DRY HIRE TERMS AND CONDITIONS
These are the General Terms and Conditions of agreement made between Simmcal Pty Ltd, Trading as “Wyndcorp ®” (referred to as “Wyndcorp ®”) and the party whose signature appears as Hirer on the Rental Agreement (referred to as the “Hirer”) whereby the parties agree as follows:
1. Agreement to Hire. Wyndcorp ® hires to the Hirer and the Hirer rents from Wyndcorp ® the Vehicle for the rental period at the agreed rental (as per application, Rental Agreement, or quotation) and subject to these terms and conditions. Particular conditions set out in a (accepted) quotation shall prevail to the extent of any inconsistency with these general conditions. Pick up or accepting delivery of the Vehicle confirms acceptance of these terms and conditions of hire.
2. Warranty of Authority. Any person who signs this agreement on behalf of the Hirer warrants that for all purposes of the Agreement he is the duly authorised agent of the Hirer. If such person is not the duly authorised agent of the Hirer then in consideration of Wyndcorp ® permitting him to drive the Vehicle he shall be deemed to be the Hirer and agrees to be bound by all the terms and conditions of this agreement.
3. Warranty by Hirer. The Hirer warrants that:
(a) all particulars provided on the Hirer’s Application relating to the driver and the Hirer are correct; and
(b) the Hirer acknowledges that it is upon reliance of the truth of the above representations and those on the Application that Wyndcorp ® enters into this agreement .
4. Insurance Policies.
(a) The Client shall take out and maintain at its own expense:
(i) all risk insurance for the physical loss (including theft) and/or damage to the VEHICLE OR EQUIPMENT for the replacement value and loss of hire charges, including whilst in transit.
(ii) Insurance (including insurance required by all applicable laws) for any liability for loss or damage to third party property and death or injury to any third party person arising out of or in connection with the VEHICLE OR EQUIPMENT (whether they are used for the purpose of conveying people or property or otherwise and whether they are licensed or unlicensed).
(iii) public liability insurance for a minimum of $10,000,000;
(iv) workers compensation and occupational/industrial disease and any other insurance required by any law relating to the Customer’s workers compensation liability to any person, including common law cover for not less than $50,000,000; and
(v) any other insurance as required by law.
(b) The Client shall ensure that insurances referred to in 4(a)(i) (ii) and (iii) names the Owner as Principal and owner and loss payee.
(c) The Client shall ensure that insurance referred to in 4(a) (iv) extends to indemnify the Owner as principal in relation to both Act Benefits and at Common Law.
(d) The Client shall provide the Owner with a copy of the certificate of currency of the insurance policies required under clause 4(a) before the Client collects the VEHICLE OR EQUIPMENT.
(e) If during the Hire Period the VEHICLE OR EQUIPMENT requires repair or replacement the Owner reserves its right to make a claim against the Client for the cost of replacement and damages for loss of revenue and profit.
5. The Hirer’s primary obligations are:
(a) To pay the agreed rental;
(b) To supply Wyndcorp ® with a copy of the certificate of currency of the insurance policies required under clause 4(a)
(c) To take proper care of the Vehicle;
(d) To comply with the limitations placed on the use of the Vehicle; and,
(e) To restore the Vehicle to Wyndcorp ® at the end of the hiring in the same condition as noted in the Vehicle Condition Report at the commencement of the hire period.
FOR THE AVOIDANCE OF DOUBT:
(f) the Hirer is responsible for returning the motor vehicle to Wyndcorp ®, together with any fittings and equipment, (collectively the “Vehicle”) at the end of the rental period. The Vehicle must be returned in the condition it was in when first rented, subject only to fair wear and tear. Otherwise the Hirer will be on risk for all loss, cost, damage and other liability related to the hire of the Vehicle as if the Hirer was the owner of the Vehicle.
Note: The vehicle hire period ceases when the vehicle is returned to the condition that it was first rented.
(g) The Hirer indemnifies Wyndcorp ® for all losses, expenses and costs in respect of any damage to the Vehicle whether caused by the Hirer or any other person or thing.
6. Fees & Charges General. The parties agree the following general provisions shall apply unless expressly amended by quotation or written agreement:
(a) Rental Day. The rental day is calculated from booking time on day of commencement of the rental and ceases at the same time on the following day.
(b) Rental Period. The Rental Period means the period from the booking time and date stated on the Rental Agreement until the Vehicle is returned to the depot from where hired. The minimum rental period is 24 hours and where the Vehicle is returned on a day on which Wyndcorp ® is usually closed for business the Rental
Period will continue until Wyndcorp ® is next open for business.
(c) Total Rent. The Hirer shall pay the total rent for the rental period to Wyndcorp ® and for the purpose of this Agreement the total rent shall be the aggregate of:
(i) The charge for the use of the Vehicle as set out on the rental agreement (whether a time and kilometre rate charge, a flat rate charge, or any other rate of charge) calculated by Wyndcorp ®; OR if agreed between Wyndcorp ® and the Hirer, at a rate set out in the quotation or Wyndcorp ®’s schedule of rates then current at the commencement of the rental period.
(ii) Fuel service charges (these are additional).
(iii) charges for Fuel (to top the tank back up to starting level), and any other charges specified in the Rental Agreement.
(iv) Late return charges – if a Vehicle is returned more than 4 hours late that counts as hire for an additional day. For periods of 4 hours or less the late return charge is calculated at one fifth of the daily rental rate for each hour or part thereof;
(v) All stamp duties, GST and other taxes payable in respect of the rental period (if any);
(vi) Premium locations – A Levy will be charged for premium locations (this includes airport locations)
(d) Additional charges (if applicable).
(i) a sum equal to the replacement value of any tyres, tools, accessories and equipment lost or stolen during the rental period;
(ii) any fines for traffic or parking offences rising from the use of the Vehicle imposed on any person or company during the Rental Period;
(iii) any expenses incurred by Wyndcorp ® in repossessing the Vehicle including where the Vehicle has been impounded or confiscated by the Police or other Relevant Authority pursuant to hoon laws for any other reason;
(iv) any expenses incurred for cleaning and/or rust treatments due to exposure to salt and salt damage.
(v) Vehicle Detailing – Wyndcorp ® allow 2hrs for Small, 3hrs for Medium and 4hrs for Large Vehicles. All cleaning required in excess of this will be charged to the Hirer at Wyndcorp ®’s current schedule of rates.
(e) All rates, fees, costs, damages and charges will be calculated by Wyndcorp ®.
(f) Administration Fee. Wyndcorp ® reserves the right to charge an Administration Fee, of no more than 30% of the amount of loss, cost and damage in addition to any amount claimed for any loss, cost or damage as reasonable compensation for Wyndcorp ® having to deal with any situation of loss, cost or damage occasioned by the Hirer’s failure to comply with its obligations under this agreement.
This fee will be charged where Wyndcorp ® must process fines, recover Vehicles which have broken down or liaise with Relevant Authorities.
7. General restrictions on Driver. The parties agree and the Hirer undertakes that:
(a) No person shall drive the Vehicle unless s/he:
(i) holds a current motor drivers licence for the class of vehicle hired and which must be valid in the place in which the Vehicle is used;
(ii) has never been refused motor vehicle insurance;
(b) The Vehicle must not be driven by any person other than the Hirer or the Hirer’s properly authorised employee, agent, contractor or other representative.
GENERAL TERMS AND CONDITIONS TO RENTAL AGREEMENT
8. Hirer’s undertakings and restrictions on care for and use of the Vehicle.
The Hirer agrees and undertakes:
(a) To take reasonable care. The Hirer must take reasonable care of the Vehicle at all times and must not drive it when it is in a damaged or unsafe condition.
(b) To maintain fluids and tyre pressure. The Hirer must take care to maintain sufficient fluid levels (including radiator, engine sump etc.) and keep the tyres correctly inflated.
(c) The Vehicle must not be taken or used:
(i) Off Road (unless the hirer has written permission from Wyndcorp ® ) – see definition;
(ii) on private roads, whether sealed or not, if the Hirer has not first obtained a relevant permit;
(iii) on beaches, boat ramps, rivers, lakes or other places where the Vehicle enters the water or could be immersed or partially or totally submerged in water;
(iv) in Excluded Areas.
(d) Towing. The Vehicle must not be used by the Hirer to propel or tow any vehicle or trailer in excess of that for which the Vehicle was constructed.
(e) No illegal purpose. The Vehicle must not be used in any illegal manner; for any illegal purpose; or in any speed test or contest (or in preparation therefore).
(f) Alcohol and drugs. The Vehicle must not be driven by the Hirer under the influence of alcohol or intoxicating drugs (whether prescribed or illicit). The Hirer will not refuse or fail to undergo a breath, blood or similar test or analysis in compliance with the directions of the police or other Relevant Authority. Such refusal will give Wyndcorp ® the right to terminate this hire agreement.
(g) Restrictions on the transportation of goods, property or passengers.
The Vehicle must not be used:
(i) to haul any goods unless specified in this Rental Agreement;
(ii) for the carriage of Dangerous Substances;
(h) Compliance with Laws. The Hirer covenants with Wyndcorp ® that the Hirer will comply with all relevant laws relating to the operation of motor vehicles and without limiting the generality thereof will pay all taxes, tolls, levies, charges, duties, fines and penalties imposed arising out of the use or possession of the Vehicle by the Hirer and indemnifies Wyndcorp ® in respect of any liability incurred by Wyndcorp ® in respect thereof.
Consent may be requested. If the Hirer thinks it may wish to use the Vehicle for a purpose contrary to this clause 8, the Hirer must first obtain Wyndcorp ®’s written consent and may need to negotiate special rates; additional charges.
9. Liability for Accidents, Loss and/or Damage Generally.
The Hirer agrees that:
(a) General. The Hirer shall be liable to Wyndcorp ® for the full amount of any damage to the Vehicle (howsoever caused) which occurs on or after any breach by the Hirer of any term, condition, warranty or undertaking contained in this Agreement and for the negligence or misconduct of the Hirer and its servants and agents.
(b) The Hirer is liable for the full amount of all loss, cost and damages plus the Administration Fee for any breach of any provision or part of a provision of clause 7 (Restrictions on Driver) or clause 8 (Hirer’s undertakings).
(c) Unless expressly and separately agreed, Wyndcorp ® and any insurance which may be placed by Wyndcorp ® does not cover damage or injury to any persons or property (including the Vehicle) Howsoever caused.
(d) Wyndcorp ® may at its discretion, elect simply to charge the amount of loss, cost and damage, including the cost of repairs, plus the Administration Fee or the cost of a new vehicle plus an Administration Fee if the Vehicle is written off – or a variation of this.
FOR THE AVOIDANCE OF DOUBT:
(i) Wyndcorp ® may claim reimbursement from the Hirer for the costs of replacing lost or damaged equipment, costs of repossessing the Vehicle (including fines and towage charges) and the loss of hire charges and profits for the period when the Vehicle is out of commission or has been impounded or confiscated pursuant to hoon laws or other legislation.
10. Accidents, damage and claims
(a) Hirer must report incidents. The Hirer will immediately report any breakdown, accident or incident which may give rise to a claim which occurs during the Rental Period.
(b) Hirer must provide information. The Hirer will immediately complete and furnish to Wyndcorp ® (or Wyndcorp ®’s solicitors) such statements, police report, information and assistance as Wyndcorp ® may reasonably require in respect of any event or accident involving damage to the Vehicle or to the property of any person or injury to any person.
(c) Hirer must not make offers or admissions. The Hirer must not, without the prior written consent of Wyndcorp ®, make or give any offer, promise of payment, settlement waiver, release indemnity or admission of liability in respect of any accident, damage to the Vehicle or to the property of any third person or injury to any person.
(d) Assessment of damage.
(i) The Hirer acknowledges and agrees that the amount of any damage to the Vehicle shall whenever reasonably possible be assessed by an independent expert (whom may be a repairer with a minimum of 5 years post qualification experience) engaged for the purpose by Wyndcorp ®.
(ii) Whenever the services of such an expert are not available such assessments shall be made by any authorised representative of Wyndcorp ® who shall certify the amount of such assessment.
(iii) The assessment of damage so made shall be final and binding on Wyndcorp ® and on the Hirer in the absence of manifest error.
(e). Loss, Cost and Damage for which the Hirer is liable includes without limitation: The cost of –
(i) rectifying all tyre damage not attributable to normal wear and tear;
(ii) rectification of all damage to the under carriage or to the over carriage;
(iii) repairing all body or roof damage;
(iv) returning the Vehicle to Wyndcorp ® should the Vehicle for any cause be damaged or need towing;
(v) rectification of damage to suspension, steering, chassis, deferential, gear box, transfer case, axles, wheels or other damage caused by abnormal use, misuse or abuse of the Vehicle;
(vi) replacing spare wheels equipment, tools and jack; and,
(vii) repair or replacing window glass.
11. Wyndcorp ® may terminate agreement for Breach.
If the Hirer is found to be in breach of any term condition or warranty herein or has made any misrepresentation to Wyndcorp ®; or if Wyndcorp ® considers on reasonable grounds that the conduct of the Hirer is likely to affect prejudicially the interest of Wyndcorp ® or the condition of the Vehicle then Wyndcorp ® may determine this
agreement and without notice repossess the Vehicle whereupon all moneys previously paid by the Hirer shall be forfeited to Wyndcorp ® but without prejudice to any claims or rights of Wyndcorp ® in respect of any arrears of rent or any moneys due to Wyndcorp ®.
12. No warranties by Wyndcorp ®.
All conditions and warranties (statutory or otherwise) including those of fitness for purpose, quality or description are negatived and excluded to the extent permissible by law.
(a) Wyndcorp ® will supply a copy of the manufacturer’s specifications for a Vehicle upon request.
(b) The Hirer will not at any time make any claims against Wyndcorp ® for any loss or damage for delays through breakdown, mechanical difficulty or accident or by reason of the Vehicle being found to be unsuitable for the purposes of the Hirer or with respect to any loss or damage to any property stolen from the Vehicle or damaged or otherwise during the rental period or left in the Vehicle after the return of the Vehicle to Wyndcorp ®. And the
Hirer hereby agrees to indemnify Wyndcorp ® in respect of all claims, damages and actions brought against Wyndcorp ® in respect thereof.
(c) Wyndcorp ® is not responsible for any loss or damage incurred by the Hirer for Acts of God, civil unrest, terrorism or any other cause beyond Wyndcorp ®’s reasonable control.
13. Indemnity for Costs.
The Hirer hereby agrees to pay Wyndcorp ® on demand and indemnify and keep indemnified Wyndcorp ® from and against any and all legal and other costs, including costs and charges by professional debt collectors, in seeking to enforce this agreement and remedy any breach by the Hirer. This indemnity is to cover any loss, cost or damage incurred by Wyndcorp ® due to the Hire of the Vehicle including caused by accidents, incidents, damage and theft.
(a) Distance. Where relevant, the total distance driven shall be measured by the odometer installed in the Vehicle. The Hirer must not interfere with or tamper with the odometer.
(c) No amendment. This agreement can only be amended by the express written consent of an authorised officer of Wyndcorp ® (a manager).
(d) Read Down. If any provision of this agreement or part of a provision of this agreement is or becomes legally ineffective, under the general law or by force of legislation, but would not have such effect if it were read down and, if it is capable of being read down, such provision or part of a provision shall be read down accordingly.
(e) Severance. If notwithstanding the foregoing a provision or part of a provision of this agreement still is or becomes legally ineffective: If the provision would not have such an effect if a word or words were omitted, that word or those words are hereby severed; and, In any other case, the whole provision is hereby severed; and the remainder of this agreement shall be of full force and effect.
(f) In the event the damages claimed by Wyndcorp ® pursuant to this Agreement are deemed unlawful or an unreasonable penalty and struck out by a Court, then the damages payable to Wyndcorp ® shall be such amount as required to put Wyndcorp ® in the position it would have been in had the damage or incident not occurred.
(g) Replacement tyres must match. Where the Hirer replaces a tyre at its own cost, the replacement tyre must be the same brand and tread pattern as already on the Vehicle. If the Hirer does not do this then Wyndcorp ® may charge the Hirer for an entire replacement set of tyres (of no lesser standard than the replaced set).
(h) Approved Unsealed Roads. It is a condition of approval as an Approved Unsealed Road that the road must be a gravel road which is well formed, graded, well maintained and in good condition at the time of driving the Vehicle upon the road. Further, the approval is subject to the Hirer first obtaining any requisite permission from a Relevant Authority.
15. Definitions and interpretation: In this Agreement –
“Accident” means any collision between the Vehicle and any other object, including another vehicle, or any other incident or occurrence that results in the Vehicle being damaged, lost or destroyed and/or an incident that results in damage or injury to a person or property. Note that some special rules apply to SVAs.
“Act of God” or “Force Majeure” means an accident of a nature beyond reasonable human control e.g.: flood, lightning, cyclone.
“Collision” means two navigable things coming into contact.
“Agreement” and “Rental Agreement” includes these general conditions, the Risk Management Agreement and where relevant the application to hire, an account application, credit application and/or an accepted quotation.
“Approved Unsealed Road” means an Unsealed Road for which Wyndcorp ® has expressly agreed in writing shall be an Approved Unsealed Road.
“Dangerous Substances” has its ordinary meaning and includes inflammable liquids, gases or solids having a true flash point of less than 23 degrees Celsius (73 F) or any goods, materials or substances of an explosive or corrosive nature.
“Excluded Area/s” means areas/roads defined in this Agreement where the Vehicle must not be .
“Fault” means caused by or materially contributed to by:
(a) the Hirer’s misconduct, negligent act; and/or
(b) the Hirer’s reversing into a stationary vehicle or other object (whether or not that thing was also moving) and incidents involving parking and parking lots generally;
(c) breach of a provision this Agreement particularly including a breach of clause 7 (Restrictions on Driver) and/or clause 8 (Hirer’s undertakings).
(d) For the avoidance of doubt, even if the Hirer is not negligent but breaches a restriction on the use and operation of the Vehicle the Hirer shall be deemed at Fault.
“Gazetted” refers to a notice or message published in the Western Australian Government Gazette
“Gazetted Road” means a sealed or unsealed road regularly maintained by a local, state or government body or council and upon which the general public have unlimited rights of access.
“Hirer” means and includes the following (unless an express contrary intention is agreed in writing):
(a) any person who signs this Agreement whether on his own behalf or on behalf of any other person, company, corporation or government department;
(b) the person, company, corporation or government department shown on the rental agreement/application for hire or the addressee of that rental agreement; and
(c) any person, company, corporation or government department which is or becomes vicariously liable at law to third parties for loss or damage caused by the driver of the Vehicle where it is established that the hiring was made by the driver as agent for and on behalf of such person, company, corporation or government department.
“Offence” includes infringement.
“Off Road” means and includes:
(a) any road which is not a Sealed Road or a Gazetted Road or an Approved Unsealed Road and -includes driving surfaces which are not traditionally paved or sealed/bituminised such as beaches, sand, gravel, riverbeds, mud, snow, rocks and other natural terrain.
(b) It also includes roads for which an access permit is required from a Relevant Authority unless the Hirer first obtains the access permit).
(c) Note that any Unsealed Road, whether Gazetted or not, must be graded, well maintained and in good condition at the time of driving the Vehicle or it shall be deemed to be Off Road.
“Rental Agreement” includes the document with that title provided by Wyndcorp ®.
“Relevant Authority” includes a police force, a government or other statutory authority and where a quasi-government or private organisation is responsible for managing an area, issuing permits, tickets or fines (e.g. to use private roads) then that organisation.
“Road” means a “Sealed Road” and, subject to express written agreement, may include an “Approved Unsealed Road”.
“Sealed Road” means a road sealed with a hard material such as tar, bitumen or concrete.
“Single Vehicle Accident” or SVA means without limitation:
(a) any Accident in which no other vehicle is involved including but not limited to rollovers, contacting with animals, an accident materially contributed to by avoiding contact with animals, and/or crashing into trees or similar.
(b) The definition of SVA expressly does not include Accidents involving parking or car parks and does not include reversing into stationary things.
“Unsealed Road” means a road which is not sealed with a hard material such as tar, bitumen or concrete.
“Vehicle” means the motor vehicle the subject of the hire (usually described on the Rental Agreement), or any alternate motor vehicle that Wyndcorp ® supplies to the Hirer, whether as a replacement or otherwise, and includes all Vehicle parts, tyres, tools, accessories and equipment in or fitted to the Vehicle.
(a) Each rate noted or referred to in this agreement is the rate as determined from time to time unless otherwise agreed by written quotation or price agreement.
(b) In the case of joint hiring the Hirers shall be jointly and severally liable in respect of this Agreement.
(c) “act” includes an omission to act.
Things to note with local roads:
(a) Some roads require permits to travel. Many of the roads in the northwest are unsealed and/or are private roads requiring a permit to travel. You should check with the Police Station, Tourist Information Centre or Local Government in respect of permits. If you travel on a road without a valid permit you may invalidate your insurance cover and in most cases Wyndcorp ® will hold you at Fault.
(b) Local roads can be dangerous. Many local roads are unsealed or alternate between being sealed and unsealed which increases the risk of rollovers and other accidents. You must be very careful to proceed at a safe driving speed.