1.1 “Lift and Dig”, means Lift & Dig Equipment Hire Pty Ltd (“ LDEH”) its successors and assigns or any person acting on behalf of and with the authority of Lift and Dig Equipment Hire Pty Ltd and may variously be referred to also as the supplier of the Equipment.
1.2 “Customer” means and includes the Customer as named in the Schedule or any employee, agent, contractor or person acting on behalf of and with the written authority of the Customer and may variously be referred to as the hirer. Authorised persons acting for or on behalf of the Customer may be required to produce relevant and current ID when called upon by LDEH.
1.3 “Equipment” means all Equipment (including any supplied or fitted accessories) provided by LDEH on hire to the Customer (and where the context so permits shall include any incidental supply of services at all or any time when the goods are with the Customer on hire). The Equipment shall be as described on the invoices, quotation, authority to hire, or any other work authorisation forms as provided by LDEH to the Customer and in the Schedule.
1.4 “Minimum Hire Period” means the minimum hire period as described on the invoices, quotation, authority to hire, or any other work forms as provided by LDEH to the Customer and the Schedule.
1.5 “Price” means the total cost of the hire of the equipment as agreed between LDEH and the Customer and as set out in the Schedule and clause 4 of these terms and conditions.
1.6 “Services” means and includes any items identified in the Schedule including but not limited to delivery, attending on the Customer or at the site nominated by the Customer for the hiring, and delivering additional accessories by the supplier or as arranged by the supplier and/or fittings for the hirer, and all matters incidental to the hire.
1.7 “Hire Period” means the period as described at clause 5 and where shown in the Schedule and where reference is made to a date or day, such date or day may include public holidays and / or weekends.
1.8 “Quotation” means and includes a written quotation provided by LDEH and any variation provided by LDEH.
1.9 “Schedule” means and includes any schedule attached to these terms and conditions forming the agreement between the Parties.
1.10 “Parties” means the Customer and those named in the Schedule in addition to LDEH
2. The Commonwealth Competition and Consumer Act 2010 (“CCA”) and Fair-Trading Acts (“FTA”)
2.1 Nothing in this agreement is intended to have the effect of contracting out of any applicable provisions of the CCA or the FTA (NSW) (including any substitute for those Acts or re-enactment thereof), except to the extent permitted by those Acts where applicable.
2.2 Where the Customer hires equipment these terms and conditions shall be subject to any laws or legislation governing the right of consumers and shall not affect those rights.
2.3 Without limitation, the Customer agrees to act in good faith always and in the event of any dispute arising, agrees to attempt to resolve the dispute by conciliation or mediation at first instance, and the Customer and the supplier both agree to use their best endeavours and to co-operate in any dispute resolution process.
2.4 The Customer and LDEH agree that the courts of New South Wales will be the exclusive jurisdiction for the resolution of any legal process / litigation arising as a result of this contract.
3.1 Any instructions received by LDEH from the Customer for the hire of Equipment and/or the Customer’s acceptance of Equipment supplied on hire by LDEH shall constitute acceptance of the terms and conditions contained herein.
3.2 Where more than one Customer has entered into this agreement, the Customers shall be jointly and severally liable for payment of the Price.
3.3 Upon acceptance of these terms and conditions by the Customer ,the Customer acknowledges these terms and conditions are irrevocable and can only be amended with the written consent of LDEH.
3.4 The Customer shall give LDEH not less than fourteen (14) days prior written notice of any proposed change of ownership of the Customer or any change in the Customer’s name and/or any other change in the Customer’s details (including but not limited to, changes in the Customer’s address, fax number, or business practice and site where the Equipment is located while in the Customer’s care and control). The Customer shall be liable for any loss incurred by LDEH because of the Customer’s failure to comply with this clause.
3.5 Equipment is supplied by LDEH based on these written terms and conditions of hire and to the exclusion of anything to the contrary in the Customer’s order, and whether orally or in writing from the Customer (such as a hand-written note or email) unless expressly agreed and accepted by LDEH in writing and as provided for in these terms and conditions and notwithstanding that any such order is placed on terms that purport to override these terms and conditions of hire.
4. Price and Payment
4.1 LDEH in its sole discretion may determine the price which will be either:
(a) As specified in the Schedule and on invoices as provided by LDEH to the Customer; or
(b) LDEH quoted price (subject to clause 4.2) which shall be binding upon LDEH provided that the Customer shall accept in writing LDEH quotation within sixty (60) days of the quotation date.
4.2 LDEH reserves the right to vary the price of the hire of the Equipment in the event of any variation to the supplier’s quotation requested by or caused by the Customer (e.g. delay in return of goods, or extending the time for hire, or variation or replacement to the Equipment). Any variation from a plan or specification provided by the Customer and included in the quotation (Including, but not limited to, any variation due to unforeseen circumstances, or due to adverse weather conditions, or as a result of increases to LDEH in the cost of materials and labour supplied) will be charged for by LDEH and will be shown as variations to the quotation on the invoice. Payment for all variations must be made in full at the time of completion of the contract.
4.3 LDEH may in its sole discretion require a non-refundable deposit.
4.4 LDEH may in its sole discretion require a bond from the Customer which shall be refunded upon return of the equipment in good order and condition acceptable to LDEH, fair wear and tear excepted.
4.5 Time for payment for the equipment shall be of the essence and will be stated on the invoice or any other forms. If no time is stated, then payment shall be due thirty (30) days following the date of the invoice.
4.6 Payment will be made by cash, or by cheque, or by credit card, or by direct debit, or by any other method including EFT and as agreed to between the Customer and LDEH. The supplier is not responsible for any Customer’s loss occasioned by error or mistake on the part of the Customer in the payment process.
4.7 Receipt by LDEH of any form of payment other than cash shall not be deemed to be payment by the Customer until that form of payment has been honoured, cleared or recognised by LDEH and/or its bank.
4.8 GST and other taxes and duties that may be applicable shall be added to the Price except when they are expressly included in the Price.
5. Hire Period
5.1 If LDEH agrees with the Customer in writing to deliver and/or collect the Equipment, hire charges shall commence from the time the Equipment leaves LDEH premises and continue until the Customer notifies LDEH that the equipment is available for collection, or/and until the expiry of the minimum hire period, whichever last occurs.
5.2 The date upon which the Customer advises of termination shall in all cases be treated as a full day’s hire, except where the equipment is returned after 11am for normal hire, or after 8am for off-hire.
5.3 No allowance whatsoever is required to be made by the supplier for time during which the equipment is not in use by the Customer or lost by the Customer during the Minimum Hire Period for any reason, unless LDEH confirms its acceptance of any allowance in writing. In the event of equipment failure, the Customer must notify LDEH immediately, whereupon hiring charges may be suspended during the time the equipment is not working, unless the failure is due to negligence or misuse or mishandling of the Equipment on the part of or attributable to the Customer.
5.4 Daily hire is based on a 24-hour time period. Hire commences at the time the Equipment leaves the LDEH depot to the time it is returned to the LDEH depot. When a pick-up has been agreed the hire will expire at the time the Customer notifies LDEH that they wish to off hire the equipment.
5.5 Weekly hire is based on a 7-day period. Hire commences at 8am the first day of hire and expires at 7am on the 8th day
5.6 Weekend hire commences 8am Saturday and expires 7am the following Monday.
5.7 Additional hire periods will be charged at minimum 4 hours at 50% of the daily hire rate. Time exceeding this will be charged at the full day hire rate
6. Delivery of the Equipment
6.1 At LDEH sole discretion, delivery of the equipment shall take place when:
(a) The Customer takes possession of the equipment at LDEH address: or
(b) The Customer takes possession of the equipment at the Customers address
6.2 At LDEH sole discretion, the costs of the delivery are:
(a) in addition to the Price; and
(b) for the Customer’s account and may be included in LDEH invoicing;
6.3 The Customer shall make all arrangements necessary to take delivery of the Equipment whenever it is tendered for delivery. In the event that the Customer is unable to take delivery of the Equipment as arranged then LDEH in its sole discretion shall be entitled to charge a reasonable fee for re-delivery at another time. In no circumstance will LDEH be liable for any loss or damage to the Customer occasioned by a change in the delivery time or location.
6.4 LDEH may deliver the Equipment by separate instalments. Each separate instalment shall be invoiced and paid for in accordance with the provisions in these terms and conditions.
6.5 Delivery of the Equipment to a third party nominated by the Customer is deemed to be delivery to the Customer for the purpose of this agreement.
6.6 The Customer shall be responsible for free access by LDEH to the site where the Equipment is located. If there are any delays due to free access not being available to LDEH, then the Customer shall be responsible and shall reimburse LDEH for all lost hire fees associated with the Equipment being unavailable and/or not accessible. The Customer shall be responsible for all other expenses and costs incurred by LDEH attempting to access and / or retrieve the Equipment. An off-hire receipt will only be issued when the Equipment is picked up by LDEH or returned to LDEH premises.
6.7 Any failure of LDEH to deliver the Equipment shall not entitle the hirer to treat this contract as repudiated.
6.8 LDEH shall not be liable for any loss or damage whatsoever due to failure by LDEH to deliver the equipment (or any of it) promptly, or at all, due to circumstances beyond the control of LDEH, and including but not limited to prevailing weather conditions.
7.1 LDEH retains property in the Equipment provided that the responsibility for the safe-keeping of which and all risk for the Equipment passes to the Customer on delivery.
7.2 The Customer accepts full responsibility for the safe keeping of the Equipment while in its possession, custody and control and indemnifies LDEH for all or any 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 on the part of the Customer or any third party or person or entity on behalf of the Customer and the Customer acknowledges and accepts that it will be bear the onus of proving any such loss or damage was not so caused.
8. Damage Waiver/Insurance
8.1 Unless the damage waiver box in the Schedule is marked “Not Required” (N/R) and initialled by the Customer then damage waiver charges will apply. The damage waiver excess for each item of Equipment is the amount equal to five hundred dollars ($500) or (if the reasonable replacement cost of the Equipment is less than five hundred dollars ($500) the replacement cost of the Equipment; or fifteen (15%) of the cost of the repairs (if the Equipment is partially damaged and can be repaired) or fifteen percent (15%) of the full new replacement cost of the Equipment (if the Equipment is lost, stolen or damaged beyond repair and written-off), whichever is greater.
The damage waiver shall not apply to damage to the Equipment in the following circumstances, and the Customer will be responsible for, and will indemnify LDEH (without limitation) against any loss or damage in the case of all Equipment for and including damage caused by or to the following:
(a) Any batteries: or
(b) Any tyres and tubes: or
(c) Any accessories: or
(d) Any Equipment which is used for a purpose for which it was not designed: or
(e) The use or operation of Equipment in violation of any statute (Commonwealth or State) or any regulation or by-law hereunder, or any applicable By-Laws imposed by a local authority: or
(f) Misappropriation causing damage or wrongful conversion by the Customer or its employees, servants, sub-contractors or agents, or any other third party to whom the Equipment is entrusted by the hirer: or
(g) The use or operation of the Equipment in contravention of any terms of this hire agreement: or
(h) Overloading, or exceeding the rated capacity of the Equipment, other misuse, abuse or improper servicing of the Equipment: or
(i) Damage to the Equipment, occurring whilst the Equipment is located, unloaded or transported on, over or near water (including but not limited to, places such as wharfs, bridges, barges and vessels of all kinds): or
(j) Motors or other electrical equipment or components within the Equipment caused by electrical overload, a surge in electrical current or the use of under-rated or excessive lengths of extension leads with electrical equipment: or
(k) Unreasonable or lengthy exposure to any corrosive substance such as but not limited to cyanide, salt water and acid.
8.2 On acceptance by the Customer of the damage waiver, the Customer shall be covered by LDEH Contractors Plant Policy subject always to the terms and conditions of that policy, a copy of which is available from LDEH at the time at the time of the hire. The Customer acknowledges and agrees to comply with the conditions of LDEH Contractors Plant Policy.
8.3 In the event that the Customer opts not to pay LDEH any damage waiver amount due and declines to accept that provision in this agreement then the Customer must insure LDEH 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 or persons arising out of the use of the Equipment. Further, the Customer will not use the Equipment or permit it to be used in such a manner as would permit an insurer to decline any claim. The Customer will upon request make available to LDEH a copy of any relevant insurance policy pursuant to this clause and inform and keep informed LDEH of all details of any claim relating to LDEH Equipment, and the Customer acknowledges that a breach of this clause will entitle LDEH in its sole discretion to terminate any hire agreement with the Customer.
8.4 Where no damage waiver has been paid by the Customer, the Customer accepts full responsibility for and shall keep LDEH indemnified against all liability in respect of any action, proceeding, claim, damages, costs and expenses in respect of any injury to persons or damage to property arising out of the use of the Equipment during the Minimum Hire Period and any extended period and while the Equipment is in the possession, custody and control of the Customer and however arising and whether or not arising from any negligence, failure or omission of the Customer or any other persons or entity
8.5 Where no damage waiver has been paid by the Customer then the Customer shall immediately on request by LDEH pay:
(a) The new list price of any Equipment that is for whatever reason destroyed, written off or not returned to LDEH;
(b) All costs of repairing any damage caused by the ordinary use of the Equipment by the Customer up to an amount equal to ten percent (10%) of the new list price of the Equipment;
(c) The cost of repairing any damage to the Equipment caused by the negligence of the Customer of the Customer’s agent;
(d) The cost of repairing any damage to the Equipment caused by vandalism, or (in LDEH reasonable opinion) in any way whatsoever other than by the ordinary use of the Equipment by the Customer.
9.1 The Equipment is and will at all times remain the absolute property of LDEH.
9.2 If the Customer fails to return the equipment to LDEH then LDEH or LDEH agent may (as the invitee of the Customer) enter upon and onto land and premises owned, occupied or used by the Customer or any premises where the Equipment is situated and take possession of the Equipment, without being responsible for any damage thereby caused.
9.3 The Customer is not authorised to pledge LDEH credit for repairs to the Equipment or to create a lien over the Equipment in respect of any repairs.
10.1 The Customer shall inspect the Equipment on delivery and shall within twenty-four (24) hours notify LDEH of any alleged defect, shortage in quantity, damage or failure to comply with the description or quote and the Schedule. The Customer shall afford LDEH an opportunity to inspect the Equipment within a reasonable time following delivery if the Customer believes the Equipment is defective in any way. If the Customer shall fail to comply with these provisions the Equipment shall be presumed to be free from any defect or damage. For defective Equipment, which LDEH has agreed in writing that the Customer is entitled to reject, LDEH liability is limited to either repairing or replacing the Equipment, except where the Customer has hired Equipment as a consumer within the meaning of the Competition and Consumer Act 2010 (CWlth) or the Fair Trading Acts of the relevant state or territories of Australia, and may therefore also be entitled to, either a refund of the hire price of the Equipment or repair of the Equipment, or replacement of the Equipment.
11. Customer’s Responsibilities
11.1 The Customer shall;
(a) Notify LDEH immediately including by telephone of the full circumstances of any mechanical breakdown or accident. The Customer is not absolved from the requirements to safeguard the Equipment by giving such notification;
(b) Satisfy itself at commencement that the Equipment is suitable for its purposes;
(c) Operate the Equipment safely, strictly in accordance with the law, only for its intended use, and in accordance with any manufacturers’ instruction(s) whether supplied by LDEH or posted on the equipment;
(d) Ensure that all persons operating or erecting the Equipment are suitably instructed in its safe and proper use and where necessary hold a current Certificate of Competency and/or are fully licensed to operate the Equipment and shall provide evidence of the same to LDEH upon request;
(e) Comply with all occupational health and safety laws relating to the Equipment and its operation;
(f) On termination of the hire, deliver the Equipment complete with all parts and accessories, clean and in good order as delivered, fair wear and tear accepted, to LDEH;
(g) Keep the Equipment in their own possession and control and not assign the benefit of the hire contract nor be entitled to any lien over the Equipment;
(h) Not alter or make any additions to the equipment including but without limitation altering, make any additions to, defacing or erasing any identifying mark, plate or number on or in the equipment or in any other manner interfere with the Equipment;
(i) Employ the Equipment solely in its own work and shall not permit the Equipment of any part thereof to be used by any other party for any other work;
(j) Not exceed the recommended or legal load and capacity limits of the Equipment;
(k) Not use or carry any illegal, prohibited or dangerous substance in or on the Equipment;
(l) Not fix any of the Equipment in such a manner as to make it legally a fixture forming part of any freehold;
(m) NOT USE EQUIPMENT FOR SAND BLASTING OR TO APPLY SHOT CRETE.
(n) Indemnify and hold harmless LDEH in respect of all claims arising out of the Customers use of the Equipment
11.2 Immediately on request by LDEH the Customer will pay;
(a) All costs incurred in cleaning the Equipment;
(b) The costs of fuels and consumables provided by LDEH and used by the Customer.
12.1 LDEH may cancel these terms and conditions or cancel delivery of Equipment at any time before the Equipment is delivered by giving written notice. On giving such notice LDEH shall repay to the Customer any sums paid in respect of the Price. LDEH shall not be liable for any loss or damage whatever arising from such cancellation.
12.2 In the event that the Customer cancels delivery of the Equipment the Customer shall be liable for any loss incurred by LDEH including, but not limited to, any loss of profits up to the time of cancellation.
13. Default and Consequences of Default
13.1 Interest of overdue invoices shall accrue daily from the date when payment becomes due, until the date of payment, at a rate of two and one-half percent (2.5%) per calendar month (and at Lift & Dig’s sole discretion such interest shall compound monthly at such a rate) after as well as before any judgment.
13.2 If the Customer owes Lift & Dig any money the Customer shall indemnify Lift & Dig from and against all costs and disbursements incurred by Lift & Dig in recovering the debt (including but not limited to internal administration fees, legal costs on a solicitor and own client basis, Lift & Dig collection agency and bank dishonour fees).
13.3 Without prejudice to any other remedies Lift & Dig may have, if at any time the Customer is in breach of any obligation (including those relating to payment) under these terms of hire Lift & Dig may repossess the equipment as per clause 9.2 or suspend or terminate the supply of equipment to the Customer and nay of its other obligations under the terms and conditions. Lift & Dig will not be liable to the Customer for any loss or damage the Customer suffers because Lift & Dig has exercised its rights under this clause.
13.4 Without prejudice to Lift & Dig’s other remedies at law Lift & Dig shall be entitled to cancel all or any part of any order of the Customer which remains unperformed in addition to and without prejudice to any other remedies Lift & Dig may have and all amounts owing to Lift & Dig shall, whether or not due for payment, become immediately payable in the event that;
(a) Any monies payable to Lift & Dig become overdue, or in Lift & Digs opinion the Customer will be unable to meet its payments as they fall due:
(b) The Customer 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
(c) Receiver, manager, liquidator (provisional or otherwise) or similar person is appointed in respect of the Customer or any asset of the Customer.
13.5 LDEH will not be liable for any loss or damage which the Customer might suffer by reason of any damage to the Equipment or caused by the Equipment or its use by the Customer and howsoever arising including whether by inadvertence on the part of the Customer or in circumstances where there is an innate or latent defect in the Equipment of which the supplier is unaware. The provisions of this clause are not intended to limit the supplier’s statutory obligations and warranties as to fitness for purpose and maintenance in good order and condition.
14. Security and Charge
14.1 In consideration of LDEH agreeing to supply equipment, the Customer charges all of its rights, title and interest (whether joint or several) in all land, realty or other assets capable of being charged, owned by the Customer either now or in the future, to secure the performance by the Customer of its obligation under these terms and conditions (including, but not limited to the payment of any money).
14.2 The Customer indemnifies LDEH from and against all LDEH costs and disbursements including legal costs on a solicitor and own client basis incurred in exercising LDEH right under this clause.
14.3 The Customer irrevocably appoints LDEH and each Director of LDEH as the Customer’s true and lawful attorney to perform all necessary acts to give effect to the provisions of this clause 14 including, but not limited to, signing any document on the customer’s behalf.
15. Privacy Act 1988
15.1 The Customer agrees for LDEH to obtain from a credit reporting agency a credit report containing personal credit information about the Customer in relation to credit provided by LDEH which LDEH may use as it deems fit in conjunction with the hire agreement..
15.2 The Customer agrees that LDEH may exchange information about the Customer with those credit providers whether named as trade references by the Customer or named in a consumer credit report issued by a credit reporting agency for the following purpose;
(a) To assess an application by the Customer; and/or
(b) To notify other credit providers of a default by the Customer; and/or
(c) To exchange information with other credit providers as to the status of this credit account, where the Customer is in default with other credit providers; and/or
(d) To assess the creditworthiness of the Customer. The Customer understands that the information exchanged can include anything about the Customer credit worthiness, credit standing, credit history or credit capacity that credit providers are allowed to exchange under the Privacy Act 1988.
15.3 The Customer consents to LDEH being given a consumer credit report to collect overdue payment on commercial credit (section 18K (1) (h) Privacy Act 1988).
15.4 The Customer agrees that personal credit information provided may be used and retained by LDEH for the following purposes (and for other purposes as shall be agreed between the Customer and Lift & Dig or required by law from time to time);
(a) The provision of equipment on hire; and/or
(b) The marketing of services by LDEH, its agents or distributors; and/or
(c) Analysing, verifying and/or checking the Customer’s credit, payment and/or status in relation to the provision of equipment on hire; and/or
(d) Processing of any payment instructions, direct debit facilities and/or credit facilities requested by the Customer; and/or
(e) Enabling the daily operation of Customers account and/or the collection of amounts outstanding in the Customer’s account in relation to the hire of the equipment.
15.5 LDEH may give information about the Customer to a credit reporting agency for the following purposes;
(a) To obtain a consumer credit report about the Customer;
(b) Allow the credit reporting agency to create or maintain a credit information file containing information about the Customer.
15.6 The information given to the credit reporting agency may include;
(a) Personal particulars (the Customer’s name, sex, address, previous addresses, date of birth, name of employer and drivers licence number);
(b) Details concerning the Customers application for credit or commercial credit and the amount requested;
(c) Advice that LDEH is a current credit provider to the Customer.
(d) Advise of any overdue account, 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;
(e) That the Customer’s overdue accounts, loan repayments and/or any outstanding monies are no longer overdue in respect of any default that has been listed;
(f) Information that, in the opinion of LDEH, the Customer has committed a serious credit infringement (that is fraudulently or shown an intention not to comply with the Customer’s credit obligations);
(g) Advice that cheques drawn by the Customer for one hundred ($100) dollars or more, have been dishonoured more than once;
(h) That credit provided to the Customer by Lift & Dig had been paid or otherwise discharged.
16. Personal Property Securities Act 2009 (“PPSA)
16.1 In this clause financing statement, financing change statement, security agreement, and security interest had the meaning given to it by the PPSA.
16.2 Upon assenting to these terms and conditions in writing the Customer acknowledges and agrees that these terms and conditions constitute a security agreement for the purpose of the PPSA and creates a security interest in all equipment that had previously been supplied and that will be supplied in the future by LDEH to the Customer.
16.3 The Customer undertakes to:
(a) 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 LDEH may reasonably require to:
(i) Register a financing statement or financing change statement in relation to a security interest on the personal property securities register.
(ii) Register any other document required to be registered by the PPSA; or
(iii) Correct a defect in a statement referred to in clause 16.3 (a)(i) or 16.3 (a)(ii)
(b) Indemnify, and upon demand reimburse, LDEH 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 equipment charged thereby;
(c) Not register a financing change statement in respect of a security interest without the prior written consent of LDEH
(d) Do not register or permit to be registered, a financing statement or a financing change statement in relation to the equipment in favour of a third party without the prior written consent of LDEH.
16.4 LDEH and the Customer agree that sections 96,115 and 125 of the PPSA do not apply to the security agreement created by these terms and conditions.
16.5 The Customer waives their rights to receive notices under sections 95, 118, 121(4), 130, 132(3)(d) and 132(4) of the PPSA
16.6 The Customer waives their rights as a grantor and/or a debtor under sections 142 and 143 of the PPSA.
16.7 Unless otherwise agreed to in writing by LDEH, the Customer waives their right to receive a verification statement in accordance with section 157 of the PPSA.
16.8 The Customer must unconditionally ratify any actions taken by Lift & Dig under clauses 16.3 to 16.5
16.9 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 the PPSA.
17. Building and Construction Industry Security of Payments Act 1999
17.1 At LDEH sole discretion, if there are any disputed claims for unpaid goods and/or services then the provisions of the Building and Construction Industry Security of Payments Act 1999 may apply.
17.2 Nothing in this agreement is intended to have the effect of contracting out of any applicable provisions of the Building and Construction Industry Security of Payments Act 1999 of New South Wales, except to the extent permitted by the Act where applicable.
18.1 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.
18.2 These terms and conditions and any contract to which they apply shall be governed by the laws of New South Wales and are subject to the jurisdiction of the courts of New South Wales.
18.3 LDEH shall be under no liability whatever to the Customer for any indirect loss and/or consequential loss and/or expense (including loss of profit) suffered by the Customer arising out of a breach by LDEH of these terms and conditions.
18.4 In the event of any breach of this contract by LDEH the remedies of the Customer shall be limited to damages. Under no circumstances shall the liability of LDEH exceed the Price.
18.5 The Customer shall not be entitled to set off against or deduct from the Price any sums owed or claimed to be owed to the Customers by LDEH.
18.6 LDEH may license or sub-contract all or any part of its rights and obligations without the Customer’s consent
18.7 LDEH reserve the right to review these terms and conditions at any time. If following any such review, there is to be any change to these terms and conditions, then that change will take effect from the date on which LDEH notifies the Customer of such change. Except where LDEH supplies further equipment to the Customer and the Customer accepts such equipment, the Customer shall be under no obligation to accept such changes.
18.8 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 ether party.
18.9 The failure by LDEH to enforce any provision of these terms and conditions shall not be treated as a waiver of that provision, nor shall it affect LDEH right to subsequently enforce that provision.
18.10 The parties agree that the provision of these Terms and Conditions by post, courier, email, facsimile or by hand to the Customer at the time of the hiring or as soon as practicable thereafter shall constitute sufficient dislcosure and give rise to a binding agreement between the parties.
18.11 It shall be sufficient evidence of disclosure of these Terms and Conditions by LDEH that LDEH produces an email record or such other recorded means as was available to LDEH at the time of confirmation of the hire.
18.12 These Terms and Conditions are deemed to apply regardless of whether there is any specific acknowledgement by the hirer including failure to sign or initial where marked or to return an executed copy and are deemed to be accepted once the hiring commences and the Customer agrees to be bound accordingly.