Hire Services - Terms and Conditions
EQUIPMENT HIRE AGREEMENT - TERMS & CONDITIONS
Baby Things Pty. Ltd. (ABN 77 619 305 494) (“Baby Things”) agrees to hire the Equipment to the Hirer on the terms and conditions set out in this document. If the Hirer wishes to hire Equipment from Baby Things, the Hirer must complete and sign (or otherwise accept in a manner required by Baby Things) an Equipment Hire Agreement and such other documents as Baby Things may require. Each Equipment Hire Agreement is not a separate agreement and the terms and conditions set out in this document form a part of the Equipment Hire Agreement between Baby Things and the Hirer. The Hirer agrees to receive this document, the Equipment Hire Agreement and all associated documentation by electronic means.
The following terms shall have the following meanings:
“Baby Things” has the meaning given in the first paragraph of this document.
“Claims” means any claim (whether actual or contingent), including a claim for loss, damages and expenses (including legal fees) arising out of tort, breach of statute, breach of warranty or guarantee or breach of this terms and conditions set out in this document.
“Equipment” means any and all equipment, including any accompanying tools, accessories and parts, hired to the Hirer, the details of which are more fully described in the Equipment Hire Agreement.
“Equipment Hire Agreement” means the agreement which Baby Things requires the Hirer to sign in order to hire the Equipment and such agreement shall include details of the Equipment, the Hire Period and such other information as Baby Things deems necessary.
“Hire Charges” means the amount specified in the Equipment Hire Agreement payable by the Hirer to hire the Equipment.
“Hire End Date” means the hire end date specified in the Equipment Hire Agreement.
“Hire Period” means the period commencing on the Hire Start Date and ending on the Hire End Date or such later date as determined in accordance with Clause 3.1.
“Hirer” means the hirer of the Equipment, the details of which are set out in the Equipment Hire Agreement.
“Hire Start Date” means the hire start date specified in the Equipment Hire Agreement.
“Security Deposit” means the security deposit amount specified in the Equipment Hire Agreement payable by the Hirer in connection with the hire of the Equipment.
- Hire of Equipment
- Baby Things agrees to hire the Equipment to the Hirer for the Hire Period and the Hirer agrees to pay the Hire Charge and any other applicable charges for the hire of the Equipment.
- Baby Things may in its sole and absolute discretion refuse to hire the Equipment to the Hirer.
- Hire Period
- The Hire Period commences on the Hire Start Date and ends on the later of:
- the Hire End Date; and
- the date on which the Equipment is returned to the physical possession of Baby Things
- If the Hirer seeks to return the Equipment prior to the Hire End Date, the Hirer agrees to pay the full Hire Charge and no refund of any part of the Hire Charge will be made in respect of any such early return of the Equipment.
- Hire Charges and Other Charges
- The Hirer agrees to pay Baby Things:
- all Hire Charges set out in the Equipment Hire Agreement on or prior to the Hire Start Date; and
- any other charges in connection with the installation (if applicable) of the Equipment.
- Immediately upon the request by Baby Things, the Hirer agrees to also pay:
- any additional Hire Charges payable by the Hirer if the Equipment is returned to Baby Things after the Hire End Date;
- the full cost of repairing any damage to the Equipment caused or contributed to by the Hirer;
- all costs incurred by Baby Things in recovering possession of the Equipment; and
- any expenses and legal costs incurred by Baby Things in enforcing the Equipment Hire Agreement due to the default by the Hirer.
- Without limiting the ability of Baby Things to recover all amounts owing to it, the Hirer authorises Baby Things to charge any amounts owing by the Hirer to any credit card or account details of which are provided to Baby Things.
- Security Deposit
- On or prior to the Hire Start Date, the Hirer agrees to pay a Security Deposit in connection with the hire of the Equipment. The payment of the Security Deposit will be made in the same manner as payment of the Hire Charges.
- Subject to Clause 5.3, the Security Deposit (free of any interest) is fully refundable to the Hirer upon return of the Equipment, provided the Equipment is returned to Baby Things undamaged and in the same condition as when the Equipment was received by the Hirer (ordinary fair wear and tear excepted) and the Hirer has complied fully with its obligations under the Equipment Hire Agreement.
- If the Hirer breaches any provision of the Equipment Hire Agreement and fails to remedy such breach within 7 days after Baby Things has notified the Hirer in writing of the breach, Baby Things shall be entitled but not obligated to set-off any loss suffered or expense incurred by Baby Things from the Security Deposit.
- The Hirer authorises Baby Things to deduct from the Security Deposit any amount due to Baby Things arising out of or in connection with the hire of the Equipment.
- Hirer’s Hire Obligations
- The Hirer must not allow nor authorise any other person or entity to use, re-hire or have possession of the Equipment at any time during the Hire Period.
- The Hirer must deliver at its own cost and expense the Equipment to Baby Things when it is due back on or prior to the end of the Hire Period.
- The Hirer agrees that before accepting the Equipment it has satisfied itself as to the suitability, condition and fitness for purpose of the Equipment without relying upon the skills or judgment of Baby Things or any person purporting to act on its behalf. The Hirer acknowledges and agrees that, to the extent permitted by law, Baby Things has not made any representation or warranty as to the suitability, condition and fitness for purpose of the Equipment or any other matter.
- The Hirer undertakes to operate the Equipment safely, strictly in accordance with the law, only for its intended use, and in accordance with any manufacturer’s instructions.
- The Hirer must:
- keep clean and maintain the Equipment in good condition and in accordance with the manufacturer’s and Baby Thing’s instructions at the Hirer’s cost and expense;
- not in any way alter, modify (including removing any identifying mark or plate), damage or repair the Equipment without the prior consent of Baby Things;
- return the Equipment to Baby Things in the same good and clean condition it was in when the Hirer received it, ordinary fair wear and tear excepted.
- If the Equipment has been installed by Baby Things, the Hirer must not tamper with the Equipment or change the method of installation without the assistance of Baby Things.
- The Hirer agrees to indemnify Baby Things for all injury and/or damage to the extent caused or contributed to by the Hirer to persons and/or property in relation to the Equipment and its operation and have adequate insurance to cover all liabilities incurred as a result of the use of the Equipment.
- The Hirer must report and provide full details to Baby Things of any accident or damage to the Equipment promptly after the accident or damage occurring.
- Title To And Responsibility For Hire Equipment
- The Hirer acknowledges and agrees that Baby Things retains title to the Equipment at all times (even if the Hirer goes into liquidation, external administration of any kind or becomes bankrupt during the Hire Period) and in no circumstances will the Equipment be deemed a fixture. The Hirer has no interest in the Equipment of any kind other than as a bailee.
- The Hirer is responsible for any loss, theft or damage to the Equipment (for any cause whatsoever) during the Hire Period, except where caused by Baby Things.
- If the Equipment is lost, stolen or damaged during the Hire Period, the Hirer is responsible for:
- the full cost of the repairs; or
- replacement (if it cannot be repaired) at Baby Things’ reasonable discretion; and
- continuing Hire Charges until the completion of the repair or replacement of the Equipment; and
- any other reasonable costs and expenses associated with the repair and/or replacement of the Equipment.
- Indemnities and Exclusion of Liabilities
- To the extent permitted by law (unless otherwise expressly set out in the Equipment Hire Agreement), all terms, conditions, warranties, undertakings, inducements or representations, whether express or implied, statutory or otherwise, relating to Baby Things’ obligations under the Equipment Hire Agreement are excluded.
- Nothing in the Equipment Hire Agreement limits any condition, guarantee or warranty imposed by legislation, including any Australian Consumer Law which may apply. Where Baby Things cannot exclude any condition, guarantee or warranty, it can limit its liability (at Baby Things’ election) to:
- in the case of goods, the repair or replacement of the Equipment (or the cost of repair or replacement);
- in the case of services, supplying the services again.
- Subject to Clause 8.2 and any legislation governing Baby Things’ obligations and liabilities, Baby Things’ liabilities (in tort, statute, contract, under an indemnity or howsoever arising) is limited to the Hire Charges paid under the Equipment Hire Agreement.
- Subject to Clause 8.2, Baby Things is not liable for consequential loss or damage (including but not limited to loss of actual or anticipated revenue, business interruption, delays, loss of production or economic loss of any kind) in contract, tort, under statute or otherwise.
- The Hirer is liable for and indemnifies Baby Things against any and all Claims arising out of or in connection with the Hirer’s hire and/or use of the Equipment or breach of the Equipment Hire Agreement, including person injury, damage to property and claims by third parties.
- Each indemnity is a continuing obligation and survives termination or expiration of the Equipment Hire Agreement.
If the Hirer breaches any clause whatsoever of the Equipment Hire Agreement and does not remedy the breach within 7 days’ notice of the breach, or becomes bankrupt, insolvent or ceases business:
- Baby Things shall be entitled to terminate the Equipment Hire Agreement; and or
- sue for recovery of all monies owing by the Hirer; and/or
- repossess the Equipment (and is authorised to enter any premises where the Equipment is located to do so).
- Notices: Any notice or other communication given to a party under or in connection with the Equipment Hire Agreement shall be in writing, addressed to that party at the address specified in the Equipment Hire Agreement Schedule or such other address as that party may have specified to the other party in writing in accordance with this clause, and shall be delivered personally, sent by pre-paid first class post or other next working day delivery service, commercial courier, fax or e-mail. A notice or other communication shall be deemed to have been received: (i) if sent by pre-paid first class post or other next working day delivery service, at 9.00 a.m. on the second business day after posting; (ii) if delivered by commercial courier, on the date and at the time that the courier's delivery receipt is signed; or (iii) if sent by fax or e-mail, one business day after transmission.
- Severability: If any provision or part-provision of the Equipment Hire Agreement is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to or deletion of a provision or part-provision under this clause shall not affect the validity and enforceability of the rest of the Equipment Hire Agreement.
- Waiver: A waiver of any right under the Equipment Hire Agreement or law is only effective if it is in writing and shall not be deemed to be a waiver of any subsequent breach or default. No failure or delay by a party in exercising any right or remedy provided under the Equipment Hire Agreement or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict its further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.
- Entire Agreement: The Equipment Hire Agreement constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.
- Amendment: The Equipment Hire Agreement may be amended by Baby Things from time to time by Baby Things giving notice of the amendment to the Hirer. Any amendment shall only apply to any Equipment Hire Agreement dated on or after the date any such amendment comes into effect. Notice is deemed given when Baby Things does any of the following:
- sends notice of the amendment to the Hirer (including via email); or
- publishes the amended terms on its website (babythings.com.au).
- Governing Law: The Equipment Hire Agreement is governed by the laws of New South Wales and each party submits to the exclusive jurisdiction of the courts of that state.