NOTE TO CUSTOMER
You should read these Hire Contract terms very carefully. They contain terms and conditions which may impact on you, including that;
(a) the liability of The Crystal Garden Australia to its Customers is excluded in some circumstances; and
(b) Customers may be liable for damage to goods that are hired by them; and
(c) The Crystal Garden Australia’ Privacy Policy permits The Crystal Garden Australia in some circumstances and subject to compliance with the Australian Privacy Principles to provide data about a Customer,
or data provided by a Customer, to a third party in a form that may enable the third party to identify the Customer.
These Hire Contract Conditions apply to the exclusion of any other conditions proposed by the Customer, unless otherwise agreed by The Crystal Garden Australia and the Customer in writing. The Crystal Garden Australia agrees to hire Equipment to the Customer on terms set out in this document. If the Customer wishes to hire Equipment, The Crystal Garden Australia will issue to the Customer a Hire Schedule, setting out the terms of the hire of that Equipment. Each Hire Schedule is not a separate contract but forms a part of this hire agreement between The Crystal Garden Australia and the Customer, together with any credit application, guarantee and indemnity or other contractual documents. The Customer agrees to receive hire schedules and all associated documentation by electronic means, or by printed or other form where electronic means are not available. The Customer must check the Hire Schedule on receipt and unless the Customer notifies The Crystal Garden Australia before collection of the Equipment that it disagrees with anything in the Hire Schedule, the terms of the Hire Schedule are accepted by the Customer. The Crystal Garden Australia may in its absolute discretion decline to hire Equipment to the Customer at any time if it has reasonable cause to do so. Amendment: These Hire Contract Conditions may be changed by Crystal Garden from time to time by The Crystal Garden Australia giving notice of the amendment to the Customer. Notice is deemed given when The Crystal Garden Australia does any of the following:
(a) sends notice of the amendment to the Customer at any address (including an email address) supplied by the Customer;
(b) publishes the amended terms on its website or
(c) displays the amended terms at premises from which The Crystal Garden Australia conducts hire operations.
Changes to these Hire Contract Conditions will only apply to Hire Schedules entered into after the change has been notified to the Customer by one of the methods mentioned above.
1. INTERPRETATION OF WORDS IN THIS CONTRACT;
COMMENCEMENT – The date when the Customer takes possession of the Equipment.
EQUIPMENT – Means any kind of equipment, Healing equipment including but not limited to the following kinds of goods or goods suitable for the following kinds of uses: crystal healing therapy, colour healing therapy and includes tools and parts and accessories for any of the foregoing.
CUSTOMER – refers to the person, firm, organisation, partnership, corporation or other entity (including trust) hiring the Equipment from The Crystal Garden Australia Hire as identified in the Credit Application or Hire Schedule.
HIRE CHARGE – The amounts shown on the Hire Schedule payable by the Customer to hire the Equipment.
HIRE PERIOD – Means from Commencement until the end of the period shown on the Hire Schedule. The Hire Period may only be extended for one or more definite periods and in each case this can only be done if the Customer requests it and if The Crystal Garden Australia agrees. The Crystal Garden Australia may issue an amended Hire Schedule for any extension of the Hire Period.
HIRE SCHEDULE – Means a document in such form as The Crystal Garden Australia shall require, setting out the terms of the hire of Equipment, including the particulars of the Equipment and the Hire Period and such other information as The Crystal Garden Australia may decide to include.
The Crystal Garden Australia – The company or companies listed on the Hire Schedule.
REMOTE AREA – Any location which is more the 50 kilometres from the The Crystal Garden Australia establishment from where the Equipment is hired.
2. The Crystal Garden Australia OBLIGATIONS
The Crystal Garden Australia will:
2.1 Allow the Customer to take and use the Equipment for the Hire Period;
2.2 Provide the Equipment to the Customer clean and in good working order;
2.3 Collect the Equipment within five days of being requested to do so by the Customer and issuing to the Customer a Customer Pick Up Number.
NOTE TO CUSTOMER: You must return the Equipment at your expense when due back unless you obtain a Customer Pick Up Number from The Crystal Garden Australia.
3. OBLIGATIONS OF THE CUSTOMER
The Customer must:
3.1 Deliver the Equipment to The Crystal Garden Australia when it is due back;
3.2 Return the Equipment to The Crystal Garden Australia clean and in good repair;
3.3 Satisfy itself at Commencement that the Equipment is suitable for its purposes;
3.4 Operate the Equipment safely, strictly in accordance with the law, only for its intended use, and in accordance with any manufacturer’s instructions whether supplied by The Crystal Garden Australia or posted on the Equipment;
NOTE TO CUSTOMER: You MUST advise The Crystal Garden Australia if you require any further instruction on the operation and safe use of the Equipment.
3.5 Indemnify The Crystal Garden Australia for all injury and/or damage to the extent caused or contributed to by the Customer to persons and property in relation to the Equipment and its operation and have adequate insurance to cover all liabilities incurred as a result of the use of the Equipment;
3.6 Ensure 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;
3.7 Ensure that all persons operating or erecting the Equipment are suitably instructed in its safe and proper use;
3.8 Conduct a thorough hazard and risk assessment before using the Equipment;
3.9 Safely secure all items loaded in or on the Equipment or in or on the Customer’s vehicle, and indemnify The Crystal Garden Australia in respect of any injury and/or damage caused by items falling from the Equipment or from any vehicle or trailer operated by or on behalf of the Customer;
3.10 Operate the Equipment with an adequate power source;
3.11 Report and provide full details to The Crystal Garden Australia of any accident or damage to the Equipment within two business days of the accident or damage occurring;
3.12 Sign any documentation requested by The Crystal Garden Australia at such intervals as reasonably stipulated by The Crystal Garden Australia, to confirm the Customer’s acceptance of these Hire Contract Conditions.
The Customer must NOT;
3.13 Tamper with, damage or repair the Equipment;
3.14 Lose or part with possession of the Equipment;
3.15 Rely upon any representation relating to the Equipment or its operation other than those contained in this Contract;
3.16 Use or carry any illegal, prohibited or dangerous substance in or on the Equipment;
4 PAYMENTS BY THE CUSTOMER TO THE CRYSTAL GARDEN AUSTRALIA
4.1 On or before Commencement (or as otherwise specifically agreed with The Crystal Garden Australia), the Customer will pay the Hire Charge.
4.2 Immediately on request by The Crystal Garden Australia, the Customer will pay: (a) the new list price of any Equipment which is for whatever reason not returned to The Crystal Garden Australia.
NOTE TO CUSTOMER: Subject only to any express provision of this Contract to the contrary, the Customer is responsible for loss or theft of the Equipment.
(b) all costs incurred in cleaning the Equipment;
(c) the full cost of repairing any damage to the Equipment caused or contributed to by the Customer, unless expressly agreed otherwise in this Contract;
(d) all costs incurred by The Crystal Garden Australia in delivering and recovering possession of the Equipment;
(e) Interest for late payment of amounts owing by the customer, at the pre-judgement interest rate set by the Local Court of WA from time to time;
(f) any reasonable expenses and legal costs (including commission payable to a commercial agent) incurred by The Crystal Garden Australia in enforcing this Contract due to the Customers default;
(g) if any damage and/or theft waiver applies, the amount for which the Customer is liable as set out in this Contract; and
4.3 Without limiting the ability of Crystal Garden to recover all amounts owing to it, the
Customer authorises The Crystal Garden Australia to charge any amounts owing by the Customer to any credit card or account details of which are provided to Crystal Garden.
4.4 The Crystal Garden Australia may tokenise the Customers Credit Card or Account details to facilitate credit card or online payments.
5 PPS LAW
5.1 This clause applies to the extent that this Contract provides for a ‘security interest’ for the purposes of the Personal Property Securities Act 2009 (Cth) (“PPS Law”). References to PPS Law in this agreement include references to amended, replacement and successor provisions or legislation.
5.2 Crystal Garden may register its security interest. The Customer must do anything (such as obtaining consents and signing documents) which Crystal Garden requires for the
purposes of
(a) ensuring that The Crystal Garden Australia’ security interest is enforceable, perfected and otherwise effective under the PPS Law;
(b) enabling The Crystal Garden Australia to gain first priority (or any other priority agreed to by The Crystal Garden Australia in writing) for its security interest; and
(c) enabling The Crystal Garden Australia to exercise rights in connection with the security interest.
5.3 The rights of The Crystal Garden Australia under this document are in addition to and not in substitution for The Crystal Garden Australia’ rights under other law (including the PPS Law) and The Crystal Garden Australia may choose whether to exercise rights under this document, and/or under such other law, as it sees fit. To avoid any doubt about it The Crystal Garden Australia security interest will attach to proceeds.
5.4 To the extent that Chapter 4 of PPSA applies to any security interest under this 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 agreement in respect of all goods to which that section can be applied: section 95 (notice of removal of accession to the extent it requires The Crystal Garden Australia to give a notice to the Customer); section 96 (retention of accession); section121(4) (notice to grantor); section125 (obligations to dispose of or retain collateral); section 130 (notice of disposal to the extent it requires The Crystal Garden Australia to give a notice to the Customer); section 129(2) and 129(3); section 132(3)(d) (contents of statement of account after disposal); section 132(4) (statement of account if no disposal); section 135 (notice of retention); section 142 (redemption of collateral); and section 143 (re-instatement of security agreement).
5.5 The following provisions of the PPS Law: section 123 (seizing collateral); section 126 (apparent possession); section 128 (secured party may dispose of collateral); section 129 (disposal by purchase); and section 134(1) (retention of collateral) confer rights on The Crystal Garden Australia. Customer agrees that in addition to those rights, The Crystal Garden Australia shall, if there is default by 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 The Crystal Garden Australia may do so in any manner it sees fit including (in respect of dealing and disposal) by private or public sale, lease or licence.
5.6 The 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.
5.7 The Crystal Garden Australia 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 The Crystal Garden Australia the benefit of section 275 (6)(a) and The Crystal Garden Australia 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.
5.8 Customer must not 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 other than with the express written consent of The Crystal Garden Australia.
5.9 Customer must not lease, hire, bail or give possession (‘sub-hire’) of the Equipment to anyone else unless The Crystal Garden Australia (in its absolute discretion) first consents in writing. Any such sub-hire must be in writing in a form acceptable to The Crystal Garden Australia and must be expressed to be subject to the rights of The Crystal Garden Australia under this agreement. Customer may not vary a sub-hire without the prior written consent of The Crystal Garden Australia (which may be withheld in its absolute discretion).
5.10 Customer must ensure that The Crystal Garden Australia is provided at all times with up-to-date information about the sub-hire including the identity of the sub-hirer, the terms of and state of accounts and payment under the sub-hire and the location and condition of the Equipment.
5.11 Customer must take all steps including registration under PPS Law as may be required to:
(a) ensure that any security interest arising under or in respect of the sub-hire is enforceable, perfected and otherwise effective under the PPS Law;
(b) enabling the Customer to gain (subject always to the rights of The Crystal Garden Australia) first priority (or any other priority agreed to by The Crystal Garden Australia in writing) for the security interest; and
(c) enabling Crystal Garden and the Customer to exercise their respective rights in connection with the security interest.
6 DAMAGE WAIVER
6.1 Damage Waiver is not insurance, but is an agreement by The Crystal Garden Australia that the Customer’s liability for damage to the Equipment can be limited in some circumstances only, to an amount called the Damage Waiver Excess.
6.2 Damage Waiver applies to all hires, subject to the conditions below, for no additional fee. The Damage Waiver Excess is the actual recovery and repair cost of the Equipment, or 20% of the current replacement cost of the Equipment as
reasonably determined by The Crystal Garden Australia using suppliers list prices, whichever is the lesser amount.
DAMAGE WAIVER DOES NOT APPLY AND WILL NOT LIMIT THE CUSTOMER’S LIABILITY IN THE FOLLOWING CIRCUMSTANCES;
(a) where the Equipment is lost or stolen;
(b) where the operator or installer is not suitably qualified and/or responsible;
(c) where the operator or installer is affected by drugs and/or alcohol;
(d) where the equipment has been willfully damaged at any time during the Hire Period;
(e) where the damage is caused by a collision with a door frame opening or any overhead structure or object whatsoever due to insufficient clearance;
(f) where the damage is caused while the Equipment is being transported or towed on
any road that is unsealed or is not a public road;
(g) where the damage is caused in any way by overloading; or
THEFT WAIVER DOES NOT APPLY AND WILL NOT LIMIT THE CUSTOMER’S
LIABILITY FOR THEFT in the following circumstances;
(a) where the Customer has failed to keep the Equipment in a securely locked enclosed area; or
(b) where the Customer has failed to submit to The Crystal Garden Australia a Police Report on the theft within seven days of the theft allegedly occurring. In the event of Theft Waiver applying, hire fees will be charged to the Customer until the Police Report is provided to The Crystal Garden Australia.
6.6 Damage Waiver or Theft Waiver will NOT apply where The Crystal Garden Australia determines that any of the applicable circumstances in clauses 6.2 respectively have occurred, unless the Customer is able to establish otherwise to the reasonable satisfaction of Crystal Garden.
7 EXCLUSION OF WARRANTIES AND LIABILITIES.
7.1 Where the Australian Consumer Law applies, the Customer has the benefit of guarantees in relation to the hire of the Equipment which cannot be excluded.
7.2 Where the Australian Consumer Law applies and the goods are not of a kind ordinarily acquired for personal domestic or household use or consumption, The Crystal Garden Australia 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.
7.3 To the extent that the Australian Consumer Law (or any other law which cannot be excluded) does not apply. Crystal Garden 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.
8 REMOTE HIRE
Where the Equipment is at any time hired by the Customer to be located in the Remote Area, the following clauses will also apply, in addition to the obligation of the Customer under Clause 3 and elsewhere in these Hire Contract Conditions;
(a) The Customer will pay an additional charge for any delivery, servicing and repair of the Equipment, and for any other attendance at the Remote Area by The Crystal Garden Australia (‘Remote Area Charges’). The Remote Area Charges will be calculated on a per kilometer rate traveled by The Crystal Garden Australia staff to and from the Remote Area, plus labour costs per staff member per hour (including
travelling times) at scheduled rates, plus direct travelling cost including all airfares and accommodation charges incurred by The Crystal Garden Australia and its staff in connection with travel to and from the Remote Area;
(b) Multiple items of Equipment hire by a Customer on the one site will only be charged for one call out fee;
(c) The Customer is responsible at its cost for daily maintenance and care of all Multiple items of Equipment hire by a Customer on the one site will only be fittings and lubrication of all grease points.
9 BREACH OF HIRE CONTRACT BY CUSTOMER
If the Customer breaches any significant provision of this Contract and does not remedy the breach within a reasonable period of time (having regard to the breach), or becomes bankrupt, insolvent or ceases business then:
9.1 The Crystal Garden Australia shall be entitled to:
(a) terminate this Contract; and/or
(b) sue for recovery of all monies owing by the Customer; and/or
(c) repossess the Equipment (and is authorised to enter any premises where the Equipment is located to do so), and any Damage and/or Theft Waiver referred to in clause 6 is immediately invalidated.
9.2 The Customer indemnifies The Crystal Garden Australia in respect of any damages, costs or loss, to the extent caused or contributed to by the customer resulting from a breach by the Customer of any provision of this Contract.
10 DISPUTES
10.1 The Customer must immediately check all Hire Charges, and any disputes in relation to those Hire Charges must be communicated to The Crystal Garden Australia 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.
10.2 If a dispute arises relating to this Contract, the hiring or the use of the Equipment (except in regard to payments due to The Crystal Garden Australia), the parties agree to negotiate to settle the dispute with the assistance of the Hire and Rental Association of Australia before litigation.
11 EQUIPMENT DATA
v’ 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.
By hiring any Equipment from The Crystal Garden Australia, the Customer expressly consents to The Crystal Garden Australia’ use of the GPS Device on such Equipment during the Hire Period and to The Crystal Garden Australia collecting, using and retaining information from the GPS Device in accordance with our Privacy Policy, and that The Crystal Garden Australia is the owner of that data subject to your rights as set out in our Privacy Policy.
12 PRIVACY
Crystal Garden will comply with the Australian Privacy Principles in all dealings with Customers. A copy of the The Crystal Garden Australia Privacy Statement is available upon request or by visiting www.kennards.com.au/privacy-policy
13 CONTACTLESS COLLECTION AND RETURN
13.1 The Crystal Garden Australia may in its discretion, and subject to satisfactory identification of the Customer and its authorised representatives, issue a Personal Identification Number (“PIN”) to an individual authorised representative of the Customer to allow self-collection and self-return of the Equipment by the Customer from and to a The Crystal Garden Australia office (“the Office”). The PIN may be withdrawn by The Crystal Garden Australia in its discretion at any time. The Customer must comply with all requirements stipulated from time to time by The Crystal Garden Australia for entry to the Branch using the PIN, including that the Customer must;
(a) follow all directions given by The Crystal Garden Australia as to the procedure for obtaining access to the Office;
(b) enter the Office at its own risk, and any injuries or death or damage to equipment or property that may occur while loading or unloading Equipment are the responsibility of the Customer;
(c) ensure that the main gate of the Office is closed and locked when leaving the Office, failing which the Customer will be liable for any theft or attempted theft of equipment from the Office, or for any damage to equipment at the Office, or damage to the Office itself;
(d) consent to being filmed or photographed by CCTV while at and entering and leaving the Office;
(e) Before it enters the Office, ensure that it has requested and obtained from Crystal Garden any assistance it may require as to the operation and safe use of the Equipment;
(f) at all times keep confidential the PIN, and ensure that the PIN is only used by the person to whom it is issued and that no other persons are given access to the Office at any time; and
(g) only take into their possession, Equipment detailed on an active Hire Schedule provided to the Customer by The Crystal Garden Australia.
