – (4hrs + 1hr travel)
3ton Excavator – 3hrs (2hrs work + 1hr travel)
Mowing/Slashing – 4hrs (3hrs work + 1hr travel)
If EME agrees with the Client to deliver and/or collect the Equipment, hire charges shall commence from the time the Equipment leaves EME’s premises and continue until the Client notifies EME that the Equipment is available for collection, and/or until the expiry of the Minimum Hire Period, whichever last occurs.
No allowance whatsoever can be made for time during which the Equipment is not in use for any reason, unless EME confirms special prior arrangements in writing. In the event of Equipment breakdown provided the Client notifies EME immediately, hiring charges will not be payable during the time the Equipment is not working, unless the condition is due to negligence or misuse on the part of or attributable to the Client.
Risk to Equipment
EME retains property in the Equipment nonetheless all risk for the Equipment passes to the Client on delivery.
The Client accepts full responsibility for the safekeeping of the Equipment and indemnifies EME for all loss, theft, or damage to the Equipment howsoever caused and without limiting the generality of the foregoing whether or not such loss, theft, or damage is attributable to any negligence, failure, or omission of the Client.
The Client will insure, or self-insure, EME’s interest in the Equipment against physical loss or damage including, but not limited to, the perils of accident, fire, theft and burglary and all other usual risks and will effect adequate Public Liability Insurance covering any loss, damage or injury to property arising out of the Equipment. Further the Client will not use the Equipment nor permit it to be used in such a manner as would permit an insurer to decline any claim.
The Client accepts full responsibility for and shall keep EME indemnified against all liability in respect of all actions, proceedings, claims, damages, costs and expenses in respect of any injury to persons, damage to property, or otherwise arising out of the use of the Equipment during the hire period and whether or not arising from any negligence, failure or omission of the Client or any other persons.
Title to Equipment
The Equipment is and will at all times remain the absolute property of EME.
If the Client fails to return the Equipment to EME then EME or EME’s agent may (as the invitee of the Client) enter upon and into land and premises owned, occupied or used by the Client, or any premises where the Equipment is situated and take possession of the Equipment, without being responsible for any damage thereby caused.
The Client is not authorised to pledge EME’s credit for repairs to the Equipment or to create a lien over the Equipment in respect of any repairs.
Wet Hire
In the event of “wet” hire of the Equipment the operator of the Equipment remains an employee of EME and operates the Equipment in accordance with the Client’s instructions. As such EME shall not be liable for any actions of the operator in following the Client’s instructions.
Cancellation
In the event that the Client cancels delivery of the Equipment the Client must advise EME verbally at least two hours in advance or travel changes will apply.
Notwithstanding clause 5.3, in the event of rain on the morning of delivery, no Equipment will be dispatched until confirmation is received from the Client. Where Equipment has been confirmed for dispatch and then cancelled on site, minimum hire rates will apply.