In this contract, unless the contrary intention appears:
“Equipment” means the goods or hire asset, supplied by Mobile Icebox to the Hirer whether as specified in this invoice or not, and any one or more of those goods.
“Firm” means Mobile Icebox, its successors, and assigns.
“Hirer” means the person specified as the Hirer below.
“Contract” means this Hiring Agreement including these conditions of hire.
Words importing the singular number shall include the plural number and vice versa. Words importing any gender shall include all other genders and the neuter. Words importing persons shall include corporations, associations, clubs, societies, government bodies, or authorities and any other entities.
The Hirer agrees that the Contract contains all terms and conditions of the agreement between the Hirer and the Firm and that there are no express or implied warranties or conditions given or made by the Firm other than those contained in the Contract and those that mandatorily apply to this Contract by operation of Statute. The Hirer acknowledges that this agreement is between the Hirer and the Firm and that it is not intended to render the Firm liable for any cause whatever to any persons other than the Hirer. The Firm makes no representation or warranty of any kind, express or implied, with respect to the Equipment, including warranties of merchantability or fitness for a particular purpose.
The Firm gives a limited warranty that in the event of any failure of or any defect in the Equipment the Firm in its discretion shall replace or repair the Equipment, supply it again at an agreed time and place or refund the hiring charge.
The Firm shall not be liable for any injury to any person or property, or physical or financial damage suffered by the Hirer or any other person however arising, including as a result of any defect in the Equipment, its setting up or installation or the services provided by the Firm and negligent acts or omissions by the Firm, its employees and contractors.
The Firm shall not be liable for any direct, indirect, special or consequential damages or loss (i) resulting from the non-delivery, delivery, manufacture, installation, use or operation of the Equipment, or from any defects in, failures, malfunctions, repairs, replacements or alterations thereof, or (ii) without limitation, any other liability of any nature with respect to the Equipment or this Contract or any breach thereof or arising out of negligence. The Firm will not have any liability under, arising out of, or in connection with this Contract for financing costs, loss of profit, loss of anticipated profit, business interruption, loss of revenue, loss of opportunity, loss of contract, loss of use, damage to goodwill or reputation, loss or expense resulting from a claim by a third party, or loss of anticipated savings.
To the fullest extent permitted by law the Hirer indemnifies the Firm against all claims, suits and actions by the Hirer or any employee or invitee of the Hirer who suffers loss of any type during the course of the hiring excepting claims within the scope of the above limited warranty. The Hirer shall indemnify and hold harmless the Firm, its directors, officers, employees, agents and representatives, from any and all claims, actions, suits, proceedings, costs, expenses, damages and liabilities, including attorneys’ fees, arising out of, connected with, or resulting from, this Contract or the breach thereof.
The Equipment shall at all times remain the absolute property of the Firm regardless of the degree of its annexation to any real property and shall not by reason of any annexation become a part thereof. A specific label identifying the Equipment as Firm property has been fixed to the Equipment and shall, in no instance, be hidden or concealed by the Hirer. All equipment, attachments, accessories and repairs made to or placed upon the Equipment shall immediately become the property of the Firm and subject to the terms and conditions of this Contract as if originally hired hereunder.
The Hirer shall not part with possession of the Equipment other than for its intended purpose for the event or at the place of delivery as specified in this invoice. The Hirer shall not tow or move the Equipment once set up if the hire asset is portable. The Hirer shall keep the Equipment at the address specified in this Contract and not remove it from there without the Firm’s prior written consent. The Hirer shall not assign, sublet or pledge any of the Equipment or any interest in this Contract, and any attempt to do so shall constitute an act of default hereunder.
From the time the Equipment is shipped from the Firm’s facility or depot until it is returned to the Firm’s designated facility or depot, the Hirer shall:
(i) use the Equipment solely in the conduct of its business;
(ii) use and preserve the Equipment in a careful, proper and lawful manner;
(iii) at its own expense keep the Equipment in good repair, condition and working order and pay the cost of any and all parts and labour required for that purpose, using only parts manufactured or furnished by the manufacturer of the Equipment;
(iv) not make any material alterations to the Equipment;
(v) promptly notify the Firm of any loss of or damage to the Equipment; and
(vi) assume the entire risk of loss of and damage to the Equipment, and injury or death to persons, from any cause whatsoever arising under this Contract.
The Hirer agrees not to overload or misuse the Equipment and not to permit any other persons to do so. The Hirer agrees that before using the Equipment it shall inspect same and satisfy itself that it is correctly and safely installed and shall not use the Equipment or allow others to use it if there is any apparent or potential defect or danger to persons using the Equipment. Before setting up and installing the Equipment, the Hirer shall verify that the operation of the Equipment will comply with any regulations applicable to the jobsite in which the Equipment will be temporarily installed. Any alterations or modifications with respect to the Equipment that may at any time during the term of this Contract be required to comply with any applicable law or governmental rule or regulation shall be at the expense of the Hirer.
The Firm may inspect the Equipment at all reasonable times.
The Hirer shall be wholly and fully responsible to the Firm for the Equipment and any part thereof from delivery to the Hirer, its assistant or agent or the place nominated by the Hirer until redelivery by the Hirer, its assistant or agent to the Firm or its agent.
The Hirer shall redeliver the Equipment in the same good order and condition as it was at the time of delivery and in the event of the Equipment being damaged or soiled in any way whatever and from any cause whatever while in the possession of the Hirer, the Hirer shall pay on demand the cost of cleaning, repairing or replacing the Equipment as notified by the Firm to the Hirer, or have the cost deducted from the Security Bond or asked to pay by credit card. The balance of the Bond shall be forwarded to the Hirer 7 to 10 working days after the return and verification of Equipment. The amount of any costs payable hereunder shall be a liquidated debt due to the Firm by the Hirer upon demand.
In the event of damage to or loss, destruction or theft of the Equipment or any part thereof, the Hirer shall pay to the Firm the full value of the Equipment at the time of such occurrence. Such payment may, at the Firm’s option, be applied (i) to repair such Equipment, or (ii) to afford the Hirer a pro rata reduction in the rental payments attributable to the lost or damaged Equipment, or (iii) to replace the Equipment with equipment of the same make and the same or later model.
The Hirer will procure and maintain at all times the necessary insurance(s) which may be required in any jurisdiction where such Equipment may be used or operated and shall present the relevant insurance certificate corresponding to the Equipment to the Firm within 15 working days of execution of this Contract. The Hirer, at its own expense, will maintain all-risk insurance coverage on the Equipment for its full replacement value, and also such other insurance as the Firm may require, in amounts and under policies acceptable to the Firm, with loss payable to the Hirer and the Firm as their respective interests may appear. Upon request of the Firm, the Hirer shall furnish certificates of insurance evidencing such coverage. Each policy shall provide for thirty (30) days written notice to the Firm of cancellation or material modification thereof. The Hirer shall promptly notify the Firm of each accident involving any Equipment, including time, place, nature of the accident or damage, and such other information as may be known; advise the Firm of all correspondence, papers, notices or documents received; aid in the investigation and defence of all such claims; and assist in the recovery of damages from third parties that may be liable therefor.
The Hirer shall report and pay to the appropriate authority(ies) any and all licence fees, registration fees, assessments, charges and taxes, including penalty and interest, assessed against said Equipment due to rental or use thereof and reimburse the Firm upon request for any such amounts assessed against the Firm by reason of the rental or use of said Equipment, except for taxes payable in respect of the Firm’s income.
The Hirer may by notice to the Firm cancel the Contract on or prior to the delivery or pick-up day only if the notice is received by the Firm more than 30 days prior to delivery or pick-up. The Firm shall not be obliged to make any rebate on the total charge in the event that the Hirer does not take delivery or returns the Equipment prior to the required date.
In the event any specified Equipment is not available the Firm may deliver, and the Hirer shall accept, other similar Equipment in substitute therefor.
All rights and obligations under this Contract shall not be affected by any delay caused by any circumstances beyond the control of the parties, including but not limited to Acts of God, fire, flood, war, government acts or regulations, strikes, lockouts or concerted acts of workmen.
If the Hirer breaches its obligation to pay rentals when due or any of the other terms of this Contract, or if the Hirer becomes insolvent or ceases to do business as a going concern, or if the Equipment or any part of it is abused, illegally used or misused, or if the Hirer makes an assignment for the benefit of creditors, or if a petition in bankruptcy or for arrangement or reorganization is filed by or against the Hirer, or if property of the Hirer is attached or a receiver is appointed for the Hirer or any of the Hirer’s property, or if the Hirer is in default pursuant to the provisions of any other agreement by and between the Firm and the Hirer, or whenever the Firm may deem the rentals or Equipment insecure, the Hirer hereby authorises the Firm to enter, with or without legal process, any premises where the Equipment may be and take possession thereof, or at the request of the Firm, the Hirer will assemble the Equipment and make the Equipment available to the Firm, in whole or in part as requested, at such place or places designated by the Firm. All remedies herein are cumulative and any or all such remedies may be exercised in lieu of or in addition to any remedies at law, in equity or under statute. If after default this Contract is placed with a collection agency for unpaid rentals or enforcement of any other right or remedy of the Firm, the Hirer shall pay reasonable attorneys’ fees. Waiver of any default shall not be a waiver of any other or subsequent default.
All notices required to be given hereunder shall be in writing and shall be deemed adequately given if sent by registered or certified mail to the other party at the registered address of such other party, or at such other place as either party may designate in writing to the other party.
All disputes, controversies or differences arising between Parties out of or in connection with this Contract shall be settled first by mutual discussion and, only if that is unavailing, Parties shall submit to the exclusive jurisdiction of the courts of New South Wales, Australia and to the appeal courts from them.
This document and any attachments hereto constitute the entire agreement of the parties with respect to the subject matter hereof. No variation or modification of this document and no waiver of any of its provisions or conditions shall be valid unless in writing and signed by both parties.
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