NOTE TO CUSTOMER: You must carefully read these Terms and Conditions of Hire (Terms), which govern your hire of Equipment from Food Equipment Hire.
DEFINITIONS FOOD EQUIPMENT HIRE – Means Commercial Rentals Australia Pty Ltd (ACN 063 613 016) t/as Food Equipment Hire. FOOD EQUIPMENT HIRE BRANCH – Means the premises from which the Equipment is hired, as specified in the Tax Invoice. BUSINESS DAY – Means a day other than a Saturday, Sunday or public holiday in Melbourne, Australia. COMMENCEMENT – Means the date when the Customer takes possession of the Equipment. For the avoidance of doubt, the Customer will be deemed to have taken possession of the Equipment if it is in the possession of any of its employees, sub-contractors, agents or other representatives. CUSTOMER or YOU – Means the person or entity hiring the Equipment from Food Equipment Hire, as identified in the Tax Invoice. DAMAGE WAIVER – Means an amount equal to 10% of the sum of the Hire Charges and any delivery and collection fees set out in the Tax Invoice. EQUIPMENT – Means any kind of equipment including but not limited to the following kinds of goods or goods suitable for the following kinds of uses: cooling and/or heating including cooking; refrigerated storage; warming; refrigerated display; ware washing and parts and accessories for any of the foregoing. GST – Means the Goods and Services tax as defined in A New Tax System (Goods and Services Tax) Act 1999 (Cth). HIRE CHARGE – The amounts payable by the Customer to hire the Equipment, as set out in the Tax Invoice. HIRE PERIOD – Means the period commencing at Commencement and continuing until the end of the period shown on the Tax Invoice, unless the parties agree to extend the period in writing. TAX INVOICE – Means 1 or more tax invoices issued by Food Equipment Hire in respect of the hire of the Equipment.
STRUCTURE OF AGREEMENT
2.1These Terms apply to the exclusion of any other conditions proposed by the Customer, unless otherwise agreed by the parties in writing.
2.2Each instance Food Equipment Hire agrees to hire Equipment to the Customer will be governed by these Terms, together with the Tax Invoice and any credit application, guarantee and indemnity, which, together, form an agreement between the Customer and Food Equipment Hire (Hire Agreement).
GENERAL
3.1The Customer agrees to receive all notices, consents, communications, approvals and associated documentation by electronic means (including email), or by hand delivery or mail where electronic means are not available.
3.2These Terms may be changed by Food Equipment Hire from time to time, by giving notice of the amendment to the Customer. Notice is deemed given on the earlier of Food Equipment Hire doing any of the following:
(a)sending notice of the amendment to the Customer at any address (including an email address) supplied by the Customer;
(b)publishing the amended terms on its website; or
(c)displaying the amended terms at premises from which Food Equipment Hire conducts hire operations.
3.3Changes to these Terms will only apply to any hire entered into after the change has been notified to the Customer by one of the methods mentioned above.
3.4The Customer cannot assign, novate or otherwise transfer its rights or obligations without the prior written consent of Food Equipment Hire.
3.5A failure by Food Equipment Hire to enforce any power or right must not be construed as a waiver of that power or right.
3.6If a clause is unenforceable it must be read down to be enforceable or, if it cannot be read down, the term must be severed from these Terms, without affecting the enforceability of the remaining terms.
3.7Nothing contained or implied in the Hire Agreement creates any partnership, employment or agency relationship between the parties. Neither party has the authority to bind the other party in any way.
ORDER PROCESS
4.1Following submission of a request to hire Equipment by the Customer, Food Equipment Hire will issue a quote to the Customer.
4.2The Customer must check the details set out in the quote and notify Food Equipment Hire within 14 days if it agrees with the quote or if it would like to request any amendments to the quote.
4.3Once the parties are satisfied with the quote, Food Equipment Hire will issue the Tax Invoice and Hire Agreement to the Customer.
4.4The Customer will be deemed to have agreed to the Tax Invoice and Hire Agreement on the earlier of it indicating its acceptance to Food Equipment Hire or paying any amounts under the Tax Invoice.
4.5Food Equipment Hire is under no obligation to hold Equipment for the Customer and may decline to hire the Equipment to the Customer if it has reasonable grounds for doing so.
CANCELLATION AND CHANGES
5.1If the Customer cancels an order for Equipment on or after the date that is 2 Business Days before the date of delivery or collection (as applicable) or at any time after the Equipment has been dispatched for delivery, it must pay Food Equipment Hire or, if it has already made payment, Food Equipment Hire is entitled to deduct from the amount refunded to the Customer, an amount equal to:
(a)20% of the Hire Charge or $65 (plus GST), whichever is greater; and
(b)the delivery and collection charges.
5.2The Customer acknowledges that the amount charged under clause 5.1 is fair and reasonable because the Equipment was reserved for the Customer and represents a genuine pre-estimate of Food Equipment Hire’s loss in the event of cancellation.
5.3Clause 5.1 does not apply in circumstances where the Customer cancels an order because the Equipment was damaged or defective upon delivery (and can provide reasonable evidence to substantiate this).
5.4The Customer may request changes to the order for Equipment up to 24 hours prior to delivery or collection (as applicable), subject to the following:
(a)Food Equipment Hire is under no obligation to accept any such changes;
(b)no changes will be effective unless approved in writing by Food Equipment Hire; and
(c)changes may affect the Hire Charge and any other relevant changes, such as delivery and collection fees.
COLLECTION AND RETURN OF THE EQUIPMENT
6.1Unless otherwise agreed and set out in the Tax Invoice, the Customer must, during Food Equipment Hire's ordinary trading hours on a Business Day (at its cost):
(a)collect, or arrange for the collection of, the Equipment from the collection address on the collection date set out in the Tax Invoice; and
(b)return, or arrange for the return of, the Equipment to the delivery address on the return date set out in the Tax invoice.
6.2If the Customer fails to comply with clause:
(a)6.1(a), the Customer must collect the Equipment during Food Equipment Hire’s ordinary trading hours on the next Business Day; and
(b) 6.1(b), Food Equipment Hire may charge, and the Customer must pay the Hire Charge on a pro rata basis for each day (or part-day) of delay until the date the Customer returns the Equipment.
6.3In the event Food Equipment Hire agrees to:
(a)deliver the Equipment to the Customer, and the Customer fails to accept delivery of the Equipment at the delivery address within 1 hour of the delivery time set out on the Tax Invoice or otherwise agreed by the parties; or
(b)collect the Equipment from Customer, and the Customer fails to make the Equipment available for collection at the collection address within 1 hour of the collection time set out in the Tax Invoice or otherwise agreed by the parties,
Food Equipment Hire may charge, and the Customer must pay, a fee equal to Food Equipment Hire’s freight charge for the collection or delivery (as applicable), unless otherwise agreed by the parties. This Customer acknowledges that the fee payable under this clause is a genuine pre-estimate of Food Equipment Hire’s loss arising from your delay.
RISK AND TITLE
7.1Risk in the Equipment (which, for the avoidance of doubt, includes responsibility for any damage to or loss of the Equipment):
(a)passes to the Customer when Food Equipment Hire makes the Equipment available for collection at address specified for collection in the Tax Invoice, unless Food Equipment Hire has agreed to deliver the Equipment, in which case risk will pass when Food Equipment Hire makes the Equipment available for unloading at the delivery address specified in the Tax Invoice; and
(a)remains with the customer until Food Equipment Hire accepts delivery of the Equipment at the return address specified in the Tax Invoice, unless Food Equipment Hire has agreed to collect the Equipment, in which case risk will remain with the Customer until the Equipment has been loaded onto Food Equipment Hire’s collection vehicle.
7.2Except as otherwise set out in this Hire Agreement, nothing has the effect of transferring any title, right or other interest in the Equipment to the Customer.
FOOD EQUIPMENT HIRE OBLIGATIONS
Food Equipment Hire will:
8.1allow the Customer to take and use the Equipment for the Hire Period in accordance with these Terms;
8.2provide the Equipment to the Customer clean and in good working order; and
8.3collect the Equipment within two Business Days of being requested to do so by the Customer (at the Customer’s cost).
OBLIGATIONS OF THE CUSTOMER
The Customer must, and must ensure that its representatives:
9.1assume responsibility (at its cost) for daily maintenance and care of the Equipment and return the Equipment to Food Equipment Hire clean and in good repair;
9.2satisfy itself that the Equipment is suitable for its purposes;
9.3operate the Equipment safely, with an adequate power source, strictly in accordance with the law, only for its intended use, and in accordance with any Food Equipment Hire or manufacturer’s instructions, whether supplied by Food Equipment Hire or posted on the Equipment;
9.4advise Food Equipment Hire if you require any instruction on the operation and safe use of the Equipment;
9.5have adequate insurance to cover all liabilities incurred as a result of the use of the Equipment;
9.6ensure that any person collecting or taking delivery of Equipment on behalf of the Customer is authorised by the Customer to do so and the Customer will not allege that any such person is not so authorised;
9.7ensure that all persons operating or erecting the Equipment are suitably instructed in its safe and proper use and where necessary hold all applicable current certificates and/or licences to operate or erect the Equipment;
9.8conduct a thorough hazard and risk assessment before using the Equipment and comply with all occupational health and safety laws relating to the Equipment and its operation;
9.9safely secure the Equipment and any items loaded in or on the Equipment or in or on the Customer’s vehicle;
9.10report and provide full details to Food Equipment Hire of any accident or damage to the Equipment within two Business Days of the accident or damage occurring, cease use of the damaged Equipment, take all reasonable steps to prevent further damage to the Equipment and not repair or attempt to repair the Equipment;
9.11not tamper with, damage, lose or part with possession of the Equipment;
9.12not exceed the recommended or legal load and capacity limits of the Equipment; and
9.13not use or carry any illegal, prohibited or dangerous substance in or on the Equipment.
PAYMENTS
10.1Unless otherwise agreed by Food Equipment Hire in writing, the Customer must pay the amounts set out in the Tax Invoice (including the Hire Charge, any delivery and collection fees and any Damage Waiver) in full by the due date set out on the Tax Invoice.
10.2Food Equipment Hire may withhold the Equipment until the Customer has complied with clause 10.1 and the amounts have been cleared into Food Equipment Hire’s bank account.
10.3Immediately on request by Food Equipment Hire, the Customer must pay all costs of repairing or replacing tyres, including road service.
10.4Food Equipment Hire may charge (and the Customer agrees to pay) interest for any overdue amounts owed by the Customer under this Hire Agreement, at the prevailing rate pursuant to the Penalty Interest Rates Act 1983 (VIC) for the period from the due date until the date of payment in full.
10.5The Customer agrees and acknowledges that:
(a)payment of the Damage Waiver does not affect or limit any other obligations it has under this Hire Agreement, including to maintain appropriate insurance policies in accordance with clause 9.5 and to indemnify Food Equipment Hire under clause 13; and
(b)the Damage Waiver is reasonable and necessary to cover Food Equipment Hire’s costs associated with wear and tear to, and any cleaning required for, the Equipment.
10.6Without limiting the ability of Food Equipment Hire to recover all amounts owing to it, the Customer authorises Food Equipment Hire to charge any amounts owing by the Customer to any credit card or account details of which are provided to Food Equipment Hire.
10.7Food Equipment Hire may tokenise the Customers Credit Card or Account details to facilitate credit card or online payments.
10.8All amounts or other consideration payable in respect of taxable supplies made under this Hire Agreement are exclusive of GST, unless specified otherwise.
10.9Any GST payable must be paid at the same time, and in addition to, the consideration payable for the taxable supply.
PPS LAW
11.1This clause applies to the extent that this Hire Agreement provides for a ‘security interest’ for the purposes of the Personal Property Securities Act 2009 (Cth) (PPS Law). References to PPS Law in this Hire Agreement include references to any amended, replacement and successor provisions or legislation.
11.2The Customer must do anything (such as obtaining consents and signing documents) which Food Equipment Hire requires for the purposes of:
(a)ensuring that Food Equipment Hire’s security interest is enforceable, perfected and otherwise effective under the PPS Law;
(b)enabling Food Equipment Hire to gain first priority (or any other priority agreed to by Food Equipment Hire in writing) for its security interest; and
(c)enabling Food Equipment Hire to exercise rights in connection with the security interest.
11.3The rights of Food Equipment Hire under this Hire Agreement are in addition to and not in substitution for Food Equipment Hire's rights under other law (including the PPS Law) and Food Equipment Hire may choose whether to exercise rights under this Hire Agreement, and/or under such other law, as it sees fit. For the avoidance of doubt, Food Equipment Hire’s security interest will attach to proceeds.
11.4To the extent that Chapter 4 of the PPS Law applies to any security interest under this Hire Agreement, the following provisions of the PPS Law do not apply and, for the purposes of section 115 of the PPS Law are “contracted out” of this Hire Agreement in respect of all goods to which that section can be applied: (a) section 95; (b) section 96; (c) section121(4); (d) section 125; (e) section 130; (e) sections 129(2) and 129(3); (f) section 132(3)(d); (g) section 132(4); (h) section 135; (i) section 142; and (j) section 143.
11.5The Customer agrees that, in addition to its rights under PPS Law, Food Equipment Hire will, if there is default by the Customer, have the right to seize, purchase, take possession or apparent possession, retain, deal with or dispose of any goods, not only under those sections but also, as additional and independent rights, under this document and the Customer agrees that Food Equipment Hire may do so in any manner it sees fit including (in respect of dealing and disposal) by private or public sale, lease or licence.
11.6The Customer waives its rights to receive a verification statement in relation to registration events in respect of commercial property under section 157 of the PPS Law.
11.7Food Equipment Hire and the Customer agree not to disclose information of the kind that can be requested under section 275(1) of the PPS Law. The Customer must do everything necessary on its part to ensure that section 275(6)(a) of the PPS Law continues to apply. The agreement in this sub-clause is made solely for the purpose of allowing to Food Equipment Hire the benefit of section 275 (6)(a) and Food Equipment Hire shall not be liable to pay damages or any other compensation or be subject to injunction in respect of any actual or threatened breach of this sub-clause.
11.8The Customer must not:
(a)dispose or purport to dispose of, or create or purport to create or permit to be created any ‘security interest’ (as defined in PPS Law) in the Equipment; and
(b)not lease, hire, bail or give possession of the Equipment to any third party.
EXCLUSION OF WARRANTIES AND LIABILITIES
12.1Where the Australian Consumer Law applies, the Customer has the benefit of guarantees in relation to the hire of the Equipment, which cannot be excluded.
12.2Where the Australian Consumer Law applies and the goods are not of a kind ordinarily acquired for personal domestic or household use or consumption, Food Equipment Hire liability in respect of any guarantee is limited to the replacement or repair of the goods, or the cost of having the goods repaired or replaced.
12.3To the extent that the Australian Consumer Law (or any other law which cannot be excluded) does not apply. Food Equipment Hire makes no representations and gives no warranties other than those set out in these Hire Contract Conditions, and will not be liable to the Customer for any damages, costs or other liabilities whatsoever (including for consequential loss) in relation to the hiring of the Equipment by the Customer.
INDEMNITY
13.1The Customer indemnifies Food Equipment Hire against all liability, claims, damage, loss, costs and expenses (including legal costs) (Loss) arising out of, or in connection with the hire or use of the Equipment or a breach of the Hire Agreement by the Customer, including any Loss arising out of:
(a)personal injury;
(b)damage to, theft or loss of property, including any part of the Equipment; or
(c)a claim by a third party.
13.2The Customer’s liability under clause 13.1 is reduced to the extent that the Loss is caused by Food Equipment Hire’s breach of the Hire Agreement or negligence.
SERVICE OR REPAIR DURING HIRE PERIOD
To the extent Food Equipment Hire agrees to service or repair the Equipment during the Hire Period, it has absolute discretion to undertake the service or repair itself or appoint a third party service provider it selects to do so on its behalf.
BREACH OF HIRE AGREEMENT BY CUSTOMER
If the Customer breaches any provision of this Hire Agreement and does not remedy the breach within 10 Business Days of a notice from Food Equipment Hire, or becomes bankrupt, insolvent or ceases business, Food Equipment Hire may:
15.1terminate this Hire Agreement; and/or
15.2repossess the Equipment (and is authorised to enter any premises where the Equipment is located to do so).
DISPUTES
16.1The Customer must immediately check all Hire Charges, and any disputes in relation to those Hire Charges must be communicated to Food Equipment Hire in writing within 30 days of the Hire Contract date. In the event that no communication is received from the Customer within that 30 day period, the Hire Charges are deemed to be accepted by the Customer.
16.2If a dispute arises relating to this Hire Agreement, the hiring or the use of the Equipment (except in regard to payments due to Food Equipment Hire), the parties agree to negotiate to settle the dispute before litigation.
EQUIPMENT DATA
17.1Food Equipment Hire’s Equipment may contain on-board devices (each a GPS Device), which enable the Equipment to be connected to the internet and to send commands to and receive certain information from the Equipment, including geolocation data from a global positioning system and other data including but not limited to speed, battery voltage and ignition status of such Equipment.
17.2By hiring any Equipment from Food Equipment Hire, the Customer expressly consents to Food Equipment Hire’s use of the GPS Device on such Equipment during the Hire Period and to Food Equipment Hire collecting, using and retaining information from the GPS Device, and that Food Equipment Hire is the owner of that data.
FORCE MAJEURE
Food Equipment Hire is not liable to the extent that it is prevented from complying with its obligations under this Hire Agreement by events beyond its reasonable control including, without limitation, industrial disputes, strikes, lockouts, accident, breakdown, import or export restrictions, pandemic, acts of god, acts or threats of terrorism, war or government restrictions. If an event of force majeure occurs, Food Equipment Hire may suspend or terminate the hire of Equipment by written notice to the Customer.
CONFIDENTIALITY
The Customer must at all times, and ensure its employees, sub-contractors, agents and representatives at all times, keep confidential and secure, and not use, any information made available by Food Equipment Hire, which is commercially sensitive or confidential, including any information disclosed to the Customer by Food Equipment Hire pursuant to or in connection with this Hire Agreement (including the Hire Charge), whether orally or in writing and whether or not it is expressly stated to be commercially sensitive or confidential, except to the extent that the information is already in the public domain other than as a result of a breach by the Customer.
PRIVACY
Food Equipment Hire will respects your privacy and will only use your personal information as required for the purpose of this Hire Agreement and its reasonable business purposes.
GOVERNING LAW
This Hire Contract shall be governed and construed in accordance with the laws of Victoria, Australia and the parties submit to the exclusive jurisdiction of the courts and tribunals exercising jurisdiction in Victoria, Australia.