Terms & Conditions
CONDITIONS OF SELF STORAGE AGREEMENT
1. The Storer:
a. is deemed to have knowledge of the goods in the Space;
b. warrants that they are the owner of the goods in the Space, and/or are entitled at law to deal with them in accordance with all aspects of this agreement;
c. acknowledges that this agreement does not grant the Storer a lease of the Space;
d. acknowledges that the Space provided is approximately the size advertised but that due to building tolerances may vary slightly;
e. agrees that all time limits imposed on the Storer by this agreement must be complied with strictly.
2. The FO (which term includes its directors, employees, and agents):
a. does not provide any service other than a licence to use the Space to store goods;
b. does not and will not be deemed to have knowledge of the goods;
c. is not a bailee nor a warehouseman of the goods and the Storer acknowledges that the FO does not take possession of or any responsibility for the goods except as provided in clause 11 and 22.a.
3. Upon signing this Agreement, the Storer must pay to the FO:
a. the Deposit if applicable (which will be refunded on termination of this agreement less any deductions authorised by this agreement);
b. the Administration Fee.
4. The Storer must pay:
a. the Storage Fee which is payable in advance. It is the Storer’s responsibility to see that payment is made directly to the FO, on time and in full, throughout the Storage Period. The FO does not invoice for monthly fees. The FO may increase the Storage Fee any time after expiry of the Storage Period. The FO will give the Storer 42 days’ written notice of any increase. If the Storer does not agree to pay the increased fee, the Storer may terminate this agreement by giving the FO written notice any time before the end of the FO’s 42 day notice period;
b. the Cleaning Fee is payable at the FO’s discretion if the Space requires cleaning;
c. the Late Payment Fee or fees which become payable each time a Storage Payment is late;
d. any reasonable internal or external costs and disbursements incurred by the FO in collecting late or unpaid Storage Fees, or in enforcing this agreement in any way;
e. interest on outstanding Storage Fees at the rate of 15% per annum.
ACCESS TO AND CONDITIONS OF USE OF THE SPACE
5. The Storer:
a. may access the Space during the access hours notified by the FO from time to time;
b. is solely responsible for securing the Space in a manner acceptable to the FO, and will secure the Facility’s external gates or doors when entering or leaving outside access hours;
c. will not store any goods that are hazardous, illegal, stolen, inflammable, explosive, environmentally harmful, perishable or that are a risk to the property of any person;
d. will use the Space solely for the purpose of storage and must not carry on any business or other activity in the Space;
e. will maintain the Space by ensuring it is clean and in a state of good repair. If the Storer does not, the FO may deduct (at the FO’s reasonable discretion) the Cleaning Fee from the Deposit and/or charge an additional Cleaning Fee;
f. will ensure the goods are dry, clean and free from vermin and food scraps when placed in the Space;
g. may not physically alter or damage the Space in any way (including the use of screws or nails) without the FO’s prior consent. If the Space is damaged, the FO may charge the Storer for any repairs and may deduct repair charges from the Deposit;
h. cannot assign this agreement or let any other person store goods in the Space;
i. will notify the FO in writing of any change to the ACP or any change of contact details of the Storer or the ACP within 48 hours of the change;
j. grants the FO consent to discuss any default by the Storer with the ACP;
k. agrees to comply with all Facility rules and health and safety or other notices in respect of the Facility.
6. The FO may refuse access to the Space by the Storer where any money is owing by the Storer to the FO, whether or not a formal demand for payment has been made.
7. The FO reserves the right to relocate the Storer to another space of the same or similar dimensions as the Space for the proper management of the Facility. The FO will provide as much notice as reasonably practicable to the Storer of such a relocation and, unless agreed otherwise, the FO or its agent will carry out the relocation.
8. Any items left unattended in common areas or outside the Space at any time may, at the FO’s reasonable discretion be sold, disposed, moved or dumped immediately and at the expense and liability of the Storer.
9. The Storer acknowledges in accordance with clauses 1.c, 2.a and 5.d that the FO is only providing a licence to use the Space provided by the FO for the sole purpose of storing goods. The Storer acknowledges that the Storer has been given the opportunity to assess for itself the suitability of the Space.
10. If the Storer is using the Space for the purposes of business storage, then the guarantees and remedies in the Consumer Guarantees Act 1993 (“the Act”) are excluded.
11. If the Act applies, the FO’s services come with non-excludable guarantees, including that they will be provided with reasonable care and skill. Except to the extent of those non-excludable guarantees, the goods are stored at the sole risk and responsibility of the Storer who is responsible (subject to FO negligence) for any and all theft, loss, damage to, and deterioration of the goods, and shall bear the risk of any and all damage to goods stored in the Space caused by flood, fire, leakage or overflow of water, mildew, heat, spillage of material from any other space, removal or delivery of the goods, pest or vermin or any other reason.
12. No failure or delay by the FO to exercise its rights under this agreement will operate to reduce those rights.
13. This agreement constitutes the entire agreement between the FO and the Storer and supersedes and extinguishes all previous discussions, correspondence, negotiations, agreements, assurances, warranties, representations and understandings between them (both written or oral).
STORER RISK AND RESPONSIBILITY
14. The Storer warrants that it will not store items which are irreplaceable, such as currency, jewellery, furs, deeds, paintings, curios, works of art, or items of personal sentimental value or that are worth more than $2,000 (in aggregate) unless specifically itemised and covered specifically by insurance for the duration of storage.
15. The Storer is responsible for any loss, damage or injury to the Storer, the FO or the Facility, third parties, and/or the true owner of the goods stored in the Space, caused by the Storer or resulting from or incidental to the use of the Space by the Storer (including but not limited to the Storer or their agent’s actions, storage of goods in the Space, the goods themselves and/or accessing the Facility).
16. The Storer is responsible (and must pay) for loss or damage caused by a third party who enters the Space (or the Facility) at the request or direction of the Storer or who otherwise accesses the Facility using the Storer’s access card/code. The Storer is not responsible for loss or damage caused by the lost/stolen access card/code after it notifies the FO of the loss or theft of the access card/code.
17. If the FO enforces its rights under clause 16 and the loss or damage is caused by a third party outside the Storer’s control, the Storer may notify the FO of this and the FO will then assess the merits of the Storer’s claim to determine where liability should reasonably lie.
COMPLIANCE WITH LAWS
18. The Storer will comply with all relevant laws applicable to the use of the Space. This includes laws relating to the goods which are stored, and the manner in which they are stored. Liability for any breach of such laws rests absolutely with the Storer and includes all costs resulting from such breach.
19. If the FO believes at any time that the Storer is not complying with clause 18, the FO may (in its reasonable discretion):
a. take any action the FO believes necessary to ensure compliance, including inspection of the Space under clause 21 and/or termination under clause 24.b;
b. immediately dispose of or remove the goods in the Space at the Storer’s expense; and/or
c. contact, cooperate with and/or submit the goods to the relevant authorities.
The Storer agrees that the FO can take any such action at any time even though the FO could have acted earlier.
INSPECTION AND ENTRY BY THE FO
20. The Storer consents to inspection and entry of the Space by the FO on 14 days’ written notice.
21. In the event of an emergency, the FO may enter the Space using all necessary force without the prior written consent of the Storer. The FO will notify the Storer as soon as practicable of such entry. The Storer irrevocably consents to such entry. For the avoidance of doubt, an emergency includes but is not limited to where the FO believes that clause 5.c or 18 is being breached, or where property, the environment or human life is, in the opinion of the FO, threatened, or to allow access, inspection or seizure by relevant authorities.
22. The Storer acknowledges that:
a. All goods in the Space are subject to a general lien for all Storage Fees and any other amounts owing to the FO by the Storer. If the Storage Fee or any other sum owing by the Storer under this agreement is not paid in full within 42 days of the due date, the FO may enter the Space, retain the Deposit and/or take possession of any goods in the Space and may, at the FO’s sole discretion, do any one or more of the following:
i. sell the goods in one or more lots by private arrangement or public auction to offset any unpaid Storage Fee, Cleaning Fee, Late Payment Fee, or costs associated with collection of Fees and/or disposal of the goods; and/or
ii. dispose of the goods in any manner as the FO sees fit, whether for value or not, if the goods are unsaleable, remain unsold after being offered for sale, pose a health and safety risk, or are of insufficient value to warrant a formal sale process; and/or
iii. if the FO believes in its reasonable opinion that it is a health and safety risk to conduct an inventory of the goods in the Space, the FO may decide to dispose of some or all of the goods without conducting an inventory.
The FO will give notice in accordance with this agreement and permit a reasonable period for the Storer to rectify a default before taking possession and selling/disposing of goods.
b. If any money is recovered from the sale or disposal of goods, that money shall be used as follows:
i. first, to pay the costs of and associated with the sale or disposal of the goods;
ii. second, (subject to any rights under the Personal Property Securities Act 1999) to pay all Storage Fees and other fees, costs or disbursements owed to the FO and any other costs incurred by the FO in connection with re-entering the Space and selling or disposing of the goods;
iii. third, any excess will be sent to the Storer.
23. Notwithstanding clause 22.a, if the Storer is in breach of this agreement and the FO enters the Space for any reason and no goods are stored there, the FO may terminate this agreement immediately. The FO will send written notice of the termination to the Storer within 7 days of such entry.
24. This agreement may be terminated:
a. by either party after the Storage Period has ended on written notice as indicated on the front page to the other party, or, if the FO cannot contact the Storer, to the ACP; and
b. by the FO immediately without notice if the Storer breaches clause 3, 4, 5 or 18.
25. The Storer acknowledges that the Facility may use CCTV to view the inside of the Space and that the FO may use such CCTV footage as evidence of a breach of this agreement under clause 24.b.
26. If the Storer does not give the notice required to terminate under clause 24.a, the FO may deduct Storage Fees for the notice period from the Deposit.
27. On termination the Storer will:
a. remove all goods in the Space by the date specified by the FO and leave the Space in a clean condition and good state of repair to the satisfaction of the FO; and
b. pay any outstanding moneys and expenses on default calculated by the FO as being owed to the FO up to the date of termination.
28. If the FO reasonably believes that the Storer will not carry out its obligations under clause 27.a or the Storer does not respond in a reasonable period to notices sent by the FO, the FO may, but is not obliged to, permit the ACP to access the Space to carry out the Storer’s obligations under clause 27.a and the Storer irrevocably authorises the FO and the ACP to take this action.
29. If the Storer fails to remove all goods from the Space or the Facility on termination, the FO is authorised to (in its reasonable discretion) sell or otherwise dispose of all goods by any means 7 days from the termination date, regardless of the nature or value of the goods. The FO will give 14 days’ notice of the intended disposal.
30. Liability for outstanding money, property damage, environmental damage and legal responsibility under this agreement continues to run beyond the termination of this agreement.
31. Notices must be made in writing to the contact details set out on the front of this agreement. Notices given by the Storer to the FO must be actually received by the FO to be valid.
32. If the FO is not able to contact the Storer, notice is deemed to have been given to the Storer if the FO has sent notice to the Storer’s last notified address or via any other contact method, including by text or email to the Storer or the ACP.
33. If there is more than one Storer, notice to or by any single Storer is agreed to be sufficient for the purposes of any notice requirement under this agreement.
34. The FO:
a. may collect information about the Storer, including the Storer’s Personal Information (as defined in the Privacy Act 1993), to assist in the provision of storage to the Storer, maintaining the Storer’s account, and the FO’s enforcement of this agreement in any way; and
b. may disclose or search for any information about the Storer, including the Storer’s Personal Information, to Government departments, law enforcement agencies, including the police, any person who can demonstrate to the reasonable satisfaction of the FO a legal or equitable interest in the goods stored, liquidators, administrators or other persons appointed to administer the Storer’s financial affairs, debt collection services or credit reporting agencies, the ACP, agents for any of the above, Storer Check Pty Ltd.
35. The Storer warrants that the Storer:
a. has the right to disclose information to the FO about the ACP (including Personal Information) and that the FO may use this information as it would Personal Information collected about the Storer;
b. has informed the ACP that the Storer has made the disclosures referred to in clause 35.a.
36. The parties acknowledge and agree that the ACP may access and correct the information held by the FO in the same manner the Storer may correct its Personal Information.
CONDITIONS OF PARKING/STORAGE AGREEMENT
1. The Storer:
(a) may store Goods in the Space allocated to the Storer by the Facility Owner (“FO”), and only in that Space:
(b) has knowledge of the Goods in the Space;
(c) warrants that they are the owner of the Goods in the Space, and/or are entitled at law to deal with them in accordance with all aspects of this Agreement
2. The FO:
(a) is a bailee of the Goods (which includes all Goods stored in the Space at any given time) and
(b) has a general lien over all Goods until the FO receives payment of any sum due to it. If the FO does not receive payment within 6 months after payment is due, the FO may, subject to the PPSA and other terms of this Agreement including Clause 6, sell the Goods by public auction or private treaty, and/or return the Goods to the Storer’s last known address (“Redeliver”), and/or dispose of the Goods.
FEES, COSTS AND EXPENSES:
3. The Storer must upon signing the Agreement pay to the FO:
(a) the Deposit (which, when applicable, will be refunded within 30 days of termination of this Agreement); and/or
(b) any other Fee(s) specified on the front of this Agreement or in any Fee Schedule.
4. The Storer is responsible to pay:
(a) the Storage Fee being the amount indicated in this Agreement or any reasonable increase as notified to the Storer by the FO. The FO will provide no less than 28 days’ notice of any intended increase. Where the Storer objects to the increase they may, before the expiration of the 28 days’ notice, terminate the Agreement and move out giving no less than 24 hours’ notice. The usual notice period is waived. The Storage Fee is payable in advance and it is the Storer’s responsibility to make payment directly to the FO on time, and in full, throughout the period of storage. Any Storage Fees paid by direct deposit/direct credit (“Direct Payment”) will not be credited to the Storer’s account unless the Storer identifies the Direct Payment clearly and as reasonably directed by the FO. The FO is indemnified from any claim for enforcement of the Agreement, including the sale or disposal of Goods, due to the Storer’s failure to correctly identify a Direct Payment;
(b) the Cleaning Fee, as indicated on the front on this Agreement, is payable at the FO’s reasonable discretion;
(c) a Late Payment Fee, as indicated on the front on this Agreement, which becomes payable each time a payment is late;
(d) any reasonable costs incurred by the FO in collecting late or unpaid Storage Fees, maintaining the Goods, selling the Goods in enforcement of lien, or in enforcing this Agreement in any way, including but not limited to postal, telephone, debt collection, personnel and/ or the Default Action costs.
5. The Storer will be responsible for payment of any government taxes or charges (including any goods and services tax) being levied on this Agreement, or any supplies pursuant to this Agreement.
(a) Notwithstanding clause 23, and subject to clause 6 (b), the Storer acknowledges that, in the event of the Storage Fee, or any other moneys owing under this Agreement, not being paid in full within six (6) months of the due date, the FO may enter the Space, by force or otherwise, retain any Deposit, redeliver the Goods to the last advised address of the Storer, and/or sell or dispose of any Goods in the Space on such terms that the FO may determine (“Default Action”). For the purposes of the Personal Property Securities Act 2009, the FO is deemed to be in possession of the Goods from the moment the FO accesses the Space. The Storer consents to and authorises the sale or disposal of all Goods regardless of their nature or value. The FO may also require payment of Default Action costs, including any costs or Expenses associated with accessing the Storer’s Space, maintaining the Goods, redelivery of the Goods, disposal and/or sale of the Storer’s Goods. In the event that the Storer has more than one Space, default on any space authorises the FO to take Default Action against all Spaces. Any excess funds will be returned to the Storer within 6 months of the sale of goods.
In the event that the Storer cannot be located, excess funds will be deposited with the Public Trustee or equivalent authority.
(b) At least 14 days before the FO can take any Default Action the FO will provide the Storer with Notice that the Storer is in Default. The FO will provide the Storer with reasonable time to rectify the Default before any Default Action is taken.
(c) If the FO reasonably believes it is a health and safety risk to conduct an inventory of Goods in the Space, subject to the FO providing the Storer with reasonable prior notice to pay outstanding moneys and collect the Goods, the FO may dispose of some or all of the Goods without undertaking an inventory. Further, due to the inherent safety risks in relation to undertaking any sale or disposal of Goods whereby the FO must handle the Storer’s Goods, the FO need not open or empty bags or boxes to undertake an inventory or asses the contents therein. The FO may elect to instead dispose of all bagged and/or boxed items without opening them.
RIGHT TO DUMP:
7. If, in the reasonable opinion of the FO a defaulting Storer’s Goods are either not saleable, fail to sell when offered for sale, may pose a health risk to staff or the public if handled, or are not of sufficient value to warrant the expense of attempting to sell, the FO may dispose of all Goods in the Storer’s Space by any means.
8. Further, upon Termination of the Agreement (Clause 23) by either the Storer or the FO, in the event that a Storer fails to remove all Goods from their Space or the Facility the FO is authorised to dispose of all Goods by any means 7 days from the Termination Date, regardless of the nature or value of the Goods. The FO will give 7 days’ notice of intended disposal.
9. Any items deemed left, in the FO’s reasonable opinion, unattended in common areas or outside the Storer’s Space at any time may at the FO’s reasonable discretion be sold, disposed, moved or dumped immediately and at the expense and liability of the Storer.
ACCESS AND CONDITIONS:
10. The Storer:
(a) has the right to access the Space during Access Hours as advised by the FO and subject to the terms of this Agreement;
(b) must not store any Goods that are hazardous, dangerous, illegal, stolen, flammable, explosive, environmentally harmful, perishable, living, or that are a risk to the property of any person;
(c) must not store items which are irreplaceable, such as currency, jewellery, furs, deeds, paintings, curios, works of art, items of personal sentimental value and/or any items that are worth more than $2000AUD in total unless they are itemised and covered by insurance;
(d) will use the Space solely for the purpose of storage and shall not carry on any business or other activity, including reside, dwell or loiter in the Space;
(e) must not attach nails, screws etc to any part of the Space, must maintain the Space by ensuring it is clean and in a state of good repair, and must not damage or alter the Space without the FO’s consent; in the event of uncleanliness of or damage to the Space or Facility or other Storer’s Goods the FO will be entitled to retain any Deposit, charge a Cleaning Fee, and/or full reimbursement by the Storer to the value of the damage, repairs and/or cleaning;
(f) will be solely responsible for the securing of the Space and shall so secure the Space at all times when the Storer is not in the Space in a manner reasonable acceptable to the FO, and where applicable will secure the external gates and/or doors of the Facility. Where the Storer refuses to secure the Space, the FO may apply a lock and post the keys to the Storer at the Storer’s expense. The Storer is not permitted to apply a padlock to their Space in the FO’s overlocking position, and the Storer may have any such padlock forcefully cut off at the Storer’s expense;
(g) cannot assign this Agreement;
(h) must give Notice to the FO in writing of the change of address, phone numbers or email of the storer or the Alternate Contact Person (“ACP”) within 48 hours of any change;
(i) grants the FO entitlement to discuss any default by and any information it holds regarding the Storer with the ACP registered on the front of this Agreement. Further, where the FO reasonably believes that the Storer is unwilling or unable to remove Goods from the Space upon termination or default of the Agreement, despite reasonable notice under these terms, the FO may allow the ACP to remove the Goods on such terms as agreed between the FO and ACP without the need for further consent from the Storer. Further, where the FO has reasonable proof that the Storer is deceased, the FO is authorised to force access to the Space and release all Goods to the ACP.
(j) is solely responsible for determining whether the Space is appropriate and suitable for storing the Storer’s Goods, having specific consideration for the size, nature and condition of the Space and the Goods;
(k) must ensure their Goods are free of food scraps and are not damp when placed into storage.
11. In addition to clause 6, the FO has the right to refuse access to the Space and/or the Facility by the storer where money is owing by the Storer to the FO and a formal demand for payment of such money has been made.
12. The FO will not be liable for any loss or damaged suffered by the Storer resulting from any inability to access the Facility or the Space.
13. The FO reserves the right to relocate the Storer to another Space under certain circumstances, including but not limited to unforeseen extraordinary events or redevelopment of the Facility.
14. The FO may dispose of the Storer’s Goods in the event that Goods are damaged due to fire, flood or other event that has rendered Goods, in the reasonable opinion of the FO severely damaged, or dangerous to the Facility, any persons, or other Storers and/or their Goods. Where practicable, the FO will provide the Storer with reasonable Notice and an opportunity to review the Goods before the Goods are disposed of.
15. The Storer acknowledges that it has raised with the FO all queries relevant to its decision to enter this Agreement and that the FO has, prior to the Storer entering into this Agreement, answered all such queries to the satisfaction of the Storer. The Storer acknowledges that any matters resulting from such queries have, to the extent required by the Storer and agreed to by the FO, been reduced to writing and incorporated into the terms of this Agreement.
16. The Storer is responsible (and must pay) for loss or damage caused by a third party who enters the Space or the Facility at the request, direction, or as facilitated by the Storer (including provision of gate key code or swipe card).
17. No failure or delay by the FO to exercise its rights under this Agreement will operate to waive those rights.
RISK AND RESPONSIBILITY:
18. The FO’s services come with non-excludable guarantees under consumer protection law, including that they will be provided with due care and skill. Otherwise, to the extent permitted by law, the Goods are stored at the sole risk and responsibility of the Storer who shall be responsible for any and all theft, damage to, and deterioration of the Goods, and shall bear the risk of any and all damage caused by flood or fire or leakage or overflow of water, mildew, mould, heat, spillage of material from any other space, removal or delivery of the Goods, pest or vermin or any other reason whatsoever.
19. Where loss, damage or injury is caused by the Storer, the Storer’s actions or the Storer’s Goods, the Storer agrees to indemnify and keep indemnified the FO from all claims for any loss of or damage to the property of, or personal injury to or death of the Storer, the Facility, the FO or third parties resulting from or incidental to the use of Space by the Storer, including but not limited to the Storage of Goods in the Space, the Goods themselves and/or accessing the Facility.
20. Certain laws may apply to the storage of goods including criminal, bankruptcy, liquidation, privacy and others. The Storer acknowledges and agrees to comply with all relevant laws, including Acts and Ordinances, Regulations, By-laws, and Orders, as are or may be applicable to the use of the Space. This includes laws relating to the material which is stored, the manner in which it is stored, and its disposal upon Default. Such liability and responsibility rests with the Storer and includes any and all costs resulting from such a breach.
21. If the FO reasonably believes that the Storer is not complying with any relevant laws the FO may take any action as it reasonably believes to be necessary, including the action outlined in clauses 22 and 24, contacting, cooperating with and/or submitting Goods to the relevant authorities, and/or immediately disposing of or removing the Goods at the Storer’s expense and liability, including where in the FO’s reasonable opinion the Storer is engaging in illegal activity in relation to the storage of the Goods. No failure or delay by the FO to exercise its rights under this Agreement will operate to waive those rights.
INSPECTION AND ENTRY BY THE FO:
22. The Storer acknowledges that the FO has the right to access the Space and may access the Space for any purpose, including the deposit or retrieval of Goods on the Storer’s specific, general or implied instructions, in the event of emergency, (that is where property, the environment or human life is, in the reasonable opinion of the FO, threatened), to allow inspection or seizure by relevant authorities, for the purpose of general inspection of the Space or the goods, or any other purpose the FO believes necessary for the enforcement of this Agreement or the operation of the Facility.
23. The Storer agrees that in circumstances where the FO reasonably suspects a breach of the law or damage to the Facility, the FO may use a microprobe or other CCTV camera to view the inside of the Space and any footage obtained which evidences a breach of the Agreement or the law may be relied upon by the FO to take any action authorised under this Agreement, including terminating the Agreement and/or cooperating with law enforcement agencies and other authorities.
24. Notice by the FO will usually be given by email or SMS, or otherwise will be left at, or posted to, or faxed to the address of the Storer. In relation to the giving of Notice by the Storer to the FO, Notice must be in writing and actually be received to be valid, and the FO may specify a required method. In the event of not being able to contact the Storer, Notice is deemed to have been given to the Storer by the FO if the FO has sent Notice to the last notified address or has sent Notice via any other contact method, including by SMS or email to the Storer or the ACP without any electronic ‘bounce back’ or similar notification. In the event that there is more than one Storer, notice to or by any single Storer is agreed to be sufficient for the purposes of any Notice requirement under this Agreement. Further, the Storer and the FO agree that the FO may but is not obliged to give notice of any proposed sale in enforcement of a lien arising in relation to this Agreement in a newspaper distributed throughout the state and/or nationally and may include the Storer’s name for this purpose.
25. Once the initial fixed period of storage has ended, either party may terminate this Agreement by giving the other party Notice of the Termination Date in accordance with the period indicated on the front of this Agreement. In the event any activities on the part of the Storer are reasonably considered by the FO to be illegal or environmentally harmful, antisocial, threatening or offensive, the FO may terminate the Agreement without Notice. The FO is entitled to retain or charge apportioned storage fees if less than the requisite Notice is given by the Storer. The Storer must remove all Goods in the Space before the close of business on the Termination Date and leave the Space in a clean condition and in a good state of repair to the satisfaction of the FO. In the event that Goods are left in the Space after the Termination Date, clause 8 will apply. The Storer must pay any outstanding Storage Fees and any expenses on default or any other moneys owed to the FO up to the Termination Date, or clauses 6, 7 or 8 may apply. Any calculation of the outstanding Fees will be by the FO. If the FO enters the Space for any reason and there are no Goods stored therein, the FO may terminate the Agreement without giving prior Notice, but the FO will send Notice to the Storer in writing within 7 days.
26 The Parties’ liability for outstanding moneys, property damage, personal injury, environmental damage and legal responsibility under this Agreement continues to run beyond the termination of this Agreement.
PERSONAL PROPERTY SECURITIES:
27. In this clause “PPSA” means the Personal Property Securities Act 2009 and any Regulations as amended from time to time. For the purposes of this Agreement the terms used in clauses 16, 17, 18, 19 and 20 have the same meaning as contained in the PPSA.
28. The FO’s lien over the Goods constitutes a security interest for the purposes of the PPSA and this Agreement is a Security Agreement. The Storer must, at its costs and immediately upon the FO’s request;
(a) do all things reasonably required (including execution of documents) to ensure the FO has a continuously perfected security interest (as defined in the PPSA) created in the Goods pursuant to this Agreement. This includes, but is not limited to: (i) providing details of any item of collateral sufficient to complete registration of the security interest in accordance with the requirements of the PPSA
(i) enabling the FO to apply for registration of or give any notification in relation to the security interest,
(ii) enabling the FO to exercise rights in relation to the security interest;
(b) procure from any person considered by the FO to be relevant to its security position, such agreements and waivers as the FO may at any time require to ensure the FO attains the highest ranking security possible in respect of the security interest.
(c) Not claim nor exert any right of possession over the Goods in any manner contrary to the FO’s lien or right to possession of the Goods.
29. Where permitted by the PPSA:
(a) The Storer waives any right to receive the notifications, verifications, disclosures or other documentation specified under sections 95, 118, 121(4), 130, 132, 3(d), 132(4), 135 and 157 of the PPSA.
(b) The FO and Storer agree to contract out of and nothing in the provisions of sections 96, 125, 129, 142 and 143 of the PPSA shall apply to this Agreement.
30. To the extent permitted by the PPSA:
(a) The provisions of Chapter 4 of the PPSA which are for the benefit of the Storer or which place obligations on the FO will apply only to the extent that are mandatory or the FO agrees to their application in writing.
(b) where the FO has rights in addition to those in Chapter 4 of the PPSA, those rights will continue to apply.
31. The Storer hereby consents and appoints the FO to be an interested person and the Storer’s authorised representative for the purposes of section 275(9) of the PPSA.
32. The Storer agrees not to register a security interest over the FO.
33. If any clause, term or provision of this Agreement is legally unenforceable or is made inapplicable, or in its application would breach any law, that clause, term or provision shall be severed or read down, but so as to maintain (as far as possible) all other terms of the Agreement
TERMS AND CONDITIONS OF HIRE
“ACL” means the Australian Consumer Law contained in Schedule 2 of the
Competition and Consumer Act 2000 (Cth).
“Amounts Owing” means all amounts owing by the Customer to Trade Space 24 Seven under or in connection with the hire of Equipment.
“Business Day” means a day that is not a Saturday, Sunday or public holiday in the State or Territory in which the Hire Equipment was hired from Trade Space 24 Seven.
“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 Agreement.
“Customer” refers to the person, firm, organisation, partnership, corporation or other entity (including trust) hiring the Equipment from Trade Space 24 Seven as identified in the Credit Application or Hire Agreement.
“Customer’s Premises” means the premises nominated by the Customer as the location for the delivery, use and collection of the Hire Equipment.
“Environmental Laws” means any statute, regulations or law made or issued by a regulatory or government body regulating or relating to the environment including the use or protection of the environment.
“Equipment” means all equipment including tools, buildings, vehicles, accessories and parts hired to the Customer.
“Hire Agreement” means the agreement between Trade Space 24 Seven and Customer for the hire of Equipment which includes:
a) any Commercial Credit Application;
b) these Standard Terms and Conditions of Hire; and
c) any applicable Special Conditions of Hire.
“Hire Charges” means the rates and Charges payable by the Customer for the hire of the Equipment.
“Hire Period” means the period of hire for the Hire Equipment as described in clause 2.
“Insolvency Event” means an event where a petition is presented for the winding up of the Customer, an administrator, receiver or receiver and manager is appointed, the Customer is deregistered or makes or proposes to make an arrangement with its creditors, or execution is levied upon the assets of the Customer and is not satisfied within 7 days or the Customer is unable to pay all its debts, as and when they become due and payable.
“Liability” means any liability (whether actual, contingent or prospective), loss, damage, cost and expense however arising.
“Long Distance Location” means any location in excess of 50klm of the nearest
Trade Space 24 Seven local branch.
“Off-Hire Date” means the date the Customer advises Trade Space 24 Seven the Equipment is no longer required and Trade Space 24 Seven issues the Customer with an Off-Hire Number in accordance with clause 5.5.
“Trade Space 24 Seven” means Trade Space 24 Seven Rental Group Operations Pty Ltd (ABN 74 126 102 485) or any of its Related Bodies Corporate (as defined in the Corporations Act 2001) and is the owner of the Equipment.
“Trade Space 24 Seven’s Premises” means the premises nominated by Trade Space 24 Seven as the location for the collection and return of the Hire Equipment by the Customer.
“Other Charges” means all other charges apart from the Hire Charges as set out in clause 6.
“PPSA” means the Personal Property Securities Act 2009 (Cth) and where applicable includes all regulations made pursuant to it. Definitions contained in the PPSA are the same in these Terms and Conditions.
“Return Date” means the date on which the Hire Equipment is returned to the physical possession of Trade Space 24 Seven.
“Start Date” is the earlier of (a) when the Customer takes possession of the Equipment or (b) when Trade Space 24 Seven delivers the Equipment to the Customer’s Premises.
“Unforeseen Events” means an event beyond the control of Trade Space 24 Seven including but not limited to acts of God, war, terrorism, mobilisation, civil commotion, orders or regulations or governments fires, floods and strikes.
1 HIRE OF EQUIPMENT
1.1 Trade Space 24 Seven agrees to hire the Hire Equipment to the Customer for the Hire Period and the Customer agrees to pay the Hire Charges and Other Charges.
1.2 Trade Space 24 Seven hires Equipment at its absolute discretion and may refuse to hire to the Customer.
2 HIRE PERIOD
2.1 The Hire Period commences on the Start Date and ends on the earlier of: (a) when the Customer obtains an Off Hire number (subject to access being granted to collect the Equipment); or
(b) when back in the possession of Trade Space 24 Seven (irrespective of any
expected Off Hire Date).
2.2 The Hire Period includes weekends and public holidays and is irrespective of the time the Hire Equipment is being used.
2.3 Minimum Hire Periods may apply for some Equipment (such as buildings).
If the Customer seeks to return the Equipment prior to the end of the
Minimum Hire Period, the Customer is still required to pay the Hire
Charges for the Minimum Hire Period.
3 COLLECTION AND DELIVERY OF HIRE EQUIPMENT
3.1 Where Trade Space 24 Seven is delivering Equipment to or collecting Equipment from the Customer’s Premises, access must be granted to enable timely delivery and collection. The Customer will be responsible for any demurrage, delay or futile deliveries or collection costs of Equipment if access is not granted.
3.2 Delivery times and dates are estimates only. Trade Space 24 Seven is not responsible for the failure or delays in delivery or installation due to an Unforeseen Event.
3.3 Trade Space 24 Seven will notify the Customer of any delay in delivering, collecting or installing the Hire Equipment.
4 INSPECTION OF THE HIRE EQUIPMENT
4.1 The Customer must inspect all Hire Equipment upon delivery and/or collection. Upon return of the Equipment to Trade Space 24 Seven’s Premises, Trade Space 24 Seven will notify the Customer of any defect or damage which may incur Other Charges.
5 HIRE CHARGES
5.1 Hire: The Customer must pay Trade Space 24 Seven all charges set out in any quote and/or Hire Agreement. Trade Space 24 Seven reserves the right to amend the Hire Charges in accordance with any change to its standard pricing for the Hire Equipment.
5.2 Additional hire charges may apply if the Hire Equipment is used more than 8 hours a day or more than 48 hours per week.
5.3 Equipment hired for at least 5 days in a seven-day continuous period, will be charged at the ‘weekly rate’.
5.4 Stand downs may apply to Equipment where agreed by Trade Space 24 Seven as follows:
(a) Any stand down request must be made by 9.00am on the day of the
stand down. Stand downs cannot be applied retrospectively;
(b) The customer remains responsible for the security of the Equipment and all loss or damage to equipment while it is stood down;
(c) Stand downs do not apply to fixed plant including (but not limited to) site accommodation, caravans, containers, fencing, barriers, wired power generation, steel plates, shoring, propping and fixed or minimum term rentals;
(d) Christmas and Easter stand down periods are based on the calendar days and a maximum of two weeks for Christmas and one week for Easter applies;
(e) Stand downs of sub-hired equipment are subject to the term of that supplier;
(f) Unless otherwise agreed in writing, stand downs will only apply to: (i) Equipment breakdown up to 100% for duration of breakdown;
(ii) Inclement weather up to 50% of hire charge (high wind/severe wet);
(iii) Gazetted Public Holiday up to 50% of hire charge;
(iv) Christmas/Easter period up to 50% of hire charge; and
(v) Industry Rostered Day Off up to 50% of hire charge;
(g) If the Equipment is used during a stand down (determined for instance by remote monitoring), full hire charges for that period will be applied; and
(h) If a stand down request exceeds two days (except for Christmas and Easter) Trade Space 24 Seven retains the right to have the equipment off-hired and returned to Trade Space 24 Seven at the customer’s expense.
5.5 Off-hire: When they Customer wants to off-hire the Equipment, it must obtain an “Off-Hire number” by 9.00am of the Off-Hire Date and provide access for collection of the Equipment. Hire Charges are payable for the full Hire Period if the customer retains the Equipment past an expected Off Hire Date.
6 OTHER CHARGES
6.1 In addition to the Hire Charges, the Customer agrees to pay:
(a) for any operational guidance, instruction or training or instruction related to the hire of Equipment or other services provided by Trade Space 24 Seven at the rates agreed with the Customer;
(b) for any additional or special conditions to permit and gain access to the Customer’s site including but not limited to site inductions;
(c) for any consumables and trade materials included but not limited to fuel charges;
(d) Tax and Government charges, levies or fines (including any environmental levy) in relation to the hire of the Hire Equipment;
(e) GST subject to a taxable invoice (All amounts payable in the Hire Agreement are exclusive of GST unless otherwise specified). The Customer acknowledges and agrees there is no sale or transfer of title and Trade Space 24 Seven shall be exclusively entitled to claim any fuel tax credits;
(f) charges for payments made by credit card;
(g) charges for delivery (and delay if applicable) and collection and installation (if applicable);
(h) if applicable, the Loss, Theft & Damage Waiver fee;
(i) for cleaning and repair of Hire Equipment if not returned in clean, good working condition;
(j) a charge for pumping out waste tanks or refilling of water tanks;
(k) for any variations that are necessary or requested by the Customer;
(l) the cost passed on by Trade Space 24 Seven arising out of a change in law, code, regulations or Customer policy or guideline.
7.1 All Hire Charges are payable in full monthly in advance of invoice date.
7.2 If payment is not made in full by the due date, Trade Space 24 Seven may charge a late payment fee of 2% (cumulative) per month. In addition, the Customer must pay to Trade Space 24 Seven all expenses in recovering any Amounts Owing (on a full indemnity basis).
7.3 Trade Space 24 Seven may set-off any monies owing by it to the
Customer against any Amounts Owing.
8 CUSTOMER’S HIRE OBLIGATIONS
8.1 Possession and Use by Customer: The Customer must not allow nor authorise any other person or entity to use, re-hire or have possession of the Hire Equipment at any time during the Hire Period without the prior written approval of Trade Space 24 Seven.
8.2 The Customer remains responsible and liable to Trade Space 24 Seven irrespective of any sub-hire agreement or arrangement entered into by the Customer.
8.3 The Customer is liable to Trade Space 24 Seven for the acts and omissions of any Sub- Hirer and the employees, agents, contractors and officers of the Sub-Hirer as if they were acts or omissions of the Customer.
8.4 Suitability: The Customer agrees that before accepting the Hire
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 Trade Space 24 Seven or any person purporting to act on
The Customer acknowledges that, to the extent permitted by law,
Trade Space 24 Seven has not made any representation or warranty (other
than as expressly set out in writing) as to the suitability, condition and fitness
for purpose of the Equipment or any other matter.
8.5 Operation of Hire Equipment: The Customer warrants it will at all times: (a) transport, erect, install and operate Equipment safely, strictly in
accordance with all laws, only for its intended use and in accordance
with the manufacturer’s instructions;
(b) ensure persons transporting, erecting, installing and operating the
Equipment are suitably instructed, trained and qualified
(including holding a current licence to perform and/or operate the
Equipment) in its safe and proper use and comply with all relevant
laws and manufacturer’s recommendations relating to the use of the
(c) display and maintain all safety signs and instructions (as required by law), and ensure that all instructions and signs are observed by operators of the Hire Equipment;
(d) ensure all persons operating the Hire Equipment wear suitable clothing and protective equipment as required or recommended by relevant law, applicable industry standards and the manufacturer;
(e) ensure that no persons operating the Hire Equipment are under
the influence of drugs or alcohol or carry any dangerous, hazardous or
illegal substances in or onto the Equipment;
(f) conduct a job safety analysis prior to using the Hire Equipment at a site;
(g) insure the Equipment during the Hire Period (if not electing to pay the
Loss, Theft & Damage waiver fee); and
(h) comply with all Environmental Laws applying from time to time and immediately rectify any breach of an Environmental Law caused by the use, possession or storage of the Hire Equipment.
8.6 Cleaning and Maintenance: The Customer must:
(a) clean, fuel, lubricate and maintain Hire Equipment in good condition and in accordance with the manufacturer’s and Trade Space 24 Seven’s instructions at the Customer’s cost;
(b) not in any way alter, modify (including removing any identifying mark or plate), tamper with, damage or repair the Equipment without Trade Space 24 Seven’s written consent;
(c) provide access to Trade Space 24 Seven to maintain and service the Equipment and undertake statutory inspections when necessary during normal business hours, failing which additional charges for out of hours service and maintenance may apply;
(d) arrange for the emptying of any waste tanks and water carts; and
(e) return the Equipment to Trade Space 24 Seven in the same good and clean condition it was in when the Customer received it, ordinary fair wear and tear excepted.
8.7 Safekeeping: The Customer must ensure that the Equipment is:
(a) stored safely and securely and is protected from theft, vandalism, seizure and damage or subject to adverse climatic or environmental conditions which may damage the Hire Equipment (ie corrosion, sea- salt and flooding); and
(b) not exposed to any hazardous substance including asbestos without prior written consent.
8.8 Hazardous substances: The Customer must advise Trade Space 24 Seven of
any risks of hazardous substances and/or contamination to the Equipment as
soon it becomes apparent (or should have become apparent). The Customer
(a) provide to Trade Space 24 Seven its Asbestos Register upon request; and
(b) decontaminate the Hire Equipment and provide to Trade Space 24 Seven details of the process applied.
8.9 If the Hire Equipment has not been properly decontaminated (or not capable of being decontaminated) the Customer may be charged for new Hire Equipment.
8.10 Inspections: The Customer consents to Trade Space 24 Seven inspecting and maintaining the Hire Equipment with reasonable notice during the Hire Period. In addition, the Customer may arrange a joint inspection with Trade Space 24 Seven.
8.11 Safe Loading and Transport: The Customer must ensure the safe loading, securing and transporting of all Equipment in accordance with all laws, industry guidelines and manufacturer’s guidelines. The Customer
must, and must ensure that any transporting contractor will, observe any safety directions advised by Trade Space 24 Seven and/or manufacturer of the Equipment for its loading and safe handling.
8.12 Location: The Customer:
(a) must not remove the Hire Equipment from the Australian State or
Territory in which it was hired without Trade Space 24 Seven’s prior written consent.
If consent is provided, the Equipment must be returned to the original site from where the Equipment was delivered by Trade Space 24 Seven;
(b) agrees to pay any costs associated with Trade Space 24 Seven’s attendance for breakdown and maintenance at Long Distance Locations; and
(c) must not use the Hire Equipment off-shore, underground, or in a mine without consent of Trade Space 24 Seven.
8.13 Electrical and Fire Suppression Equipment re-testing and re-tagging:
All Equipment supplied by Trade Space 24 Seven is tagged and tested prior to hire. During the Hire Period, the Customer is responsible for arranging at its cost the re-testing and re-tagging of electrical equipment in accordance with the manufacturer’s instructions, relevant law, applicable Australian Standards and regulatory authority requirements. Any damage caused to the Hire Equipment resulting from incorrect testing will be at the Customer’s cost.
8.14 Fuel: The Customer is responsible for ensuring any Equipment is returned to Trade Space 24 Seven with a full tank of fuel or agrees to pay the fuel charges to refuel.
8.15 Wear and Tear: The Customer is responsible for:
(a) the cost of repairing or replacing flat or damaged tyres and for all wear and tear and damage to tyres and tracks caused by conditions which are adverse or abnormal. Ordinary wear and tear is considered to be 4,000 service meter units. At all times the Customer must adhere to the manufacturer’s recommended tyre pressure and track tension;
(b) the cost of all bucket and blade wear or damage caused by conditions which Trade Space 24 Seven considers are abnormal or adverse use; and
(c) all wear and tear to cutting edges, bucket teeth, hardware, ripper teeth and all other ground engaging tools hired. All ground engaging tools hired by the Customer are to be returned to Trade Space 24 Seven at the end of the Hire Period in the same condition in which they were supplied. Usage of ground engaging tools will be measured by comparing the percentage of use at the commencement of the Hire Period with the percentage of use at the end of the Hire Period.
9 TITLE TO HIRE EQUIPMENT
9.1 The Customer acknowledges that Trade Space 24 Seven retains title to the Hire Equipment at all times (even if the Customer goes into liquidation, external administration of any kind or becomes bankrupt during the Hire Period) and in no circumstance will the Hire Equipment be deemed to be a fixture. The Customer has no interest in the Hire Equipment of any kind other than as a bailee.
9.2 Trade Space 24 Seven may hire or lease Equipment from third parties to supply to the Customer and if this occurs title in the Equipment remains with that sub-hirer.
9.3 Except with the prior written consent of Trade Space 24 Seven, the Customer will not be entitled to offer, transfer, sell, assign, sub-let, encumber, charge, mortgage, pledge or otherwise deal with the Hire Equipment in any way whatsoever.
9.4 PPSA: Trade Space 24 Seven may register its security interest that arises under this Hire Agreement and in the Equipment and the proceeds from any dealing in the Equipment. The Customer:
(a) must do all things necessary to enable Trade Space 24 Seven to register and perfect its security interest in the Equipment under the PPSA including enabling it to register a financing statement;
(b) must take all steps to ensure any security interest arising under or in respect of sub-hire is enforceable, perfected and otherwise effective under PPSA;
(c) must not register a financing change statement in respect of a security interest arising out of this Hire Agreement without Trade Space 24 Seven’s consent;
(d) must not create a security interest in the Equipment in the Equipment, register or permit to be registered a financing statement in relation to the Equipment;
(e) must notify Trade Space 24 Seven of any change in writing of the Customer’s details set out in the Credit Application;
(f) waives all rights under s157 of the PPSA to receive a copy of the verification statement relating to security interest created under this Hire Agreement;
(g) agrees to the extent permitted by the PPSA, the following provisions
of the PPSA will not apply and are contracted out of: s95 (to the extent
that it requires the secured party to give notices to the grantor); s96;
s118 (to the extent that it allows a secured party to give notices to the
grantor); s121(4), s125; s130; s132(3)(d); s132(4); s135; s142 an s143;
(h) agrees that the following provisions of the PPSA will not apply and the Customer will have no rights under them; s127; s192(2) and (3); s130(1); s132; s134(2); s135; s136(3), (4) and (5) and s137.
9.5 Unless otherwise agreed, Trade Space 24 Seven and the Customer will not disclose information referenced in s275(1) of the PPSA to an interested person, or any other person requested by an interested person. The Customer waives any right it may have had under s275(7)(c) of the PPSA to authorise disclosure of that information.
9.6 For the purposes of s20(2) of the PPSA, the collateral is the Equipment set out in any quote and/or Hire Agreement. The Quote and/or Hire Agreement is the security agreement for the purposes of the PPSA.
10 RESPONSIBILITY FOR THE HIRE EQUIPMENT
10.1 The Customer is responsible for any loss, theft or damage to the Equipment (from any cause whatsoever) during the Hire Period except where caused by Trade Space 24 Seven.
11 EQUIPMENT BREAKDOWN
11.1 Obligations of Customer: If the Equipment breaks down or becomes unsafe to use during the Hire Period the Customer must:
(a) immediately stop using the Equipment and notify Trade Space 24 Seven;
(b) take all steps necessary to prevent injury occurring to persons or property as a result of the condition of the Equipment;
(c) take all steps necessary to prevent any further damage to the
(d) not repair or attempt to repair the Equipment without Trade Space 24 Seven’s prior written consent.
11.2 Obligations of Trade Space 24 Seven: if the Equipment breaks down or becomes unsafe to use (through no act or omission of the Customer including misuse, recklessness and negligence), Trade Space 24 Seven will:
(a) repair the Hire Equipment or provide suitable substitute Hire Equipment when reasonably possible after being notified by the Customer; and
(b) not impose Hire Charges for that portion of the Hire Period the Equipment could not be used, nor any costs associated with any repair or replacement of the Equipment; and
11.3 If the Equipment is broken down or becomes unsafe to use due to any act or omission of the Customer, the Customer will be liable for all costs for the repair or replacement and continuing Hire Charges while the Equipment is being repaired and/or replaced.
11.4 Trade Space 24 Seven will not be liable for any expenditure, damages,
losses, costs or inconvenience incurred by the Customer arising from a
breakdown of the Equipment.
12 LOST, STOLEN OR DAMAGED HIRE EQUIPMENT
12.1 If the Equipment is lost, stolen or damaged the Customer is responsible for:
(a) the cost of the repairs; or
(b) replacement (if it cannot be repaired) at Trade Space 24 Seven’s reasonable discretion; and
(c) continuing Hire Charges until the repair or replacement of the
(d) other reasonable costs and expenses associated with the repair and/
or replacement of the Equipment.
12.2 If, the Customer has paid the Loss, Theft & Damage Waiver, the Customer’s liability is limited subject to clause 13 below.
13 LOSS, THEFT AND DAMAGE WAIVER
13.1 The Customer may seek to limit its liability arising out of loss, theft and damage to the Equipment by paying a fee of 12.5% which is automatically added to the customer’s monthly invoice (“LTD Waiver Fee”). The LTD Waiver Fee is not insurance. In the event of a claim for damage, the customer must:
(a) if requested by Trade Space 24 Seven provide a written Police report of the loss or damage to the Equipment within 5 Business Days; and
(b) any other written or photographic evidence requested by Trade Space 24 Seven (which may include sworn statements and statutory declarations); and
(c) pay to Trade Space 24 Seven the Damage Waiver excess which is the greater of:
(i) $500 per item of Equipment (if the repair or replacement cost is less than $500); or
(ii) the amount equal to 15% of the cost of repair (or if beyond repair)
15% of the replacement cost.
13.2 Even if the Customer pays the LTD Fee, the Customer is still liable for all loss and damage to the Equipment if:
(a) the LTD Fee was not paid prior to any loss or damage;
(b) Trade Space 24 Seven reasonably believes the Customer failed to take reasonable precautions to protect and secure the Equipment;
(c) the Equipment is, or is ordinarily used off-shore, over water or in underground mines or is located, used, loaded, unloaded, transported on or over water, wharves, bridges or vessels
of any kind;
(d) the loss or damage is:
(i) to tyres and tubes, including punctures, blowouts, bursts, bruises or cuts;
(ii) glass, including breakage;
(iii) caused by vandalism, including graffiti on the Hire Equipment; (iv) to paintwork;
(v) due to wrongful conversion or any components;
(e) the loss or damage was caused, or contributed to, by: (i) a breach of this Hire Agreement;
(ii) an act or omission of the Customer;
(iii) the use of the Hire Equipment was in contravention of any
laws, codes, regulations or contrary to Trade Space 24 Seven’s or the manufacturer’s
(iv) a lack of, or faulty lubrication or general servicing of the
(v) the misuse, abuse, overloading or incorrect loading of the
Equipment or any of its components;
(vi) the overloading or artificial electrical current to motors or other electrical appliances or devices, including use of under-rated or excessive length of extension leads on electrically powered tools and machines;
(vii) an exposure to any corrosive, caustic or toxic substance, including cyanide, asbestos, saltwater, acid or harsh environmental conditions etc; or
(viii) the transport of the Hire Equipment, except where transported by Trade Space 24 Seven
13.3 The Customer does not need to pay the LTD Waiver fee if it produces a certificate of currency evidencing that it holds a policy of insurance in accordance with clause 14 below.
14.1 If the Customer elects not to pay the LTD Damage Waiver fee, it must take out and maintain a policy of insurance that covers loss or damage to the Hire Equipment during the Hire Period for not less than the full new replacement cost of the Equipment (“Hire Equipment Insurance”).
14.2 The Customer must provide a certificate of currency of the Hire Equipment Insurance upon request. The Customer will be responsible for the excess and any shortfall in repair or replacement costs from any insurance payout.
14.3 Over-Water, off-shore and underground mines: If required by Trade Space 24 Seven, the Customer must also take out and maintain for the Hire Period, insurance for the Equipment which will be used off-shore, over water or in underground mines.
15 INDEMNITIES AND EXCLUSION OF LIABILITIES
15.1 To the extent permitted by law (unless otherwise expressly set out in this Agreement), all terms, conditions, warranties, undertakings, inducements or representations whether express or implied, statutory or otherwise, relating to Trade Space 24 Seven’s obligations under the Hire Agreement are excluded.
15.2 Nothing in this Hire Agreement limits any condition, guarantee or warranty imposed by legislation, including any Consumer Guarantees that may apply. Where Trade Space 24 Seven cannot exclude a condition, guarantee or warranty, it can limit its liability (at Trade Space 24 Seven’s election to):
(a) In the case of goods, the repair or replacement of the Equipment (or the cost of repair or replacement);
(b) In the case of services, supplying the services again.
15.3 Subject to clause 15.2 and any legislation governing Trade Space 24 Seven’s obligations and liabilities, Trade Space 24 Seven’s liability (in tort, statute, contract, under an indemnity or however arising) is limited to the Hire Charges paid under this Hire Agreement.
15.4 Subject to clause 15.2, Trade Space 24 Seven 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.
15.5 The Customer is liable for and indemnifies Trade Space 24 Seven against all Claims arising out of or in connection with Customer’s hire and use of the Equipment or breach of this Hire Agreement, including personal injury, damage to property and claims by third parties.
15.6 Each indemnity is a continuing obligation and survives termination or expiration of this Hire Agreement. It is not necessary for Trade Space 24 Seven
to incur an expense or make any payment before enforcing a right of indemnity under this Hire Agreement. The Customer must pay on demand under this Hire Agreement.
16.1 Either party may terminate the Hire Agreement with 7 days’ notice by serving a written notice on the other party if:
(a) the other party breaches the Hire Agreement and fails to remedy within 7 days of notification; or
(b) the other party becomes insolvent or bankrupt, or executes a personal insolvency agreement, enters into liquidation, administration or receivership or ceases to carry on business.
16.2 Trade Space 24 Seven may also terminate the Hire Agreement at any time for convenience by giving the Customer at least 24 hours’ notice.
16.3 The right of termination is in addition to any other rights under the Hire
17 RECOVERY OF HIRE EQUIPMENT
17.1 If Trade Space 24 Seven has terminated the Hire Agreement with the Customer pursuant to clause 16, Trade Space 24 Seven may take all steps necessary (including legal action) to recover the Equipment, including entering any site occupied by the Customer. The Customer expressly provides Trade Space 24 Seven consent to enter any site or premises upon of the Customer to recover Equipment.
18.1 Severability: If any part of this Hire Agreement becomes void or unenforceable for any reason then that part will be severed in respect only with the intent that all remaining parts will continue to be in full force and effect and be unaffected by the severance of any other parts.
18.2 Governing Law and Jurisdiction: The Hire Agreement is governed by
the laws of New South Wales and each party submits to the non-exclusive jurisdiction of that jurisdiction.
18.3 Disputes: In the event there is a dispute between the parties to this Hire Agreement or the Customer wishes to make a Claim, the Customer must notify Trade Space 24 Seven in writing (to the Branch from which the Equipment was hired) of the reasons for the dispute or details of the Claim (including reference to any invoice) within 7 Business Days from the date the Claim or dispute arose (or date of invoice).
18.4 The Customer acknowledges and agrees that failure to comply with the time frame for notification of any Claim or dispute will mean the Customer is barred from raising any Claims or dispute with Trade Space 24 Seven after that time period has passed.
18.5 Within 14 Business Days of notification of any dispute or Claim, representatives of both parties shall meet to endeavour to resolve the Claim or dispute.
18.6 If the Claim or dispute cannot be resolved, the chief executive officers of each party shall confer within 14 days of any meeting to endeavour to resolve the Claim or dispute.
18.7 If the parties fail to resolve the Claim or dispute pursuant to this clause, and prior to commencing proceedings, the Claim or dispute must first be referred to arbitration to be conducted subject to the Resolution Institute’s Arbitration Rules. This clause does not apply to proceedings for injunctive or urgent declaratory relief.
18.8 Security of Obligations: As security for the obligations and liabilities of the Customer under the Hire Agreement, the Customer (and any guarantors) charge for its performance of its obligations and liabilities,
all of its legal and equitable interest (both present and future) of whatever nature held in any and all real property and any other assets.
18.9 The Customer (any its guarantors) agree, on request by Trade Space 24 Seven, to execute any documents and do all things required by Trade Space 24 Seven to register a mortgage security or other security interest over any real property or other asset.
The Customer (and its guarantors) must indemnify Trade Space 24 Seven against all costs and expenses incurred by Trade Space 24 Seven in connection with the preparation and registration of any such mortgage or security documents. The Customer (and its guarantors) also consents unconditionally to Trade Space 24 Seven lodging a caveat or caveats noting its interest in any caveatable property.
18.10 Entire Agreement: The Hire Agreement comprises the entire agreement between the parties. No additional terms and conditions proposed by the Customer (including in the Purchase Order) apply to the hire of the Hire Equipment unless agreed in writing by Trade Space 24 Seven.
18.11 No Reliance: The Customer acknowledges that Trade Space 24 Seven or any person on Trade Space 24 Seven’s behalf has not made any representation or inducement to the Customer to enter into the Hire Agreement and the Customer has not relied on any representations or inducements except for those representations or inducements contained in this Hire Agreement.
18.12 Variation: Trade Space 24 Seven may at any time vary these Terms and Conditions of Hire which will come into effect 14 days after notice is given to the Customer where possible by email or otherwise by notice through Trade Space 24 Seven’s website. Any other variation of the Hire Agreement must be agreed in writing by Trade Space 24 Seven and the Customer.
18.13 Privacy: Trade Space 24 Seven may collect personal information about a Customer and Trade Space 24 Seven will treat this information in accordance with Australian Privacy Principles.
18.14 The information may be used and disclosed to third parties to provide services to the Customer, to fulfil administrative functions associated with these services (for example assessment of credit worthiness), to enter into contracts with the Customer or third parties and for marketing and client relationship purposes. If the Customer does not provide all personal information required by Trade Space 24 Seven, Trade Space 24 Seven may not be able to hire the Equipment or provide the associated services to the Customer. Trade Space 24 Seven may disclose the Customer’s information to Trade Space 24 Seven’s service providers and contractors from time to time to help provide and market Trade Space 24 Seven’s services to the Customer.
18.15 The Customer consents to and authorises Trade Space 24 Seven to use and disclose the Customer’s personal information to third parties including any credit provider or credit reporting agency and to Trade Space 24 Seven’s service providers, contractors and affiliated companies from time to time, for the purposes outlined above.
18.16 Notice to Customer: Any document or notice under this Hire Agreement may be given by:
(a) In the case of a Notice to Trade Space 24 Seven – by posting it to Trade Space 24 Seven’s registered office and branch address;
(b) In the case of a Notice to the Customer – by posting to the Customer’s address (as stated in the Credit Application or last notified by the Customer in writing to Trade Space 24 Seven) or by email to the Customer’s address.
18.17 Any Notice given by post will be deemed to have been delivered on the third Business Day after posing and if by email on the day of transmission if before 4.00pm or the following business day if sent after 4.00pm.
18.18 No Waiver: No delay or omission to exercise any right, power or remedy accruing to Trade Space 24 Seven upon any continuing breach or default under the Hire Agreement will impair any such right, power or remedy, nor will it be construed to be a waiver of any right of Trade Space 24 Seven to take action or make a claim in respect of a continuing breach or default or to be acquiescence to it.
18.19 Withdrawal of Credit Accommodation: Any credit accommodation granted by Trade Space 24 Seven to the Customer may be reviewed at any time without notice and credit withdrawn. The Hire Agreement may be terminated, and the Customer will owe to Trade Space 24 Seven any outstanding amounts until the Hire Equipment is back in the possession of Trade Space 24 Seven.
18.20 Authority of Customer: The Customer warrants and agrees that the person signing the Hire Agreement for and on behalf of the Customer has the authority of the Customer to enter into and bind the Customer to the Hire Agreement. The Customer indemnifies Trade Space 24 Seven against all Claims arising out of a breach of the warranty contained in this clause.
18.21 Previous Editions: This edition of the Standard Terms and Conditions of Hire replaces and supersedes all previously issued Trade Space 24 Seven Terms and Conditions of Hire.
18.22 Time of the Essence: Time is to be of the essence of all obligations of the
Customer in the Hire Agreement.
18.23 Survival: Any provision of the Hire Agreement which is capable of having effect after the expiry or termination of the Hire Agreement (or any
part thereof) survives and remains in full force and effect after the expiry or termination of the Hire Agreement.
18.24 Special Conditions: Special Conditions apply where the Customer
is hiring Motor Vehicles, Portable Buildings, Power Generators, Pumps
and dewatering Equipment and Earthmoving and Compaction
Equipment and form part of this Agreement.