TERMS AND CONDITIONS OF HIRE
“Commencement” shall mean the date when the Hirer takes possession of the Furniture or on delivery of the Furniture to the Location.
“Agreement” means the agreement to supply and hire the Furniture between the Owner and the Hirer and includes any quotation, credit application, delivery docket, hire schedule, Hire Order, these Terms and Conditions whether signed by the Hirer or not.
“Furniture” shall mean any and all items of furniture or equipment described in the Hire Order or provided to the Hirer whatsoever pursuant to this Agreement.
“Hire Period” means from Commencement until the latter of (a) the end of the period shown on the Hire Order and being not less than five (5) weeks and accepted by the Owner or (b) at the expiration of any extensions thereof.
“Hire Order” means the document published on the Owner’s website from time to time which the Owner requires the Hirer (or someone on behalf of the Hirer) to submit online (or accept in a way the Owner requires) including particulars of the Furniture and the Hire Period and such other information as the Owner may require and is not a separate agreement but forms part of the Agreement.
“Hirer” shall mean the person, firm, partnership, company or body which is hiring the Furniture from the Owner described in the Hire Order.
“Invoice” shall mean the invoice rendered by the Owner to the Hirer and contain the Price.
“Owner” means Dressed for Sale (ABN 39 615 645 317) providing the Furniture to the Hirer.
“Package of Hire” means various packages available to a Hirer as published on the website of the Owner from time to time and such packages include certain items of furniture for hire, the provision of a stylist and the delivery and collection of furniture at commencement and conclusion of the Hire Period.
“PPSA” means the PPS Act and any other legislation and regulations in respect of it and the following words in clauses 11 and 15 have the respective meanings given to them in the PPS Act: collateral, financing change statement, financing statement, interested person, purchase money security interest, register, registration, security agreement, security interest and verification statement.
“PPS Act” means the Personal Property Securities Act 2009 (Cth) (as amended).
“Price” shall mean the specific amount described in the Invoice rendered by the Owner to the Hirer and shall be calculated in accordance with the latest schedule of charges published by the Owner and brought to the notice of the Hirer.
“Location” shall mean the location at which the Furniture is to be hired and as nominated by the Hirer.
2.1 The Owner and the Hirer hereby acknowledge that this Agreement constitutes the entire agreement between themselves as Owner and Hirer and acknowledge no representations, warranties, guarantees or other terms or conditions, whether express or implied and whether oral or in writing in relation to the subject matter of the Agreement shall not be of any force or effect unless contained in the Agreement.
2.2 The Owner agrees to hire to the Hirer and the Hirer agrees to hire from the Owner the Furniture at the Location for the Hire Period for the Price, subject to and in accordance with the terms and conditions of this Agreement.
3 PAYMENTS BY THE HIRER TO THE OWNER AND GST
3.1 In consideration of the Owner hiring the Furniture to the Hirer, the Owner must be paid the Price.
3.2 Upon a Hire Order being placed, the Owner will render an Invoice to the Hirer. To secure the order for hire being placed the Hirer must remit a 25% deposit to the Owner within 24 hours of the date of the Invoice or such other time nominated by the Owner in writing with the balance payable by the Hirer not less than 72 hours prior to Commencement. Time is of the essence and should the Hirer fail to comply with the time frames for payment defined in this clause then the Hire Order shall lapse and the Owner shall be at liberty to hire the furniture the subject of the Hire Order to a third party. In the event the Hirer pays the 25% deposit but fails to pay the balance within the time frame required, the Owner in its absolute discretion (without any obligation whatsoever to do so) may extend the period for payment of the balance to such other time nominated by the Owner in writing to the Hirer. In the event such extension of time is not communicated in writing to the Hirer, then the Hire Order shall lapse pursuant to this clause and the Owner shall refund the deposit to the Hirer within a reasonable period.
3.3 In the case of a Hire Order being placed requiring Commencement within 72 hours of submission of the Hire Order, the Owner requires up front payment of the Invoice in full prior to Commencement.
3.4 The Hirer acknowledges that the Owner hires the Furniture for an initial minimum five (5) week period which includes all weekends and public holidays and thereafter in blocks of seven (7) day periods (“Block Period”) should the Hire Period be extended.
3.5 In the event the Hirer requires an extension of the Hire Period, such extension must be requested in writing to the Owner not less than seven (7) days prior to the expiration of the Hire Period or Block Period as the case may be. The Owner in its absolute discretion may accept or reject the extension of a further Block Period and communicate its acceptance or rejection to the Hirer in writing. At the time of acceptance the Owner will render a further Invoice to the Hirer and such invoice is due and payable within 72 hours of the commencement of the subsequent Block Period failing upon which the Owner is at liberty to attend at the Location and recover the Furniture, including entering the Location to do so. The amount charged for any extension of the Hire Period will be 15% of the Price stipulated in the initial Invoice rendered by the Owner for each subsequent Block Period (7 days). The amount charged for any extension of the Hire Period in relation to a Package of Hire will be 15% of the Price stipulated in the initial invoice rendered by the Owner for each subsequent Block Period (7 days).
3.6 The Hirer must pay the Price for the Furniture for the Hire Period and any extension thereof including the expiration of the 7th day of the Block Period notwithstanding the earlier return of the Furniture or part of the Furniture.
3.7 Immediately on request by the Owner, the Hirer will pay:
3.7.1 all costs incurred in cleaning the Furniture;
3.7.2 the full cost of repairing any damage to the Furniture (other than fair wear and tear) and capable of repair. If the Furniture is lost or damaged beyond repair, the Hirer must pay the Owner the new replacement cost of the Furniture;
3.7.3 stamp duties, GST, any other taxes or duties, and all tolls, fines, penalties, levies or charges payable in respect of, this Agreement or arising from the Owner’s supply or the Hirers use of the Furniture;
3.7.4 all costs incurred by the Owner in recovering possession of the Furniture;
3.7.5 any expenses and legal costs on an indemnity basis (including commission payable to a commercial agent) incurred by the Owner in enforcing this Agreement; and
3.7.6 Any monies which the Owner may see fit to pay to remedy any default of the Hirer hereunder and any expense the Owner may incur in the enforcement or protection of its rights herein or in relation to the Furniture including (without limiting generality of the foregoing) in relation to any lien claimed (justifiably or not) over the Furniture and in retaking or attempting to retake possession of the Furniture or in preparing, posting or serving any notice or demand.
3.8 Without limiting the ability of the Owner to recover all amounts owing to it, the Hirer authorises the Owner to charge any amounts owing by the Hirer to any credit card or account details of which are provided to the Owner.
3.9 Payment will be made by cash, electronic funds transfer direct credit or by any other method as agreed to between the Owner and the Hirer.
4 HIRING, DELIVERY AND RETURN
4.1 The Furniture will be hired for the Hire Period.
4.2 In the case of a Package of Hire the Owner shall deliver and provide to the Hirer at the Location the Furniture at Commencement. Upon conclusion of the Hire Period, the Owner shall collect the Furniture from the Location. In all other instances, the Hirer (at its cost and expense) shall collect the Furniture from the premises of the Owner at commencement of the Hire Period and return and deliver the Furniture back to the Owner upon conclusion of the Hire Period. Such delivery and collection times shall be negotiated as between the Owner and the Hirer.
4.3 The Owner takes no responsibility and gives no warranty for the suitability of the Furniture and the Hirer agrees that before taking possession of the Furniture, the Hirer has satisfied itself as to the suitability, condition and fitness for the purpose that it intends to use the Furniture.
4.4 Any extension to the Hire Period is subject to the Owner’s prior agreement and the Owner is not liable if for any reason the Furniture is not available for hire after the expiry of the initial Hire Period.
4.5 In the case of a Package of Hire, the Owner will endeavour to effect delivery and collection of the Furniture at the times indicated by the Hirer but will not under any circumstances be liable for any delay in delivery or collection or for failure to deliver or collect.
5 OWNER’S OBLIGATIONS
The Owner will:
5.1 Allow the Hirer to take and use the Furniture for the Hire Period.
5.2 Provide the Furniture to the Hirer clean and in good working order.
5.3 In the case of a Package of Hire, deliver and collect the Furniture to and from the Location.
6 HIRER’S OBLIGATIONS
The Hirer will:
6.1 At the end of the Hire Period, return the Furniture to the Owner clean and in good working order.
6.2 Satisfy itself at Commencement that the Furniture is suitable for its purposes.
6.3 Allow the Owner to enter the Location and inspect the Furniture from time to time during the Hire Period.
6.4 Operate the Furniture safely, strictly in accordance with the law, only for its intended use, and in accordance with any manufacturer’s instructions whether supplied by the Owner or displayed on the Furniture.
6.5 To use the care of a cautious and prudent owner to prevent damage to the Furniture or its loss or destruction and indemnify the Owner for all injury and/or damage caused to persons and property in relation to the Furniture and its operation and have adequate insurance to cover all liabilities incurred as a result of the use of the Furniture.
6.6 Ensure that any person collecting or taking delivery of Furniture on behalf of the Hirer is authorised by the Hirer to do so and the Hirer will not allege that any such person is not so authorised.
6.7 Not to take or allow the Furniture to be taken outside the Location.
6.8 To notify the Owner immediately of any accident or damage to the Furniture or if any repair to the Furniture is necessary.
6.9 Not do or suffer any act or thing which might allow any insurer to decline a claim on any insurance with respect to the Furniture (whether under any condition or exclusion contained in the policy or otherwise).
6.10 Store the Furniture safely and securely and protected from theft, seizure, loss or damage.
7 LIENS AND ENCUMBRANCES
7.1 Except in the circumstances set out in clause 11, the Hirer shall not, and shall not attempt to, assign, mortgage, pledge, sell, charge, encumber, sublet, part with possession of, grant any lien, licence or other encumbrance over, or otherwise dispose of or deal with, or permit or suffer to exist any lien or other encumbrance over, the Furniture or any of the rights of the Hirer to the Furniture or any part thereof, or any of the rights of the Hirer under the Agreement, and shall keep the Furniture free from any distress, execution or other legal process.
7.2 The Hirer shall, if requested by the Owner place and keep displayed on the Furniture a notice containing in plain and legible print a statement that the Owner is the Owner of the Furniture and a statement of the restrictions contained in the above clause.
8 RISK, INSURANCE AND TITLE
8.1 The Hirer shall assume all risks and liabilities for and in respect of the Furniture and for injuries to or death of persons and damage to property howsoever arising and whether by negligence or otherwise, from the possession, use, maintenance, repair or storage of the Furniture, and hereby releases the Owner from all claims and actions relating to the same. The Hirer agrees to indemnify the Owner against the cost of repairs to Furniture which is damaged whilst at the Location.
8.2 If the Hirer does not have public liability insurance for the Location, the Hirer shall effect such insurance with an insurer of recognised standing for an amount of not less than $20,000,000 for any one incident and keep such policy current at all times whilst the Furniture is at the Location. The Hirer shall, on demand, produce to the Owner evidence to the Owner’s satisfaction that the current insurance premiums have been paid and that the insurance required hereunder is in force.
8.3 The Hirer shall not do any act or thing which might in any way invalidate or prejudice any such insurance.
8.4 The Owner always remains the owner of the Furniture. The Hirer holds the Furniture as bailee only during the Hire Period. The Owner always retains title to the Goods even if the Hirer goes into bankruptcy or liquidation during the Hire Period.
8.5 The Furniture shall be at the Hirers risk from the Commencement.
9 DEFAULT AND TERMINATION AND FURNITURE RECOVERY
9.1 Either party may terminate this Agreement immediately by giving notice to the other party, if:
9.1.1 That other party breaches any term of the Agreement and fails to remedy the breach within 14 days of written notification of the breach; or
9.1.2 That other party becomes bankrupt or insolvent, executes a personal insolvency agreement, enters into liquidation, administration, receivership or ceases to carry on business.
9.2 The Owner may terminate the Agreement for any other reason on 24 hours notice.
9.3 These rights of termination are in addition to any other rights either party has under the Agreement and does not exclude any right or remedy under law or equity.
9.4 If the Hirer is in breach of the Agreement or if the Agreement has been terminated under this clause, the Owner may take all steps necessary (including legal action) to recover and repossess the Furniture, including entering the Location to do so. Upon receiving written notice from the Owner, the hirer expressly consents to the Owner entering the Location for the purposes of recovering the Furniture. The Hirer indemnifies the Owner against any liability, damage, loss, cost, charge or expense arising directly or indirectly out of the Owner exercising its right of entry.
10 NO WARRANTIES
10.1 All warranties and conditions are excluded to the full extent permitted by law and the Owner’s only obligation resulting from a breach by it of any condition or warranty is limited to the supplying of the Furniture or to the repair of the Furniture.
10.2 This clause does not affect any rights the Hirer may have under the Australian Consumer Law or other law if, and to the extent that those rights may not be lawfully excluded or modified under this Agreement.
11.1 The Hirer consents to the Owner affecting and maintaining a registration on the register (in any manner the Owner considers appropriate) in relation to any security interest contemplated or constituted by this Agreement in the Furniture and the proceeds arising in respect of any dealing in the Furniture and the Hirer agrees to sign any documents and provide all assistance and information to the Owner required to facilitate the registration and maintenance of any security interest. The Owner may at any time register a financing statement or financing change statement in respect of a security interest (including any purchase money security interest). The Hirer waives the right to receive notice of a verification statement in relation to any registration on the register of a security interest in respect of the Furniture.
11.2 The Hirer undertakes to:
11.2.1 do anything (in each case, including executing any new document or providing any information) that is required by the Owner:
(a) so that the Owner acquires and maintains one or more affected security interest under the PPSA in respect of the Furniture and its proceeds;
(b) to register a financing statement or financing change statement; and
(c) to ensure that the Owner’s security position, and rights and obligations, are not adversely affected by the PPSA;
11.2.2 not register a financing change statement in respect of the security interest contemplated or constituted by this Agreement without the Owner’s prior written consent; and
11.2.3 not register, or permit to be registered, a financing statement or a financing change statement in relation to the Furniture in favour of a third party without the Owner’s prior written consent.
11.3 If chapter 4 of the PPS Act would otherwise apply to the enforcement of a security interest arsing under or in connection with this Agreement and:
11.3.1 section 115(1) of the PPS Act allows for the contract out of provisions of the PPS Act, the following provisions of the PPS Act will not apply and the Hirer will have no rights under them: section 95 (to the extent that it requires a secured party to give notices to the grantor); section 96; section 118 (to the extent that it allows a secured party to give notices to the grantor): section 121(4); section 125; section 130: section 132(3)(d); section 132(4); section 135; section 142 and section 143;
11.3.2 section 115(7) of the PPS Act allows for the contract out of provisions of the PPS Act, the following provisions of the PPS Act will not apply and the Hirer will have no rights under them: section 127; section 129(2) and (3); section 130(1); section 132; section 134(2); section 135; section 136(3), (4) and (5) and section 137.
11.4 Unless otherwise agreed and to the extent permitted by the PPSA, the Hirer and the Owner agree not to disclose information of the kind referred to in section 275(1) of the PPS Act to an interested person, or any other person requested by an interested person. The Hirer waives any right the Hirer may have, or but for this clause may have had, under section 275(7)(c) of the PPS Act to authorise the disclosure of the above information.
11.5 For the purposes of section 20(2) of the PPS Act, the collateral is Furniture including any Furniture which is described in the Hire Order provided by the Owner to the Hirer from time to time. This Agreement is a security agreement for the purposes of the PPS Act.
11.6 The Owner may apply amounts received in connection with this Agreement to satisfy obligations secured by a security interest contemplated or constituted by this Agreement in any way the Owner determines in its absolute discretion.
11.7 The Hirer must not lease, hire, bail or give possession (“sub-hire”) of the Furniture 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 Hirer may not vary a sub-hire without the prior written consent of the Owner which may be withheld in its absolute discretion.
11.8 The Hirer 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 Furniture.
11.9 The Hirer must take all steps including registration under the PPS Act as may be required to:
11.9.1 ensure that any security interest arising under or in respect of the sub-hire is enforceable, perfected and otherwise effective under the PPS Act;
11.9.2 enable the Hirer 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
11.9.3 enable the Owner and the Hirer to exercise their respective rights in connection with the security interest.
11.10 To assure performance of its obligations under this Agreement, the Hirer hereby gives the Owner an irrevocable power of attorney to do anything the Owner considers the Hirer should do under this Agreement. The Owner may recover from the Hirer the cost of doing anything under this clause, including registration fees.
12.1 The Owner will comply with the National Privacy Principles in all dealings with the Hirer.
12.2 The Hirer agrees for the Owner to collect personal information about the Hirer including but not limited to its full name and address, driver’s licence, credit card details, date of birth, credit or business history and other personal information. The Hirer consents to the Owner using such personal information in order to:
12.2.1 fulfil functions associated with the hire of Furniture through the Hirer, including but not limited to assessing the Hirer’s credit worthiness;
12.2.2 provide services to the Hirer;
12.2.3 prevent theft of the Furniture;
12.2.4 enter into Agreements with the Hirer or third parties; and
12.2.5 to market to the Hirer and maintain a client relationship with the Hirer.
12.3 The Hirer also consents to the Owner disclosing personal information:
12.3.1 to any credit provider or credit reporting agency for the purposes of obtaining information about the Hirer’s consumer or commercial credit or business history or the Hirer’s commercial activities or credit worthiness;
12.3.2 the Owner’s service providers, contractors and affiliated companies from time to time to help improve and market the Owner’s services to the Hirer.
12.4 The Hirer has the right to access the personal information the Owner holds about the Hirer.
13 FORCE MAJEURE
13.1 The Owner will not be liable for the consequences of any circumstance reasonably beyond the Owner’s control which affects its obligations under this Agreement.
14 GOVERNING LAW
14.1 This Agreement is governed by the law of the State of South Australia, and the parties submit to the jurisdiction of the courts of that State.
15.1 Any notice required or authorised to be given or served upon a party pursuant to the Agreement shall be in writing and shall be sent by email transmission, or post to the relevant party at its address appearing in the Hire Order.
15.2 A notice given or served in accordance with the above clause shall be deemed to have been received:
15.2.1 in the case of a notice sent by email, on the day following the day of emailing;
15.2.2 in the case of a notice sent by post within Australia, on the second day following the day of posting.
16 PARTIES TO THIS AGREEMENT
16.1 The person signing any document which forms part of the Agreement for and on behalf of the Hirer hereby warrants that he or she has the Hirer’s authority to enter into the Agreement on the Hirer’s behalf and grant the security interests in connection with it and is empowered to bind the Hirer to the Agreement and each security interest granted in connection with it.
16.2 In the event the Hirer is a partnership, corporate entity or the Trustee of a trust, the person/persons who submits a Hire Order thereby acknowledges and confirms that person/persons has/have the authority to bind the partnership/corporate entity/Trustee of the Trust and that partnership/corporate entity/Trustee of the Trust is bound in accordance with these Terms and Conditions. The person/persons who submits the Hire Order as indicated in this clause confirm and acknowledge, in consideration of the Owner hiring the Furniture to the Hirer, that he/she/they personally guarantee the payment of any monies and the performance of any act, matter or thing set out in these Terms and Conditions, in default of the Hirer paying such monies or doing the act, matter or thing.
16.3 Where the Hire Order is placed by any person on behalf of the Hirer, payment by the Hirer will be deemed as ratification of the Hire Order by the Hirer.