Definitions 1. ‘Equipment’ means the items hired out under this agreement, including all Coldrooms and tyres, tools, trailers, generators and/or accessories in, on or fitted to a Coldroom or other specified Equipment. It does not include goods carried or stored inside the equipment or personal property placed in or on the Equipment by any person.
2. ‘Customer’ means: a. the party contracting to rent the Equipment in this agreement; b. Any person who signs this agreement (whether on their own behalf or the behalf any other person or legal entity); c. Any person named and described as the Customer, or any person purporting to be the named and described Customer; d. The executors, representatives, administrators and/or assigns of any person deemed to be a Customer.
3. ‘Owner’ means Hazelrix Pty Ltd, and includes, the registered owner and proprietor of the Equipment identified in this agreement, including employees (but not agents or managers involved in the hire process).
4. Words importing the singular shall include the plural and vice versa.
5. Words importing any gender include all gender.
6. Any reference to any person includes that person’s executors, administrators, agents, assigns or, being a company, its successors or permitted assigns.
7. Words describing individuals include companies and bodies corporate and vice versa.
8. ‘Rental period’ shall include the period of hire and be from the time that the Equipment is delivered by the Owner to the Customer, until the Equipment is picked up by the Owner, or when the agreement is otherwise terminated.
Background 9. For the purpose of this agreement, the Customer agrees to rent Equipment from the Owner for the agreed rental period and to pay the agreed hire fee. The Owner will deliver the Equipment to the Customer at the start of the hire period and collect the Equipment at the conclusion of the hire period.
Jurisdiction 10. This agreement and any auxiliary documents are governed by the laws of the State of South Australia and subject to the jurisdiction of the Courts of that State.
Severability 11. If any term or condition herein is void or becomes voidable by reason of any statute or rule of law, then that term or condition shall be severed from the agreement without affecting the enforceability of the remaining terms or conditions.
Waiver 12. No waiver of a breach of any provision of this Agreement will operate as a waiver of another breach of that provision or of a breach of any other provision of this agreement. All waivers must be expressly given in writing to be effective and binding. A failure or delay in the exercise or enforcement of any right, power or remedy under this agreement or at law will not preclude or operate as a waiver of any exercise or enforcement of that or any other right, power or remedy.
Rental Period 13. The Rental Period will be presumed to have terminated at the agreed time of conclusion. If the Customer wishes to extend this time, it must first contact the Owner to organise payment and collection.
14. If for any reason the conclusion of the period of hire is unclear or unspecified, the Rental Period will be taken to terminate at 5:00pm (for hires during the day) the date that hire commenced, or 9:00am (for hires overnight) the date immediately following the date of hire, at the same location that the hire occurred.
Fees 15. The fee for hire will be the amount agreed to by the parties to this agreement, in addition to any fees, costs or damages resulting from action, omission or recklessness of the Customer.
16. GST is payable on all hire fees, and therefore included in the fees charged. The Customer’s copy of this agreement is equivalent to a tax invoice and should be presented by the Customer on completion of the hire, for inclusion of any and all additional costs.
17. No insurance will be affected by the Owner for the benefit of the Customer.
18. No deposits will be taken, or required, by the Owner unless otherwise agreed by the parties. 19. The Customer is solely responsible for any fines or other notices incurred by them, relating to the Equipment during the rental period.
20. No Cancellation Fee is automatically applied by the Owner. However, the Owner retains their discretion to apply a cancellation fee of $50 in any circumstance of cancellation if, in their opinion, it is reasonable.
21. The Owner operates in the Adelaide Metropolitan and Southern Fleurieu regions of South Australia. A map of the Owner’s operative region can be found on the Owner’s website. If the location for hire is going to be outside of these regions (by agreement only), the Owner reserves their right to apply a travel fee, proportionate to the travel undertaken. The Customer will be consulted regarding any travel fee intended to be applied.
22. Refunds will be refunded to the same card that was used to make payment. Whilst the Owner will endeavour to process payments and refunds immediately, transactions may take up to 5 working days to appear on a bank statement. If payment was made in cash, refunds will also be made in cash. Termination 23. The Owner may terminate the hire at any time, for any reason constituting a material breach of this agreement. The Customer shall have no claim against the Owner for such termination, unless there is a material breach of the agreement by the Owner. a. Upon termination, the Owner is entitled to immediately take possession of the Equipment. b. If the Equipment is not ready for pick-up by the Owner at the expiration or termination of the agreed hire period, or upon termination of the agreement (whichever is earlier), the Customer shall be required to pay an additional charge of 100% the daily rate for each additional day or part thereof that the Equipment is retained, unless otherwise agreed in writing between the parties.
Customer Acknowledgements and Guarantees 24. The Customer acknowledges that all property in and title to the Equipment remains, at all times, with the Owner. The Customer does not acquire any right, title or interest, in law or otherwise, to the Equipment.
25. The Customer will not, at any time: a. Sell, offer to sell, assign, encumber, mortgage, caveat or sub-let the Equipment or any interest of the Owner herein, or create or allow to be created, any security interest by any party over the Equipment; or b. Allow possession of any Equipment to be taken by any person other than a party of this agreement.
26. The Customer hereby releases the Owner from and agrees to indemnify the Owner in respect of any third-party claims, actions, suits, demands, costs or expenses for damage or injury to a person or property, caused directly or indirectly by the Customer in their use or hire of the Equipment, or any other action under these terms.
27. The Customer will: a. Remain solely responsible and liable for the Equipment hired under this agreement for the entire period or hire; b. Upon delivery of the equipment, inspect and examine the Equipment to confirm its condition and performance. In accepting the Equipment upon delivery, the Customer accepts that it is in satisfactory condition; c. Indemnify the Owner and hold them harmless from and against any and all damage to any person or property resulting from the use of the Equipment, including through negligent or reckless behaviour on behalf of the Customer; and d. Ensure all equipment is ready for collection in a readily accessible position and a clean and properly packed condition. The Customer accepts that any damage to the Equipment identified upon collection, that was not present upon delivery, will be the liability of the Customer. e. The Customer agrees to indemnify the Owner for any costs of cleaning or restoration to return the Equipment to the condition it was at the commencement of the rental period, if in the opinion of the Owner, the Equipment has been returned in a dirty, damaged or dangerous condition.
28. The Equipment is hired and operated by the Customer entirely at their own risk.
29. The Customer has rights conferred on it by consumer protection legislation, including guarantees of the quality of provided Equipment. It is the Customer’s sole responsibility to be aware of their rights. Beyond these statutory rights, the Owner provides no other guarantees or warranties regarding the Equipment or service.
30. The Owner may use vehicle tracking technology associated with the Equipment and the hire thereof and the Customer acknowledges and consents to this. A copy of the Owner’s Privacy Policy is published on the Owner’s website.
Force Majeure 31. If the Owner is unable, at any time during the agreed period of hire, to perform any of its obligations under this agreement, in whole or in part, by reason of any cause outside of its reasonable control (including but limited to acts of God, strikes, lockouts, riots, civil unrest or acts of war) then Owner, upon giving notice to the Customer of the full particulars of such force majeure, shall be, to the extent that they are affected, released from those obligations. The Owner shall not be liable for any loss or damage suffered by the Customer as a result of any delays or inability to perform its obligations due to such events.
Damage or Loss 32. If any Equipment is lost, broken or damaged in any way, the Customer must notify the Owner, at the earliest possible opportunity. Notification will not absolve the Customer of any cost, liability or obligations.
33. In the event that the Equipment becomes unsafe to use (through damage, breaking down or otherwise), the Customer must immediately stop using the Equipment, prevent anyone else from using it and take all reasonable and necessary steps to prevent further damage to the Equipment. The Customer must take reasonable steps to prevent injury to person or damage to property occurring as a result of the condition of the Equipment. The Customer must not attempt to repair the equipment without the Owner’s prior written consent.
34. If the equipment is lost or damaged, and such loss or damage is caused by negligence, recklessness, wilful action or material breach of these terms by the Customer, the Customer shall be liable for any costs incurred to repair or replace the Equipment, the full hire price for any period of time it takes to replace or repair the equipment and any other costs incurred or loss suffered by the Owner as a result of the loss or damage.
35. The Owner accepts no responsibility or liability for any loss, claims, actions, suits, demands, expenses or damages for: a. Any accident, breakdown or other unforeseeable failure of the Equipment; and b. Damage to any person or property, or loss of such property, of the Customer or any other person, including personal property left inside any Equipment.
Proper Use of Equipment 36. The Equipment provided will not be used by the Customer, or any other person, for any illegal purpose, or to convey, carry or load any illegal substances or materials. The Customer agrees not to load the Equipment in excess of the weight restrictions for which that Equipment was constructed.
37. The Customer shall not, without the prior written consent of the Owner, use, or load the equipment with, any flammable substances or other hazardous materials. Relationship of Parties 38. Nothing in these terms, or any other materials relating to this agreement, infer any agency of the Owner on the Customer. At all times the Owner and Customer are considered separate parties to this agreement. The Customer may not enter any agreement on the Owner’s behalf or use the Equipment for any purpose other than that agreed to between the parties.
Recovery of Equipment 39. The Customer agrees to be liable for all costs incurred by the Owner in the recovery of outstanding amounts, or withheld Equipment. This includes, but is not limited to, interest at the rate of 2.5% per annum pro rata, debt collection fees and commissions, legal expenses (including legal fees and disbursements on a solicitor/client basis) and filing fees as may be appropriate.
40. Without prejudice to the rights of the Owner to recover any money owed by the Customer, for payment of fees or for damages for breach of this agreement, the Owner may enter into or upon any premises where the Equipment may be located for the purposes of repossessing the Equipment. The Customer agrees to indemnify the Owner in respect of any claims, damages, expenses or costs arising out of any action taken as a result of this clause.
PPSA Laws 41. This clause applies to the extent that the Owner’s interest in respect of a hire provided for in this Agreement is a ‘security interest’ for the purposes of the Personal Property Securities Act 2009(Cth) (“PPS Law”). References to PPS Law in this Hire Agreement include references to amended, replacement and successor provisions or legislation. a. The Owner may register any actual impending or likely security interest. The Customer may not make any Claim against the Owner in respect of any registration even if it is determined that The Owner should not have registered a security interest. The Customer must do anything (such as obtaining consents and signing documents) which the Owner requires for the purposes of: i. ensuring that the Owner’s security interest is enforceable, perfected and otherwise effective under the PPS Law; ii. enabling the Owner to gain first priority (or any other priority agreed to by the Owner in writing) for its security interest; and iii. enabling the Owner to exercise rights in connection with the security interest. b. The rights of the Owner under this Agreement are in addition to and not in substitution for the Owner’s rights under other law(including the PPS Law)and the Owner may choose whether to exercise rights under this Agreement, and/or under such other law, as it sees fit. To avoid any doubt about it the Owner’s security interest will attach to proceeds. c. To the extent that Chapter 4 of PPS Law applies to any security interest under this Agreement, the following provisions of the PPS Law do not apply and, for the purposes of section 115 of the PPS Law are “contracted out” of this Agreement in respect of all goods to which that section can be applied: i. section 95 (notice of removal of accession to the extent it requires the Owner to give a notice to the Customer); ii. section 96 (retention of accession); section 121(4) (notice to grantor); iii. section 125 (obligations to dispose of or retain collateral); iv. sections 129(2) and 129(3); v. section 130 (notice of disposal to the extent it requires The Owner to give a notice to the Customer); vi. section 132(3)(d) (contents of statement of account after disposal); vii. section 132(4) (statement of account if no disposal); viii. section 135 (notice of retention); ix. section 142 (redemption of collateral); and x. section143 (re-instatement of security document). d. To the extent they apply, the following provisions of the PPS Law; i. section 123 (seizing collateral); ii. section 126 (apparent possession); iii. section 128 (secured party may dispose of collateral); iv. section 129 (disposal by purchase);and v. section134(1)(retention of collateral) conferrights on The Owner. e. The Customer agrees that in addition to those rights, the Owner shall, if there is default by the Customer, have the right to seize, purchase, take possession or apparent possession, retain, deal with or dispose of any goods, not only under those sections but also, as additional and independent rights, under this Agreement and the Customer agrees that the Owner may do so in any manner it sees fit including (in respect of dealing and disposal) by private or public sale, lease or licence. f. The Customer waives its rights to receive a verification statement in relation to registration events in respect of commercial property under section 157 of the PPS Law. This waiver also extends to any verification statement in respect of security interests arising or provided for under security documents prior to the date of this Hire Agreement. g. The Owner and the Customer agree not to disclose information of the kind that can be requested under section 275(1) of the PPS Law. The Customer must do everything necessary on its part to ensure that section 275(6)(a) of the PPS Law continues to apply. The document in this sub-clause is made solely for the purpose of allowing to the Owner the benefit of section 275(6)(a) and the Owner shall not be liable to pay damages or any other compensation or be subject to injunction in respect of any actual or threatened breach of this sub-clause. h. The Customer must not dispose or purport to dispose of or create or purport to create or permit to be created any ‘security interest’ (as defined in PPS Law) in the Equipment other than with the express written consent of the Owner. The Customer must not lease, hire, bail or give possession (‘sub-hire’) of the Equipment to anyone else unless The Owner (in its absolute discretion) first consents in writing. Any such sub-hire must be in writing in a form acceptable to the Owner and must be expressed to be subject to the rights of the Owner under this Agreement. The Customer may not vary a sub-hire without the prior written consent of the Owner (which may be withheld in its absolute discretion). i. The Customer must ensure that the Owner is provided at all times with up-to- date information about the sub-hire including the identity of the sub-hirer, the terms of and state of accounts and payment under the sub-hire and the location and condition of the Equipment. j. The Customer must take all steps including registration under PPS Law as may be required to: i. ensure that any security interest arising under or in respect of the sub- hire is enforceable, perfected and otherwise effective under the PPS Law; ii. enable the Customer to gain (subject always to the rights of the Owner) first priority (or any other priority agreed to by the Owner in writing) for the security interest; and iii. enable the Owner and the Customer to exercise their respective rights in connection with the security interest. k. To assure performance of its obligations under this Agreement, the Customer hereby gives the Owner an irrevocable power of attorney to do anything the Owner considers the Customer should do under this Agreement. The Owner may recover from the Customer the cost of doing anything under this clause 41, including registration fees.
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