Agreement means these Terms and Conditions, Quotation and the Tax Invoice issued to the Hirer;
Consequential Loss means loss of expected savings, loss of use, loss of opportunity, loss of profit, loss of revenue, increased financing costs, loss arising from delay, or any consequential, special or indirect loss or damage whether or not the possibility or potential extent of the loss or damage was known or foreseeable and whether arising from a claim under indemnity, contract, tort (including negligence), statute or otherwise;
Goods mean any goods and products supplied by the Owner to the Hirer;
Hire Period means the period for which the Goods are hired, as shown on the order or as agreed between the Owner and Hirer;
Hire Price means the price of the Goods or Services set out in the relevant Quotation or Tax Invoice;
Hirer means the person or entity hiring Goods from the Owner;
Insolvency Event means any of the following in relation to a Hirer:
being in liquidation, provisional liquidation, bankruptcy or under administration;
being unable to pay debts as they fall due and payable;
ceasing to be of full legal capacity;
taking any step that may cause the Hirer to become an insolvent under administration;
entering into any compromise, scheme of arrangement, or assignment for the benefit of any of the Hirer’s members or creditors.
Loss means any expense, cost or damage of any kind and includes Consequential Loss and a fine or penalty imposed by a statutory or other authority;
Owner meansPerth Expohire and Furniture Group (ABN 71 916 718 729) trading as Furniture Hire and Styling Australia;
PPSA means the Personal Property Security Act 2009 (Cth);
Quotation means a written quotation provided by the Owner to the Hirer;
Services mean services provided by the Owner in relation to the hire of Goods;
Site means the place at which the Goods are delivered or installed by the Owner;
Tax Invoice means an invoice of the Owner issued to the Hirer; and
Terms and Conditions means these Terms and Conditions as amended from time to time.
The Terms and Conditions, Quotation and the Tax Invoice constitute the entire agreement between the Owner and the Hirer. In the event of inconsistency between the Terms and Conditions, Quotation and the Tax Invoice, the terms of the Terms and Conditions and Tax Invoice shall prevail over the Quotation to the extent of the inconsistency.
In the Terms and Conditions words in the singular shall be construed so as to include the plural.
If the Hirer is a body corporate, trust or any other entity, the office holders of the Hirer agree that they are legally bound to the Agreement in their capacities as an office holder of the relevant entity and also in their personal capacity on a joint and several basis.
The termination of this Agreement under any clause of this Agreement shall not affect the right of the Owner to recover from the Hirer any monies due at the date of termination or to recover damages in respect of any breach of the Agreement by the Hirer.
3. Quotations and Tax Invoices
Any Quotation provided by the Owner incorporates these Terms and Conditions.
Unless withdrawn, revoked or amended by the Owner, a Quotation is valid for 30 days.
A Quotation does not create an obligation for the Owner to hire Goods. A contractual relationship only arises between the Owner and the Hirer when the Hirer’s order has been accepted by the Owner in writing.
The Owner is not bound by any conditions that have been attached by the Hirer to any order or acceptance of a Quotation unless the Owner has expressly agreed to them in writing. The Hirer acknowledges that these conditions will be expressly negated.
The Owner will provide the Hirer with a Tax Invoice after acceptance of the Quotation. The Tax Invoice may include the following details:
the Goods to be hired by the Hirer;
the Hire Period for the Goods;
the Hire Price to be paid for the hire of the Goods;
any bond to be deposited with the Owner;
charges for the delivery and installation of the Goods; and
accidental damage waiver.
If the Tax Invoice does not state the Hire Period for the Goods, the Hire Period will be deemed to be a minimum period of 1 month commencing from the date the Owner delivers the Goods to the Hirer’s Site and shall continue until:
the Hirer provides the Owner no less than 96 hours’ notice to the Owner to collect the Goods; and
the Owner collects the Goods from the Hirer’s Site.
The Hire Price for the hire of the Goods will be the price indicated on the Tax Invoice, subject to clause 4.3.
Where the Hire Price excludes GST, the Hirer must also pay GST on the Hire Price, where applicable.
The Hirer must pay to the Owner on demand, in addition to the Hire Price, the following costs and expenses, if applicable:
delivery of the Goods, including any additional costs for delivery to other than street level;
if the Site is not adequately prepared for delivery and or installation of the Goods;
if the Owner cannot obtain access to the Site;
a variation to the Quotation, including without limitation: a change in the type and quantity of Goods required, a change in the position where the Goods have to be or has been installed upon the Site, a change in the location of the Site; or a change in the delivery or pick up instructions from those first agreed;
in repairing, cleaning or replacing Goods where they have been returned in a state that requires the Goods to be repaired, cleaned or replaced;
pick up of Goods from the Site at the end of the Hire Period; and
accidental damage waiver payable by the Hirer to cover all costs associated with the normal wear and tear to the Goods and any accidental damage to Goods.
Unless the Owner has provided notice through a Tax Invoice for payment for the Goods by periodic instalments, payment for the Goods must be made in advance by the Hirer in full at the time the Owner accepts the order.
The Hirer must pay to the Owner any applicable bond, taxes, transport or installation costs for the delivery of the Goods.
If the Goods are to be paid by periodic instalments, the initial payment must be made at the time the Owner accepts the Hirer’s order, and each subsequent instalment is to be paid on the monthly anniversary of the initial payment. The initial payment will include all applicable bond or delivery or installation costs as specified by the Owner.
The Owner is not obliged to deliver possession of the Goods to the Hirer until payment of the price stated in the Tax Invoice is made in clear funds, subject to the terms of payment in this clause 5.
In the event that the Owner holds an applicable bond paid by the Hirer, the Owner may refund the bond to the Hirer at the completion of the Hire Period, subject to the Owner’s discretion to deduct from that bond all or any amounts owed to the Owner by the Hirer for the costs required to:
transport the Goods back to the Owner’s business premises; or
repair, service or clean the Goods to the Goods’ original condition before the commencement of the Hire Period; or
replace the Goods with reasonably similar or the same Goods if repairing, servicing or cleaning the Goods will not bring the Goods back to its original condition before the commencement of the Hire Period.
6. Overdue Accounts and Security
Any amount not paid by the due date will incur interest at a rate of 5% above the Reserve Bank of Australia Cash Rate calculated daily and compounded monthly. In no circumstances will the interest exceed 20% per annum.
The Hirer agrees to pay all costs and expenses (including legal costs on a full indemnity basis) incurred by the Owner in connection with the recovery of overdue amounts.
7. Retention of Title
The Owner retains the legal and equitable title to any Goods supplied to the Hirer.
The Hirer must keep the Goods safe and free from deterioration, destruction, loss or harm.
The Hirer must clearly designate the Goods as the property of the Owner and keep full and complete records of the physical location of the Goods and the ownership of the Goods by the Owner.
The Owner may at any time and from time to time inspect the Goods and the Hirer must allow the Owner access to the Site in order to carry out inspection of the Goods.
8. Security Interest
The retention of title arrangement in clause 7 is the grant of a security interest by the Hirer in favour of the Owner in respect of all present and after-acquired Goods supplied to the Hirer by the Owner.
The Hirer must immediately (if requested by the Owner) sign any documents, provide all necessary information and do anything else that may be required by the Owner to perfect the Owner’s security interest.
The Hirer agrees not to enter into any other security agreement that permits another person or entity to have or to register any security interest in respect of the Goods or any proceeds from the sale of the Goods prior to the Owner perfecting its purchase money security interest.
The parties agree that the Goods are to be used for direct and indirect commercial purposes only and the Owner need not comply with sections 95, 118, 121(4), 125, 130, 132(3)(d), 132(4), 135, 142 and 143 of the PPSA in relation to the Goods.
The Hirer waives any right it has to:
receive any notice it may have been entitled to receive under sections 95, 118, 121, 130, 132 or 135 of the PPSA;
apply to a court for an order concerning the removal of an accession under section 97;
object to a proposal to purchase or retain any collateral under section 130 or 135; or
receive a copy of a verification statement confirming registration of a financing statement or a financing change statement relating to any security interest the Owner may have in Goods supplied to the Hirer.
In clause 8.5 the following words “accession”, “collateral”, “financing statement”, “financing change statement”, “security agreement”, “security interest”, “perfected security interest” and “verification statement” have the meanings given to them in the PPSA.
Unless otherwise agreed and to the extent permitted by the PPSA the Owner and the Hirer agree not to disclose any information of the kind referred to in section 275(1) of the PPSA. The Hirer waives any right under section 275(7)(c) of the PPSA to authorise the disclosure of the above information.
The Hirer will not, without the prior written consent of the Owner:
sell, assign, mortgage, pledge, sublet, lend or otherwise deal with any of the Goods or any interest in them;
remove any of the Goods from the Site for the time being;
allow any of the Goods to be affixed to, or become fixtures of, the premises on which they are situated.
The Hirer will:
protect the Goods against distress, execution or seizure; and
not allow any lien to be created on any of the Goods.
9. Delivery & Risk
Risk in relation to any Goods passes to the Hirer on delivery.
The Hirer must provide the Owner with clear delivery, installation and pick up instructions prior to the commencement of the Hire Period.
Delivery of the Goods occurs:
(a) when the Hirer collects the Goods from the Owner’s premises; or
(b) if the Owner has agreed to deliver the Goods to the Hirer then delivery is when the Owner or its agent delivers the Goods to the Hirer’s Site.
Where the Hirer requests the Owner or its agent to leave Goods at an unattended Site the Goods shall be left at the Hirer’s risk.
The Hirer warrants that it has the right to access the Site, and that the Owner may access the Site to fulfil its obligations under this Agreement.
The Hirer agrees that the Goods delivered to the Hirer’s Site shall not be moved or delivered to another property without consultation and written approval of the Owner.
The Owner or its agents will not move Goods on the Hirer’s Site that is not the property of the Owner without the Owner’s prior written consent.
10. Cancellation of Orders
The Owner may cancel any order by written notice to the Hirer at any time.
If the Owner cancels any order, the Hirer shall not be entitled to any deposit, credit or allowance in respect of any payments previously made to the Owner.
The Hirer has no right to cancel any order which has been accepted by the Owner unless agreed by the Owner in writing.
If the Hirer wishes to cancel any order prior to delivery of the Goods, the Hirer must give at least 48 hours’ written notice to the Owner before the estimated delivery date and time of the Goods. A cancellation fee will be payable on demand by the Hirer if written notice is given less than 48 hours before the estimated delivery date and time of the Goods.
The Hirer is not entitled to any refund of the Hire Price or any deposit paid if the Hirer cancels any order or returns the Goods before the end of the Hire Period.
If the Hirer wishes to cancel an order after delivery of the Goods and before the expiration of the Hire Period, the Owner shall collect the Goods from the Hirer’s Site at the Hirer’s risk and expense and pay the Owner all moneys payable including the remaining balance of the Hire Price as liquidated damages.
11. Use and Maintenance of Goods in Original Condition
The Hirer acknowledges and agrees that the Goods must be maintained and used by the Hirer in accordance with any guidelines, operating manual or instructions (both written and verbal) provided by the Owner.
The Hirer acknowledges that a failure to properly maintain or use the Goods may lead to adverse consequences.
Goods must be returned to the Owner in original condition, clean, in good repair.
If the Goods are not returned to the Owner in original condition, clean or in good repair, the Hirer is responsible for, and shall pay on demand the cost of cleaning, maintaining, repairing or replacing the Goods hired by the Hirer subject to clause 11.5.
If the Owner’s cost of cleaning, maintaining, repairing or replacing the Goods hired under this Agreement exceeds $1,000.00, the Hirer will be responsible for, and shall pay on demand the sum of $1,000.00 being equivalent to the excess payable by the Owner under its insurance policy for the Goods.
12. Product descriptions
All descriptions, photographs, drawings, illustrations, weights, dimensions, performance data and all other particulars relating to Goods that are provided in any Quotation, catalogue, price list or other advertising material is only an approximation for information purposes and are subject to alteration without notice.
Unless otherwise agreed, the Owner may at its discretion supply an alternative brand or substitute product when necessary.
If the Hirer:
fails to comply with the Agreement or in respect of any obligation to pay money to the Owner;
suffers an Insolvency Event; or
makes any misrepresentation to the Owner,
the Owner may terminate the Agreement without notice to the Hirer and any unpaid balance of the Hirer’s account to the Owner will become immediately due and payable. The Hirer will not be entitled to any deposit, credit, allowance or payment already made to the Owner.
The Hirer agrees that it must:
pay, without deduction or set-off, the amount charged by the Owner for the Goods or Services supplied to the Hirer on delivery or performance, on the terms set out on the Tax Invoice and this Agreement;
pay any fee to register or maintain any security interest held by the Owner in respect of the Goods supplied to the Hirer; and
provide the Owner all reasonable assistance in locating and collecting the Goods.
Upon the Agreement being terminated pursuant to this clause 13, the Owner shall collect the Goods from the Hirer’s Site and at the Hirer’s risk and expense.
The Hirer acknowledges and agrees that the Owner or its employees or agents shall be entitled to enter the Hirer’s Site where the Goods are, or the Owner reasonably believes the Goods are, in order to re-take possession of the Goods. The Hirer indemnifies the Owner against any liability, damage, loss, cost, charge or expense arising directly or indirectly out of the Owner exercising this right of entry.
14. Warranties and Indemnities
The Hirer agrees that each order it places is a representation to the Owner that it is solvent and able to pay its debts as and when they fall due and payable.
The Hirer warrants that it has full power and authority to enter into this Agreement.
The Hirer acknowledges that the Owner, to the fullest extent permitted by law, does not provide any warranties with the Goods, expressed or implied.
The Hirer indemnifies the Owner against, and must pay to the Owner on demand, all losses, costs (including legal costs on a full indemnity basis), charges and expenses incurred by the Owner by reason of or in connection with any default by the Hirer under this Agreement and in the enforcement or attempted enforcement by the Owner of any of its rights or remedies in relation to any default.
15. Exclusion of Implied Terms
To the fullest extent permitted by law all terms, conditions, or warranties that would be implied into this Agreement under the Australia Consumer Law are excluded.
16. Limitation of Liability
To the fullest extent permitted by law, the Owner’s liability arising out of or in connection with its performance of its obligations under the Agreement to the Hirer is limited as follows:
the Owner shall have no liability to the Hirer for any Consequential Loss; or
to the extent that the liability for Loss is not as a result of fraud by the Owner or personal injury or death caused by the Owner’s default, breach or negligence the Owner’s total liability for Loss, however arising, shall not exceed the GST exclusive price paid by the Hirer to the Hirer for the particular Goods or Services that gave rise to the Loss.
The parties agree to take all reasonable steps to mitigate any Loss it suffers or incurs.
17. Goods and Services Tax (GST)
If the Owner has any liability to pay Goods and Services Tax (GST) on the supply of any Goods to the Hirer, the Hirer must pay to the Owner an amount equivalent to the GST liability of the Owner at the same time as the consideration is paid for the Goods (unless the consideration for that supply is expressed specifically to be GST inclusive).
The Owner may, at any time and from time to time, vary these Terms and Conditions and if the Owner does vary the Terms and Conditions it will provide notice in writing to the Hirer of any material changes.
In the event of a dispute between the Hirer and the Owner, the Hirer agrees to pay into an interest bearing account held in the joint names of the Owner and the Hirer any amount claimed by the Owner as a condition precedent to any dispute by the Hirer of any such claim.
Clause 19.1 shall act as a bar to any defence or claim by the Hirer until it has been complied with.
Once the dispute is resolved the money shall be paid out of the interest bearing account in accordance with the resolution.
20. Governing Law
The Terms and Conditions are governed by the laws of Western Australia and the parties agree to submit to the non-exclusive jurisdiction of the courts operating in Western Australia.