Conditions of Short Term Hire
Conditions of Short Term Hire
- “Agreement” means the document entitled “Hire Agreement” annexed hereto, and any other agreements or arrangements between the Owner and the Hirer.
- “Artwork” means any art, artwork, mirrors or similar items or any items that may need to be hung on a wall within the Premises.
- “Goods” means anything provided by the Owner to the Hirer pursuant to this Agreement, including the goods referred to on page 1 of this Agreement, and includes all furniture, Artwork, accessories, soft furnishings, and related items.
- “Guarantor” means anyone specified on page 1 of this Agreement as guarantor, and any person who executes an Agreement with the Owner on behalf of the Hirer.
- “Hirer” means the Hirer specified on page 1 of this Agreement.
- “Hirer Goods” means any chattels, fixtures or fittings within the Premises that are owned or supplied by the Hirer, or by anyone other than the Owner.
- “Initial Term” means the initial term specified on page 1 of the Agreement or otherwise agreed in writing between the Parties.
- “Initial Term Hire Fee” means the sum specified as the “Hire Fee for the Initial Term” on page 1 of this agreement, or such other sum as is agreed in writing to be payable for the Initial Term.
- “Ongoing Hire Fee” means the “Ongoing Weekly Hire Fee” specified on page 1 of this agreement or otherwise agreed in writing between the Parties.
- “Owner” means Furnish and Finish Pty Ltd ABN 11 097 740 997
- “Parties” means the Owner and the Hirer.
- “Perfected” has the same meaning as it does in the PPSA.
- “Period of Hire” means the Initial Term, any extension of the Initial Term and any other period during which the Goods are at the Premises or have otherwise not been returned from the Premises to the Owner.
- “PPSA” means the Personal Property Securities Act 2009 (Cth).
- “Premises” means such location as was agreed in writing by the Owner as the location at which the Goods were to be installed.
- “Property” includes any property in which the Owner believes the Goods are located.
- “Relevant Event” means each of the two circumstances specified in clause 12(a).
- “Security Interest” has the same meaning as it does in the PPSA.
- “Styling Proposal” means an agreement between the Owner and the Hirer entitled “Styling & Purchase Agreement”.
- “Styling Services” means any styling or design services undertaken by the Owner pursuant to a Styling Proposal.
- Hire Period and Payment:
- The Hirer agrees to hire the Goods for the Initial Term and make same available to the Owner at the expiration of the Initial Term, unless the Parties agree that the Period of Hire is to exceed the Initial Term, in which case the Ongoing Hire Fee shall apply.
- The Hirer shall pay the Initial term Hire Fee to the Owner at least four business days prior to the date scheduled for delivery and installation of the Goods.
- The Ongoing Hire Fee in respect of each week of the Period of Hire other than the Initial Term must be paid by the Hirer to the Owner before the commencement
of such week, with the first day of the first week being the first day after the expiration of the Initial Term.
- The Hirer must give the Owner four (4) business days written notice, prior to the end of any Period of Hire, of termination of the Agreement and access arrangements for the Owner to collect the Goods, failing which (unless a new hire agreement has been entered into) this Agreement automatically extends for an additional week and the Ongoing Weekly Hire Fee is payable by the Hirer in advance until the Goods have been returned or collected by the Owner after receiving 4 business days’ notice to do so.
- Where the Hirer enters into an unconditional contract for the sale of the Premises (or a conditional contract that becomes unconditional), the Hirer shall immediately notify the Owner of that fact and the Owner is authorised by the Hirer to immediately collect the Goods even if the Initial Term has not finished.
- The Parties acknowledge that no part of the Initial Term Hire Fee shall be refundable to the Hirer as a result of such early collection.
- Notwithstanding any other provision herein, the Ongoing Weekly Hire Fee shall be payable by the Hirer to the Owner in respect of the entire Period of Hire.
- If the Ongoing Hire Fee is not paid strictly in accordance with clause 2(c) of this Agreement, the Hirer hereby authorises the Owner to debit such sums from any credit card, the details of which the Hirer has supplied to the Owner.
- Delivery & Collection of Goods:
- The Hirer is responsible for arranging access to the Premises during normal business hours Monday to Friday (excluding public holidays) for the delivery and/ or collection of the Goods. If the Owner is unable to gain access, the Hirer will indemnify the Owner in respect of any additional costs that arise as a result of such inaccessibility or hindrance.
- The Owner is unable to accept responsibility for damages to the Premises or Hirer Goods if there is no representative on behalf of the Hirer on-site at the Premises when the Owner delivers and/or collects the Goods.
- The Owner reserves the right to nominate the time and day for the delivery and/ or collection of the Goods.
- The Owner does not allow delivery and/or collection of the Goods other than by its own qualified staff and/or contractors.
- Photographs organised by The Hirer are to be scheduled for the day after installation by the Owner.
- If the Owner indicates to the Hirer that certain Hirer Goods should be removed or relocated from or within the Premises, then the Owner shall not be required to deliver or install the Goods until such Hirer Goods have been removed or relocated to the Owner’s satisfaction. If such Hirer Goods have not been removed or relocated to the Owner’s satisfaction prior to the commencement of the Initial Term, then the Hirer shall pay to the Owner $200.00 for every hour or part thereof from the commencement of the Initial Term until the time such Hirer Goods have been removed or relocated. The Hirer and the Owner agree that the payments referred to in this clause represent a genuine pre-estimate of the cost incurred by the Owner in respect of such delay.
- The Hirer acknowledges that the Owner shall not be required to remove or relocate any of the Hirer Goods. Should any such items be required by the relevant real estate agent or the Owner to be moved, the Hirer agrees that they shall be responsible in all respects for doing so, and all costs that arise or relate directly or indirectly thereto.
- Should the Goods include the hanging of Artwork, the Hirer acknowledges that the Owner may use the processes of drilling or employ the use of nails or such other method as the Owner deems fit in respect of hanging such Artwork. It is the responsibility of the Hirer to advise in writing at the time of entering into this Agreement if hooks, nails, screws or imaging fixtures are not to be used.
- Access to Premises:
- Prior to the delivery and installation of the Goods, the Hirer shall ensure that all tradesman and painters have completed all works to be completed by them. The Hirer shall be responsible for ensuring that the Premises is in all respects safe for the purpose of access by the Owner and for the purpose of the delivery and installation of the Goods by the Owner.
- The Hirer will immediately inform the Owner about any access difficulties or delays. Failure to notify Owner of works being carried out at the time of delivery and collection will incur a charge of an additional 20% of the Initial Term Hire Fee for time lost and for futile delivery or collection. The Hirer and the Owner agree that the charge referred to in this clause constitutes a genuine pre-estimate of the loss or damage to which such charge relates.
- Change of Address:
The Hirer shall not relocate the Goods from the Premises without the written permission of the Owner. If the Goods are removed without permission such removal will be unlawful conversion and/or illegal misappropriation of the Goods and if the Owner cannot locate the Goods, then the Goods will be deemed lost, stolen or destroyed and the Hirer will pay the Owner on demand the cost for replacing the Goods.
- Usage of Goods:
- The Hirer understands that goods are being provided for the purpose of display only and not for domestic or commercial use.
- The Hirer shall at all times ensure that the Goods are used in a safe and in all respects appropriate manner and the Hirer warrants that it has inspected the Goods and ensured that they are in good and substantial repair and condition and entirely appropriate for the Hirer’s intended purpose.
- Before putting the Goods to any use, the Hirer shall examine the Goods and satisfy itself in all regards as to the quality and fitness for purpose of the Goods.
If in any way the Hirer can establish that the Goods are defective or unsuitable;
i. They should be returned immediately to the Owner with written notice of the defect or unsuitability.
ii. The Hirer acknowledges that it is not relying upon any representations made by or on behalf of the Owner in respect of the Goods, or its performance, fitness or any purpose or quality.
- During the Period of Hire, the Hirer shall be responsible for any loss or damage to the Goods whether such loss is caused by the negligence of the Hirer or any other person under his control or for any other reason whatsoever except that caused by reasonable wear and tear or any deliberate act of the Owner.
- Where the Goods are not returned or made available by the Hirer to the Owner strictly in accordance with the terms of this Agreement, the Owner shall be at liberty to immediately notify the Police of the circumstances, and at the cost and expense of the Hirer, recover possession of the Goods and take any civil or criminal action as it deems necessary for the recovery of the Goods. The Owner shall not be responsible to the Hirer for any loss or damage, injury, fines or costs incurred or sustained by the Hirer in respect of such actions.
- The Hirer indemnifies the Owner in respect of all actions, claims, suits, demands or expenses arising out of or in connection with the use of the Goods by the Hirer or any person under his control during the Period of Hire or following termination of this Agreement.
- In the event of a breakdown, failure, defect or other issue with the Goods becoming apparent during the Period of Hire, the Hirer shall immediately notify the Owner, and the Hirer shall not repair or attempt to repair or cause any repair to be made to the Goods without the prior consent of the Owner.
- In no event shall the Owner be responsible for any expenditure, damage, delay, inconvenience or loss incurred by the Hirer (and including liability for any indirect or consequential losses) arising out of any breakdown, failure, defect or other issue with the Goods whether caused by fair wear and tear, lack of repair, negligence or any other reason whatsoever.
- The liability of the Owner for a breach of a condition or warranty implied in this Agreement by the Competition and Consumer Act 2010 shall be limited to the replacement of the Goods or the supply of equivalent Goods by the Owner.
- The Hirer shall be responsible in all respects for ensuring that the Goods are appropriate for the Premises, and the specific part of the Premises at which the Goods will be located, whether indoor, outdoor or otherwise. The Hirer shall be responsible for and indemnify the Owner in respect of any damage to the Premises or any injury or death to any person or any property or Hirer Goods, the Owner or any third party. This indemnity includes, but is not limited to, any damage or loss suffered as a result of or in relation to wind, rain or any other elements, the use of the Goods outside or on a balcony or in any other respect.
- Cleaning of Goods:
The Hirer will be charged a minimum of $50.00 for cleaning each and any item that, in the opinion of the Owner acting reasonably, requires cleaning upon the return of the Goods to the Owner, including all furnishing, rugs, linens, towels and any other items.
- Damage to Goods or Premises:
- The Hirer agrees to maintain the Goods in good order and condition and is responsible for any damage to the Goods howsoever caused. The Hirer shall on demand pay the Owner a sum equal to the cost of repairing or replacing damaged or lost Goods.
- If the Goods includes any Artwork, the Hirer acknowledges that such holes, nails or any other fixtures implemented by the Owner to hang the Artwork will remain following collection and shall not be required to be rectified by the owner.
- The Owner shall not be liable in any respect to the Hirer in respect any damage caused as a result of hanging the Artwork.
- Subject to clause 12 and fair wear and tear, the Hirer shall indemnify the Owner in respect of any damage to or soiling of the Goods.
- If the Hirer requires or it is otherwise necessary for the Owner to move the Hirer’s Goods for the purposes of styling the Premises, the Owner shall not be responsible for any damage that arises in respect thereof howsoever caused.
- Styling Service:
- When Goods are provided by Owner to the Hirer in accordance with a Styling Proposal, all Goods including accessories are provided at the Owner’s discretion and no changes or substitutes to the Goods selected will be made except with the consent of the Owner.
- Changes to the styling can be accommodated but will incur additional charges for selection, delivery and installation.
- Photographs taken by the Owner and/or its agents of the Styling Services at the Premises can be used by the Owner at its discretion. Additionally the Hirer permits the Owner to take their own photography and/or videography of the Styling Services at the Premises.
- No responsibility will be taken for Hirer Goods brought to the Premises by the Hirer after the Goods have been installed by the Owner. It is the Hirer’s responsibility to be onsite at the time of collection to make sure any Hirer Goods do not get collected with the Goods.
- Ownership of Goods:
- The Hirer and the Owner agree that the Goods shall remain the sole and absolute property of the Owner.
- The Hirer and the Owner agree that, notwithstanding the degree of annexation of the Goods, to any other property, the Goods shall remain the property of the Owner, in all respects, and shall not be deemed to form part of the property to which it is annexed. If, notwithstanding the foregoing, the Goods are deemed to form part of any other property to which it is affixed or annexed, the Hirer shall not have any ownership or similar rights in relation to the Goods, and shall permit the Owner, at the expense of the Hirer, to remove the Goods from such property to which it is annexed or affixed.
- Notwithstanding the foregoing, the Hirer warrants that the Hirer shall not permit the Goods to be affixed or annexed to any other property.
- If the Owner determines that this Agreement or any aspect thereof is or contains a Security Interest, then the Hirer shall comply with the reasonable requirements of the Owner in order to ensure that the Security Interest is enforceable, perfected and otherwise effective.
- The Hirer acknowledges that if the Owner’s interest under this Agreement or any other agreement between the parties is a Security Interest for the purposes of the PPSA:
i. That Security Interest relates to the Goods and all proceeds of any kind; and
ii. Each agreement between the parties constitutes a security agreement for the purposes of the PPSA.
- If requested by the Owner, the Hirer must provide to the Owner all details in respect of the location of the Goods and the identity of any sub-lessee or third party that has been given possession of the Goods.
- For the purposes of section 20(2) of the PPSA, the Goods constitute collateral. This Agreement is a security agreement for the purposes of the PPSA.
- Right of Owner to terminate agreement and retake possession:
- If any payment under this Agreement is due and unpaid for more than 5 business days or if there exists any other breach whatsoever of the terms of this Agreement, the Owner may terminate this Agreement and retake possession of the Goods.
- The Hirer consents to the Owner or to its agents entering the Premises, or entering any other Property in which it believes the Goods are located, and in either case, using such reasonable force as is necessary and whether the Hirer is present or not, in order to collect the Goods. The Hirer shall make no claim whatsoever against the Owner for damage arising out of or connected with the retaking of possession of the Goods in these circumstances.
- The Hirer hereby indemnifies the Owner against all claims, actions, demands or suits directly arising out of or connected with the collection or retaking of possession of the Goods. The Hirer hereby agrees to pay the Owner all costs and charges incurred by the Owner or incidental to the collection or retaking of possession of the Goods.
- Notwithstanding the specified Period of Hire or any wavier of some previous default
by the Hirer, the Owner may terminate this Agreement and collect the Goods:
i. If the Hirer fails to pay any hiring charges as and when they fall due; or
ii. If the Hirer does or permits any act or thing to be done to the Goods by way of which the Owner’s right in the Goods may be prejudice or the Goods may be compromised or damaged;
iii. If the Hirer should become or is made insolvent or bankrupt or an administrator is appointed in relation to the Hirer or any arrangement or composition is made with a Creditor or should any order by made or resolution be passed for the Hirer’s winding up; or
iv. If the Hirer commits any breach of this Agreement.
- Risk Protection:
- This clause 12 shall only apply if:
i. The Hirer notifies the nearest Police Station within 48 hours of any of the Goods being stolen or vandalised as a result of a forced entry to the Premises.
ii. Any of the Goods are damaged by fire, if the Hirer notified the nearest Police Station of the fire and the corresponding damage to the Goods at the Premises within 48 hours of such fire.
- Notwithstanding any other provision of this Agreement, this clause 12 does not apply to any Relevant Event if such Relevant Event was caused or contributed to directly or indirectly by the negligence or wilful or intentional acts of the Hirer or their agents or invitees.
- The Hirer shall within 3 business days of the occurrence of a Relevant Event notify the Owner in writing of such Relevant Event together with the relevant Police report or statement or other applicable Police documentation.
- The Hirer shall not be liable to the Owner in respect of any Relevant Event, if the Hirer has complied with all of the provisions of this clause 12, and the Owner shall not make any claim or institute any legal action or otherwise seek to recover from the Hirer any loss or damage suffered as a result of a Relevant Event in those circumstances.
- This clause 12 shall only apply if:
- Overdue Charge:
The Hirer agrees to pay the Owner any fees or charges relating to the collection of overdue funds, including but not limited to, interest, dishonour fees, collection fees and all legal expenses on an indemnity basis. Any free hire weeks provided for in the Initial Term will be revoked if legal action is commenced or payments are not made when due.
The Hirer agrees to pay all taxes, duties or charges payable under any law of the Commonwealth of Australia or of any State or Territory in respect of this agreement, whether existing at the time the contract was entered into, or introduced after the execution of the contract. This includes, but is not limited to GST and Stamp Duty.
- Cancellation of Hire:
In the event that the Hirer, notifies the Owner in writing, that it wishes to cancel the Agreement, prior to the delivery of the goods in the premises; and provided payment of the Initial Term Hire fee has been paid; the Owner agrees to partially refund the Initial Term Hire fee as follows –
- 25% of the Initial term Hire fee to be refunded, if the notification to the Owner is received within 24 hours of the business day before the date scheduled for the delivery of the goods; or
- 50% of the Initial term Hire fee to be refunded, if the notification to the Owner is received within 2 business days of the date scheduled for the delivery of the goods; or
- 75% of the Initial term Hire fee to be refunded, if the notification to the Owner is received between 2 and 4 business days before the date scheduled for the delivery of the goods; or
- 90% of the Initial term Hire fee to be refunded, if the notification to the Owner is received greater than 4 business days before the date scheduled for the delivery of the goods.
The Owner will not agree to any discount or refund, once the Goods have been delivered (or attempted to be delivered) to the Premises.
- The Guarantor hereby agrees to guarantee to the Owner the performance and observance by the Hirer of all of the Hirer’s obligations pursuant to this Agreement.
- This is a continuing guarantee and binds the Guarantor notwithstanding:-
i. The subsequent death, bankruptcy or liquidation of any one or more of the Parties.
ii. Any indulgence, waiver or extension of time by the Owner to the Hirer or to the Guarantor.
- In the event of any breach by the Hirer or the Guarantor covered by this guarantee, including in the payment of any money, the Owner may proceed to recover the amount claimed as a debt or as damages from the Guarantor without having instituted legal proceedings against the Hirer and without first exhausting the Owner’s rights against the Hirer.
The Hirer shall not sell, transfer, assign, part with possession, mortgage, charge, encumber or deal in any other way with the Goods or any right under this Agreement without the prior written consent of the Owner.
The Hirer shall not at any time make any disclosure or public statement in respect of the subject matter of this Agreement or in respect of the Owner, the Conduct of the Owner or the Goods. Without limiting the foregoing, if the Hirer does not immediately return the Goods in accordance with clause 6(c)(i), then they warrant that they will not make any disclosure, comment or statement that is disparaging or in any respect negative in respect of the Goods.