GENERAL CONDITIONS FOR THE HIRING OF EQUIPMENT
1. DEFINITIONS AND LAW
“ACL” means the Australian Consumer Law Schedule of the Competition and Consumer Act; “Conditions” means these general conditions for the hiring of equipment; “Contract” means any contract for the hire of Equipment by the Supplier to the Hiree and includes any document(s) that set out details relevant to the hiring of equipment; “consumer” is as defined in the ACL and in determining if the Hiree is a consumer, the determination is made if the Hiree is a consumer under the Contract; “Equipment” means the good supplied by way of hire by the Supplier to the Hiree; “Default Interest” means an interest at the rate from time to time prescribed in Section 2 of the Penalty Interest Rate Act 1983; “GST” means the Goods and Services tax as defined in A New Tax System (Goods and Services Tax) Act 1999 as amended; “Hiree” means person, jointly or severally if more than one, hiring the Equipment or acquiring the services; “Services” means the services provided by the Supplier to the Hiree; “Supplier” means a franchisee of Hire for Baby Pty Ltd (ACN 129 455 107).
2. BASIS OF CONTRACT
Unless otherwise agreed in writing, these Conditions apply exclusively to every Contract and cannot be varied or replaced by any other terms, including the Hiree’s terms and conditions (if any). Any quotation provided by the Supplier to the Hiree for the proposed supply of goods or services is:valid for 30 days; an invitation to treat only; and only valid if in writing. The Conditions may include additional terms in the Supplier’s quotation, which are not inconsistent with the Conditions. If the Hiree places an order via telephone, electronic means or via the Supplier’s website, a Contract is only accepted by the Supplier when the Supplier accepts, in writing or electronic means, an offer from the Hiree or provides the Hiree with the goods or services ordered. The Supplier, in its absolute discretion, may refuse to accept any offer. The Hiree must provide the Supplier with its specific requirements, if any, in relation to the goods and services. The Supplier may vary or amend these Conditions by written notice to the Hiree at any time. Any variations or amendments will apply to all orders placed after the notice date. Title and property in the Equipment remain vested in the Supplier and do not pass to the Hiree. The Hiree must not sell or part with control of the Equipment.These Conditions and the Contract shall be governed by and construed in accordance with the laws of Victoria, Australia.
3. PRICING AND PAYMENT
Prices quoted for the supply of the Equipment by way of hire include GST and any other taxes or duties imposed on and in relation to the goods. The Hiree must pay the charges stated in the Contract. Hire charges will commence from the date stated in the Contract and will continue during the period of hire until the Equipment is restored to the Supplier in a clean and serviceable condition. All time is chargeable including Saturday, Sunday, Public Holidays etc. At the Supplier’s sole discretion, all payments must be paid in full, either: (a) at the time the order is processed; or (b) no later than the time of delivery/pick up. Supplier Payment by cheque is not deemed made until the proceeds of the cheque have cleared. The time for payment is of the essence. The Supplier may withhold delivery of the Equipment if payment has not been received. If payment of any amount is not made on demand, all money which would become payable by the Hiree to the Supplier at a later date on any account, becomes immediately due and payable without the requirement of any notice to the Hiree, and the Supplier may, without prejudice to any of its accrued or contingent rights: charge the Hiree Default Interest accruing daily on the amount that is overdue for the period from the due date until the date of payment in full; charge the Hiree for, and the Hiree must indemnify the Supplier from, all costs and expenses (including, without limitation, all legal costs and expenses) incurred by it resulting from the default by the Hiree or in taking action to enforce compliance with the Contract or to repossess the Equipment; cease or suspend supply of any further Equipment to the Hiree; and by written notice to the Hiree, terminate any uncompleted Contract with the Hiree.
Any request by the Hiree to vary the Contract must be made in writing or by electronic means. If the Hiree requests any variation to the Contract, for example an extension to the period of hire, the Supplier may: (a) accept the variation, for example extend the period of hire, and increase the price to account for the variation; (b) refuse to vary the Contract; or (c) provide the Hiree with a new quotation or contract.
4. DURATION OF CONTRACT
The period of hire is listed in the Contract.Any Equipment not returned to the Supplier on time as outlined in the Contract will incur: further hire costs at the same rate as listed in the Contract; late fees for each piece of Equipment, being the lesser of $5.50 per day or $35.00 per month.
5. RESPONSIBILITIES OF THE HIREE
The Supplier supplies the Equipment with instructions on the safe and proper operation of the Equipment. The Hiree hereby undertakes to ensure that no-one uses the Equipment who is not properly instructed in the use of the Equipment and shall not allow the Equipment to be misused. The Hiree will indemnify and keep the Supplier indemnified from and against all losses, claims, demands, costs and expenses whatsoever and howsoever arising to the Supplier from the Hiree’s breach of the Contract.
The Hiree must inspect the Equipment at the time of delivery for any shortages, damage or non-compliance with the specifications in the Contract. Subject to the rest of clause 6, the Supplier will not be liable for any shortages, damage or non-compliance with the specifications in the Contract unless the Hiree notifies the Supplier with full details and description at the time of delivery, otherwise the Hiree is deemed to have accepted the Equipment. Where any shortages, claim for damaged goods or non-compliance with the Contract specifications is accepted by the Supplier, the Supplier may, at its option, replace the Equipment, or refund any charges for the Equipment that have been paid by the Hiree to the Supplier under the Contract. If the Hiree is a consumer, nothing in this Contract limits any remedy available for a failure of the guarantees in sections 56 and 57 of the ACL.
7. RISK AND INSURANCE
The risk in the Equipment and all insurance responsibility for theft, damage or otherwise will pass to the Hiree immediately on the Equipment being delivered to the Hiree or taken from the Supplier’s premises. The Hiree accepts full responsibility for the care, safekeeping and return in good order of the Equipment. The Hiree assumes all risk and liability for loss, damage or injury to persons or to property of the Hiree, or third parties arising out of the use, installation or possession of any of the goods sold by the Supplier, unless recoverable from the Supplier on the failure of any statutory guarantee under the ACL. The Hiree must either insure the Equipment against loss, theft or damage beyond economic repair on a ‘new for old’ basis or alternatively indemnify the Supplier in a similar amount. All monies received by the Hiree from an insurance company or from any other source in settlement of such claims are held in trust by the Hiree and must be paid to the Supplier on demand. The Hiree must not compromise any claim without the express consent of the Supplier.
In the normal course of business, the Hiree will pick up the Equipment from the address, at the time and on the day specified by the Supplier. If the Hiree does not collect the Equipment at the specified time and does not make alternative arrangements with the Supplier, the Hiree is deemed to have taken delivery and may be liable for storage charges payable monthly on demand. However, if it has been agreed between the parties, the Supplier may arrange for the delivery of the Equipment to the Hiree or his agent. The Hiree will be responsible for all costs associated
with delivery, including freight, insurance and other charges arising from the point of dispatch of the Equipment to the point of delivery. If delivery of the Equipment is frustrated (for example, if the Hiree or his agent are not at the delivery point, or if the Hiree or his agent are not ready to take delivery at the time advised to the Supplier, or if the Supplier cannot gain access to the delivery point), then the Supplier may charge the Hiree for storage fees and re-delivery fees on demand. Any period or date for delivery of the Equipment is stated by the Supplier is an estimate only and not a contractual commitment. The Supplier will use its reasonable endeavours to meet any estimated date for delivery of the Equipment but will not be liable for any loss or damage suffered by the Hiree or any third party for failure to meet any estimated date. The Hiree or his agent shall be responsible for the loading and unloading of the Equipment at the address specified by the Hiree and likewise at the Supplier’s premises when transported by the Hiree or his agent and any person supplied by the Supplier shall be deemed to be an employee of the Hiree or his agent at such times. The Hiree indemnifies the Supplier against any loss or damage suffered by the Supplier, its subcontractors or employees, as a result of delivery, except where the Hiree is a consumer and the Supplier has not used due care and skill.
9. MAINTENANCE OF EQUIPMENT AND BREAKDOWN PROCEDURES
The Hiree must keep itself acquainted with the state and condition of the Equipment and ensure that it remains in a safe, serviceable and clean condition. Any breakdown or any unsatisfactory working of the Equipment must be immediately notified to the Supplier. Under no circumstances shall the Hiree repair or attempt to repair the Equipment unless the Hirer obtains the Supplier’s prior written consent. Unless otherwise required by the ACL, any cost of repairing the Equipment by the Hiree will be borne by the Hiree. If requested by the Supplier, any Equipment, which the Hiree claims requires repairs, must be returned to the Supplier’s premises for examination.
Except as the Conditions specifically state, or as contained in any express warranty provided in relation to the Equipment, the Contract does not include by implication any other term, condition or warranty in respect of the quality, merchantability, acceptability, fitness for purpose, condition, description, assembly, manufacture, design or performance of the Equipment or any contractual remedy for their failure. If the Hiree is a consumer, nothing in these Conditions restricts, limits or modifies the Hiree’s rights or remedies as against the Supplier for failure of a statutory guarantee under the ACL. If the Hiree is not a consumer, then other than as stated in the Conditions or any written warranty statement, the Supplier is not liable to the Hiree in any way arising under or in connection with the hire, installation, use of, storage or any other dealings with the Equipment by the Hiree to any third party. The Supplier shall not be liable for any consequential loss to the Hiree, or any third party, including any expense, liability, loss, claim or proceeding howsoever caused including but not limited to loss of turnover, profits, business or goodwill or any liability to any other party, other than if the Hiree is a consumer, then to the extent the loss was reasonably foreseeable. The Hiree acknowledges that: it has not relied on any service involving skill or judgement, or on any advice, recommendation, information or assistance provided by the Supplier in relation to the Equipment or services of the Supplier or the use or application of the Equipment. if it has not made known, either expressly or by implication, to the Supplier any purpose for which it requires the Equipment, the Hiree has the sole responsibility of satisfying itself that the Equipment is suitable for the use of the Hiree. Nothing in these Conditions is to be interpreted as excluding, restricting or modifying or having the effect of excluding, restricting or modifying the application of any State or Federal legislation applicable to the supply of goods by way of hire which cannot be excluded, restricted or modified.
11. DETERMINATION OF HIRE
The Hiree acknowledges and agrees that, subject to other parts of these Conditions and the Contract, if the Hiree is in breach of these Conditions or the Contract, the Supplier shall be entitled to terminate the Contract and to repossess the Equipment or any part thereof immediately by providing the Hiree a written notice of such termination.
If the Supplier is unable to deliver or provide the Equipment, then it may cancel the Hiree’s order (even if it has been accepted) by written notice to the Hiree. No purported cancellation or suspension of an order or any part of it by the Hiree is binding on the Supplier once the order has been accepted. Cancellations by the hiree must be in writing or electronic means, if pre paid, then cancellation policy applies – more than 72 hours notice – 7 days 50% refund more than 7 days 100% refund, less 72 hours no refund on hire equipment – delivery fees and services 100% refund – only applies to hired product.
13. RIGHTS OF ACCESS
The Hiree hereby authorises the Supplier (upon production of this document) to enter upon any premises where the Supplier reasonably believes any Equipment or any part thereof to be, and if, and in so far as, the Supplier in his absolute discretion deems necessary, to inspect, test, repair, replace or repossess the same.
14. RIGHTS RESERVED
Any failure by the Supplier to enforce any or all of these conditions shall not be construed as a waiver of any of the Supplier’s rights hereunder.
15. SEPARATE TERM VALIDITY
Should any condition be unenforceable, it shall be read down to be enforceable or, if it cannot be read down, the term shall be severed from the Contract without affecting the enforceability of the remaining conditions.
The Hiree must comply with the National Privacy Principles in connection with any personal information supplied to it in connection with the Contract.
The Supplier’s failure to enforce any of these Conditions shall not be construed as a waiver of any of the Supplier’s rights.
A notice must be in writing and handed personally or sent by email, facsimile or prepaid mail to the last known address of the addressee. Notices sent by pre-paid post are deemed to be received upon posting. Notices sent by facsimile or email are deemed received on confirmation of successful transmission