CLIMATE RENTAL SOLUTIONS PTY LTD
(ABN:51 429 407 660)
1.1 ‘CRS’ is Climate Rental Solution Pty Ltd (trustee for the Climate Rental Solutions Unit Trust).
1.2 ‘Customer Documents’ means (a) if you are the Recipient, the delivery docket; and/or (b) if you are the Hirer, the (i) email correspondence (including any terms attached to it) described in clause 2.1(b) or (ii) any order form you
have completed online, for the rental of the Equipment.
1.3 ‘Damage Waiver Fee’ means any fee described as such in the Customer Documents.
1.4 ‘Damage Waiver Excess’ means 10% of the Rental Fees paid or payable over the Rental Period.
1.5 ‘Equipment’ means the equipment rented by CRS to Hirer under the Customer Documents.
1.6 ‘Fees’ means the Rental Fees, any Damage Waiver Fee and any other charges specified in the Order Form, including for transportation, delivery and installation of the Equipment.
1.7 ‘Hirer’ means a person / entity stated in the Customer Documents as responsible for paying Rental Fees for the Equipment (and may or may not be the same as the Recipient).
1.8 ‘Off-Hire Number’ means a number allocated by CRS to a unit of Equipment to indicate that it has been returned in a clean and fit state for re-hire by CRS (or if not, that it has been cleaned and fixed by CRS to return it to that state).
1.9 ‘PPSA’ means the Personal Property Securities Act 2009 (Cth) and all associated regulations.
1.10 ‘Recipient’ means a person / entity to whom the Equipment is stated to be (or to have been) delivered under the Customer Documents; and includes, where the context permits, all its employees, officers, agents and contractors.
1.11 ‘Rental Contract’ means these terms and the Customer Documents applying to you.
1.12 ‘Rental Fees’ means any rental amounts stated in the Customer Documents.
1.13 ‘you’ and “your” refers to the Hirer and/or Recipient as the case may be; and includes, where the context permits, all of your employees, officers, agents and contractors.
2. Rental of Equipment
2.1 When CRS agrees to rent Equipment to you (as Hirer), CRS will also agree with you where, when and to whom the
Equipment should be delivered. CRS will then:
(a) require the Recipient to sign a delivery docket. On signing it, the Recipient will be bound to these terms on its own behalf and as agent for Hirer; and
(b) unless you have already accepted these terms on CRS’s website when completing an online order, send these terms (as well as contract details, including the Equipment rented and the start date of, and Fees payable for, that rental) by email. You (as Hirer) will be deemed to accept these terms, if you continue to possess (or allow Recipient to possess) the Equipment for more than 2 business days after your receipt of the email. If you do not wish to accept these terms, you must (within that 2 business day period) notify CRS of this and arrange for prompt repossession by CRS of the Equipment from the Recipient, in which case these terms will cease to apply from the date of repossession (but you must pay for any days of possession you or Recipient have had, at the rates specified in the Customer Documents – and this obligation survives terminate or expiry of these terms).
2.2 The rental period starts from the date stated in the Rental Contract and continues until the Equipment (a) is returned to CRS, (b) is in a fit state that it can be rented to other customers (c) has, as a result, been given an Off-Hire Number by CRS (the ‘Rental Period’) – provided however, that unless explicitly agreed in writing in the Customer Documents:
(i) the Rental Period (including all holding over periods and renewals) may never exceed 364 days, and
(ii) if you wish to rehire or hold over the Equipment after expiry of 364 days, you must enter into a separate hiring agreement under these terms (but subject to new Customer Documents).
2.3 You must allow CRS to repossess the Equipment on reasonable prior written notice, if CRS requires. CRS may terminate the Rental Contract at any time for convenience.
2.4 CRS may inspect the Equipment at any time on reasonable prior written notice, during the Rental Period. You will give CRS access to any premises where the Equipment is located.
2.5 CRS retains title to the Equipment. You may use the Equipment as a mere bailee only.
3.1 Unless otherwise stated in the Customer Documents, at the start of the Rental Period, the Hirer will pay the first week of Rental Fees, the Damage Waiver Fee and any further Fees for CRS’ delivery and installation of the Equipment (‘Initial Fee’). (A further Fee may also be payable by the Hirer if the Hirer or the Recipient causes delays in delivery or installation.)
3.2 Following payment of the Initial Fee, the Hirer must pay CRS the Rental Fee instalments for the full Rental Period, in accordance with the payment terms in the Customer Documents – provided however, that Hirer will not be liable to pay Rental Fees during any time in which the Equipment is not operating or suffers material defects (so long as the obligations under clause 4.5 are complied with and the causes in clauses 7.4(a) to (f) do not apply).
3.3 If the Hirer does not pay the Fees or other charges by the due date, CRS may:
(a) charge the Hirer interest at 10% (calculated daily) on the total amount outstanding; and
(b) charge the Hirer all costs CRS incurs in recovering any such unpaid amounts (including debt recovery fees and legal costs, on a solicitor/own client basis), plus interest under paragraph (a) above.
3.4 In addition to any Fees and charges payable under the Rental Contract, the Hirer must pay CRS any GST assessed as payable by CRS, plus any stamp duty or other government levy, tax, penalty, fine, toll or charge, relating to the agreed arrangement under the Rental Contract. A further charge will also apply to payments made by credit card.
4. Your undertakings
4.1 You must use the Equipment only for its intended purpose, in accordance with any specifications and user manuals supplied with it and any operating instructions provided by CRS (whether orally or in writing) from time to time.
4.2 You must not, without CRS’s prior written consent, tamper with, repair or modify the Equipment (including by removing or defacing any safety notices, trade marks or serial numbers) in any way, or permit anyone else to do so.
4.3 You (as Recipient, and on behalf of Hirer if a separate person or entity) acknowledge that you have inspected the Equipment at the time of renting it, and that it is in clean and good working order, complies with its description, is in merchantable condition and is fit for the purpose to which you intend to put it.
4.4 If the Rental Period exceeds 90 days, you must either (i) re-test and re-tag the Equipment (in accordance with the manufacturer’s instructions and any applicable Australia Standards and Regulatory Authority requirements) at your cost – in which case, any damage caused to the Equipment through incorrect testing will be your responsibility, or
(ii) pay CRS its reasonable fee to attend the premises where it is used and do so.
4.5 You must notify CRS within 24 hours of becoming aware that the Equipment has been damaged or has ceased to operate properly.
4.6 You must also notify CRS within 7 days of:
(a) Any change in your corporate name or ownership;
(b) Any proceedings issued against you;
(c) You becoming in any threat of insolvency, liquidation, receivership or administration.
5. CRS’ obligations:
5.1 CRS will:
(a) Provide the Equipment in a clean and fit state, tested and tagged;
(b) Allow you to use the Equipment for the Rental Period, subject to these terms;
(c) Subject to clause 4.5, repair or replace any Equipment that fails to operate properly because of fair wear and tear during ordinary use; and
(d) Comply with its applicable obligations under the Privacy Act 1988 (Cth).
You may only on-hire the Equipment to a third party if you are the Hirer, and then only with CRS’s prior written consent (which may be given by way of a blanket consent for some customers). If CRS gives such consent, or if you (as Hirer) allow use by a separate Recipient, then you:
6.1 remain liable to CRS under the Rental Contract as though the on-hire or separate use had not occurred and will be responsible for the acts and omissions of your customer / the Recipient;
6.2 must not register any interest in Equipment as “serial numbered goods” under the PPSA; and
6.3 must, if (despite clause 2.1) the Rental Period ever exceeds 364 days, take all necessary steps, including registration (as non-serial numbered goods) under the PPSA to:
(a) ensure that any security interest arising as a result of the on-hire is enforceable, perfected and effective under the PPSA;
(b) allow you to gain (subject to CRS’s rights) first priority for that security interest; and
(c) allow both of us to exercise our rights in connection with the security interest.
7. Damage Waiver
7.1 The Damage Waiver Fee will be charged to Hirer unless CRS agrees in the Customer Documents that it will not.
7.2 Where a Damage Waiver Fee is not charged, you (as Hirer):
(a) accept responsibility for the full cost of replacing (based on CRS’ then current list price for new Equipment) or reinstating the Equipment, in the event of loss, theft or damage to the Equipment during the Rental Period; and
(b) must, on request by CRS, provide to CRS sufficient evidence that you have current and adequate insurance policies in place (that note CRS’ interest and have a waiver of subrogation against CRS), insuring the Equipment throughout the Rental Period for its full replacement or reinstatement cost.
7.3 If the Hirer has paid a Damage Waiver Fee, CRS waives its right to claim for loss and damage to the Equipment to the extent caused by fire, storm, collision, accident or theft, provided that Hirer (a) promptly provides a written police report (where necessary) to CRS and (b) has taken (and ensured that Recipient has taken) adequate precautions to protect the Equipment and ensure that premises where the Equipment was held were reasonably secured and protected against the relevant event.
7.4 Excluded from the operation of clause 7.3, is loss and damage:
(a) caused by your (or Recipient’s) negligence, intentional damage/misconduct or misuse of the Equipment (including failure to operate it in accordance with any specifications or instructions provided) or breach of law;
(b) arising from the lack of normal servicing of the Equipment during the Rental Period or breach of clause 4.4;
(c) caused by overloading or artificial electrical current;
(d) caused by exposure to any corrosive or caustic substances;
(e) caused through vandalism, burglary or theft; and/or
(f) caused during transport or installation by anyone other than CRS.
8. Customer Responsibility
Subject to clause 7, you will be responsible (and will fully reimburse CRS) for any loss or damage to the Equipment howsoever occurring, during the Rental Period.
9. Liability and Indemnities
9.1 You acknowledge and agree that, to the full extent permitted by law:
(a) CRS, its officers, employees and agents will not be liable to you (including in negligence) for any loss or damage you suffer in connection with the Equipment or this Rental Contract; and
(b) Except for consumer guarantees that cannot be excluded, CRS excludes all terms implied by law and, except
where CRS’ equipment hire services or advice have been provided for domestic or household use or consumption, CRS’ liability is limited to the repair or replacement of the Equipment, the payment of the cost of the Equipment hire, or the resupply of the services.
9.2 To the full extent permitted by law, you:
(a) release, discharge and indemnify CRS from all claims and demands arising out of or consequent on use or misuse of the Equipment during the Rental Period;
(b) release and discharge CRS from any loss or cost you suffer because of (a) any delay in the delivery, installation or collection of Equipment which is beyond CRS’ reasonable control or (b) the Equipment ceasing to operate;
(c) assume all risks and liabilities for, and in respect of, the Equipment and any injury to or death of persons and any damage to property howsoever arising from possession, use, maintenance, repair, storage or transport of the Equipment.
9.3 This clause survives the termination of the Rental Contract.
10.1 Except as allowed under clause 6 (and provided that you, as Hirer, comply with that clause), you must not create or register, or allow any third party to create or register, any security interest (or financing statement) in or relating to the Equipment, without CRS’ prior written consent.
10.2 You consent to CRS registering and maintaining on the PPSA register, any security interest (and associated financing statement or financing change statement): (a) in the Equipment, arising out of the Rental Contract, and/or
(b) in respect of any proceeds arising from any dealing in the Equipment.
10.3 You will take all steps CRS requests (including signing any documents) to facilitate such registration / maintenance and you waive your right to receive a verification statement notice regarding the Equipment.
10.4 You and CRS agree, to the extent allowed by law, not to disclose information of the kind referred to in section
275(1) of the PPSA to any interested person (and you waive any right you may otherwise have had to authorise such disclosure).
10.5 You must notify CRS immediately in writing of any material change to any information you have provided in or in connection with the Customer Documents.
10.6 To the extent the PPSA allows CRS to do so, CRS contracts out of (and you will have no rights under) sections 95, 96, 118, 121(4), 125, 127, 129(2) and (3), 130, 132, 134(2), 135, 136(3),(4) and (5), 137, 142 and 143 of the PPSA.
If you (or where Hirer and Recipient are separate persons / entities, if either of them):
11.1 breach any provision of the Rental Contract in a material way; or
11.2 fail to pay any Fee or other charge under the Rental Contract when agreed; or
11.3 do not returned the Equipment to CRS when agreed,
CRS may repossess the Equipment at Hirer’s cost (and you must allow CRS to enter any premises to remove the
Equipment), cancel any insurances effected in respect of the Equipment, terminate the Rental Contract and/or sue for damages for any loss suffered by CRS as a result.
12. End of Rental Period
When you (as Hirer) wish to end your rental of the Equipment, you must:
12.1 provide CRS with at least 5 business days’ notice, and agree with CRS a time when the Equipment will be
returned (or can be collected by CRS, in which case, you will ensure that CRS can readily access
(unobstructed) and collect the Equipment from the agreed location at the agreed time); and
12.2 ensure the Equipment is in a clean and fit condition for re-hire.
You (as Hirer) must pay all reasonable fees and costs charged by CRS, relating to CRS’ collection of the Equipment. If you fail to comply with this clause, you may also be required by CRS to pay reasonable fees for (i) any necessary cleaning and/or repair and (ii) delays you (or the Recipient) cause.
13. General provisions
13.1 Any variation to these terms must be agreed in writing, signed by the parties.
13.2 All notices under these terms must be in writing.
13.3 The parties will negotiate in good faith to settle any dispute arising in relation to these terms or the rental, with the assistance of the Hire and Rental Association of Australia, before commencing litigation.
13.4 These terms and any dispute under them will be governed by the laws of the State of Victoria, Australia.
13.5 If a provision of these terms is held illegal, void or unenforceable, it will be severed so that the remainder of the agreement continues to be legal and enforceable.
14. Force Majeure
No party is liable for any failure or delay in performing its obligations under the Rental Contract to the extent due to anything beyond that party’s reasonable control. This clause does not apply to any obligation of a Hirer to pay money.