WHAT THIS DOCUMENT DOES
This document sets out the terms and conditions of an agreement (this “Agreement”) with you the hiring customer (”you”) in respect of all present and future hires of equipment (“Equipment”) by Kookaburra Containers Pty Ltd ABN 22 079 735 050 (“we” or “us”) to you. If you wish to hire Equipment from us we may ask you to sign or otherwise authorise a hire agreement and order confirmation, purchase order or other document we present to you (collectively called “Order Confirmation”). The Order Confirmation is not a separate contract but is part of and must be read together with this Agreement. You enter into this Agreement by signing it, or by signing a document such as an Order Confirmation which incorporates its terms. An Order Confirmation may include special conditions which apply in addition to these terms and conditions. We may decline to hire Equipment to you in our discretion.
(a) At all times we own the Equipment hired to you. You do not have any right, interest or claim in or over the Equipment except as expressly set out in this Agreement.
(b) You do not have any express or implied right or entitlement to sell, charge, encumber, grant any right, interest or lien (of any nature) in or over, the Equipment.
(c) You must not alter the Equipment in any way or change or obscure the identification lettering and numbering on any Equipment. If you fail to remove any markings you have added to the Equipment upon return of the Equipment, we may do so at your cost.
(d) At all times we own all intellectual property rights attributable to the Equipment or anything we do in connection with this Agreement including in any inventions, drawings, designs or other work.
2) WHAT FEES AND CHARGES ARE PAYABLE BY YOU?
(a) Hire Fee. You agree to pay us the charges (including the Hire Fees specified) for each unit of Equipment hired or services supplied. Charges are due and payable in accordance with the terms specified by us (and if not specified, within 14 days of invoice). We may increase the charges upon no less than one month’s notice to you or as otherwise agreed.
(b) Calculation of Hire Fee. You must pay all charges for each period regardless of the number of days in such period you hired the Equipment.
(c) Payments. You must pay the charges, without deduction, set off or counterclaim. Unless we have agreed to credit terms the charges will be automatically debited to your nominated credit card or bank account as set out in the Order Confirmation until all Equipment has been returned and you have fulfilled all your obligations under this Agreement.
(d) Late payments. If any charges are not paid on the due date, you will pay interest on the unpaid charges at the rate of 18% per annum, calculated monthly.
3) TERM OF THE AGREEMENT; DELIVERY OF EQUIPMENT
(a) The term of a hire (Hire Term) commences on the date you take possession of the Equipment or sign a receipt acknowledging delivery, and terminates on the date you return the Equipment as specified in Section 4 or on the date we terminate this Agreement.
(b) Risk in and responsibility for the Equipment passes to you when the Equipment is loaded onto any vehicle for transport at our premises or the premises of our nominee, regardless of whether you collect the Equipment or we or our subcontractors deliver it.
(c) You must not move the Equipment from the location specified in the Order Confirmation without our prior written consent, and must never move the Equipment out of Australia.
4) RETURN OF EQUIPMENT
(a) At the end of the Hire Term, you must return the Equipment to us at the depot specified by us. The Equipment will be considered returned to us only if, and on the day that, we issue to you a written receipt for the return of the Equipment and all charges and repair and damages costs assessed by us are paid by you to us.
(b) You must ensure all waste receptacles are emptied prior to return.
5) WHO BEARS THE RISK OF DAMAGE/LOSS/THEFT
(a) Except for normal wear and tear, you must pay us on demand for all damage to, loss or destruction of, the Equipment that occurs during the Hire Term and while the Equipment is in your control or possession (the Control Period).
(b) You are solely responsible for any damage to, spoilage of or theft of the Equipment or any contents stored in the Equipment during the Control Period, including, without limitation, damage caused by leaking of any Equipment, failure or malfunction of any refrigeration unit that is part of or leased in connection with the Equipment, condensation, humidity, transport, theft, fire, vandalism, vermin, insects including termites/white ants, heat, cold, dust, water or loss caused by forces of nature. In reference to termite/white ants you should be aware that in many areas, placing containers directly on bare ground represents a high risk of termite ingress and damage for which you will be liable.
(a) Termination of hire. A hire under this Agreement terminates on the date the Equipment is returned to us pursuant to Section 4.
(b) Termination of this Agreement. Upon the termination of this Agreement for any reason you must immediately return all Equipment and pay us all charges owing under this Agreement, and any legal fees to recover possession of the Equipment.
7) REPAIRS AND MAINTENANCE
(a) You must at your cost maintain the Equipment in good repair and safe operating condition. You agree to: (i) return the Equipment in clean and good condition and free of labels and graffiti; and (ii) pay us on demand for any costs necessary to clean, repair and ready the Equipment for lease by our customers.
(b) We will assess if there is any damage to the Equipment. Within 10 working days of the return of the Equipment to us we will notify you in writing of the costs of any repair or cleaning costs for the Equipment returned.
(c) Compliance with law. You must use the Equipment in compliance with applicable law and regulations. We may inspect the Equipment at any time.
8) LOSS OR TOTAL DAMAGE
If during the Hire Term or Control Period, the Equipment is lost, stolen, destroyed or damaged (which in our sole opinion) is not repairable, you must: (i) immediately notify us in writing of such occurrence; (ii) continue to pay us all charges owed until the end of the Hire Term; and (iii) pay us the replacement value for the Equipment as specified by us. Payments for hiring charges will not be applied to charges for the replacement value.
9) OPERATION DURING HIRE TERM
You are responsible to fully comply with any operation instructions or conditions displayed in or on the Equipment or which may be provided to you.
10) DEFAULT, REMEDIES UPON DEFAULT
(a) What is an event of default? You commit an event of default under this Agreement if (i) you fail to pay any charges when due under the Order Confirmation or this Agreement and you do not remedy your failure within two (2) business days of the date that we notify you of your failure; (ii) you fail to perform any other obligation under the Order Confirmation or this Agreement and you do not remedy your failure within five (5) business days of the date that we notify you of your failure; or (iii) you cease doing business, have a liquidator, administrator, receiver and manager, controller or other like officer appointed over any or all of your assets, become insolvent, commit an act of bankruptcy or become the subject of any proceeding under any bankruptcy act, or its counterpart under the law of Australia or any territory outside of the jurisdiction of Australia.
(b) If you default on any nominated credit card, direct debit or other manner of payment, then you will be liable for an administration fee as determined by us from time to time, without limiting our rights upon such default.
(c) What are our rights after an event of default? If an event of default occurs, we may (but are not obliged to) immediately without notice to you and without releasing you from any accrued obligations do one or more of the following (i) terminate this Agreement; (ii) declare the balance of the charges due and payable by you; (iii) retake possession of the Equipment; and (iv) remedy any default that you commit under the Order Confirmation or this Agreement (at your cost).
(d) Your rights to use the Equipment cease. On termination of this Agreement you must immediately return the Equipment to us. We will be entitled to treat any Equipment not returned as stolen, and report the matter to the Police for action.
(e) Right to recover Equipment. You irrevocably authorise us at your cost to enter upon any property where the Equipment is located for the purpose of removal of any Equipment hired to you if and when this Agreement is terminated, and in doing so you irrevocably authorise us at your cost to take possession of any property in, on or attached to the Equipment which is not our property, remove any locks from Equipment and you acknowledge and agree that we are not liable for the care or safekeeping of any property removed from Equipment.
(f) Replacement of non-returned Equipment. If you do not return any Equipment within 14 days of the termination of this Agreement, you must pay to us an amount equal to the replacement value as specified by us (such amount will not include depreciation).
(g) Termination does not discharge your obligations. Termination of this Agreement will not relieve or discharge you from any obligations under this Agreement incurred prior to termination.
11) WARRANTIES – NON-CONSUMER EQUIPMENT
(a) Application of this clause 11. This clause 11 applies only where the amount payable for provision of the hire of the Equipment during the Hire Term exceeds $40,000 or the Equipment is not ordinarily acquired for personal, domestic or household use.
(b) State of the Equipment. You acknowledge and agree that you: (i) have inspected the Equipment prior to or upon its delivery to you; and (ii) you accept it in its current state.
(c) Exclusion of warranties. To the full extent permitted by law, we exclude and are not liable for any condition or warranty (of any kind) which is not expressly set out in this Agreement.
(d) Specific warranties excluded. Without limiting paragraph (c) above, we make no express or implied warranty in relation to: (i) the fitness of the Equipment for any particular purpose; (ii) the merchantability of the Equipment; or (iii) the description, state, quality or condition of the Equipment.
(e) Limitation of Liability. You agree that if you suffer a loss (including economic loss), damage, cost, expense or claim howsoever arising as a result of the hiring or our maintenance and support of the Equipment including, without limitation, any defect in the Equipment, our liability to you is limited to the repair or replacement of the Equipment.
12) WARRANTIES – CONSUMER EQUIPMENT
(a) Application of this clause 12. This clause 12 applies only where the amount payable for provision of the hire of the Equipment during the Hire Term is $40,000 or less or the Equipment is ordinarily acquired for personal, domestic or household use.
(b) Application of consumer guarantees under the Australian Consumer Law.
Our Equipment comes with guarantees that cannot be excluded under the Australian Consumer Law. You are entitled to a replacement or refund for a major failure and to compensation for any other reasonably foreseeable loss or damage. You are also entitled to have the Equipment repaired or replaced if the Equipment fails to be of acceptable quality and the failure does not amount to a major failure.
(c) Equipment presented for repair may be replaced by refurbished goods of the same type rather than being repaired. Refurbished parts may be used to repair the Equipment.
13) PERSONAL PROPERTY SECURITIES ACT
(a) To the extent a hire under this agreement creates a PPS lease, as defined in the Personal Property Securities Act 2009 (Cth) as amended (PPS Act), we have a security interest in the Equipment as well as its proceeds for the purposes of the PPS Act. For the purposes of the PPS Act the collateral is described as containers and related equipment and the collateral may be further described in an Order Confirmation.
(b) You acknowledge and warrant that any Equipment or materials hired from us are not hired predominantly for personal, domestic or household purposes and you agree to indemnify us against any loss or damage arising from a breach of such warranty.
(c) You acknowledge that we may do anything reasonably necessary, including but not limited to registering any security interest which we have over the Equipment and/or any property inside the Equipment on the Personal Property Securities Register in order to perfect the security interest as a first priority security interest and comply with the requirements of the PPS Act. You agree without charge to provide all information and do all things reasonably necessary to assist us to undertake the matters set out above. You waive pursuant to s.157(3)(b) of the PPS Act the right to receive notice of a verification statement in relation to any registration on the register.
(d) You and we agree that any security interest we have over the Equipment is a PPS lease, as defined in the PPS Act, which does not secure payment or performance of an obligation, and accordingly that chapter 4 of the PPS Act does not apply.
(e) You and we agree not to disclose information of the kind that can be requested under section 275(1) of the PPS Act You must do everything necessary on your part to ensure that section 275(6)(a) continues to apply. However, we will not be liable to pay you compensation in respect of any disclosure in breach of this clause.
(a) You may only on-hire the Equipment to a third party with our prior written consent and provided the hire agreement (sub-hire) includes express acknowledgement from the third party that:
(i) a person other than you is the legal owner of the Equipment and that you have entered into an agreement to hire the Equipment from us;
(ii) the third party is aware the sub-hire will breach our security interest in the Equipment unless we consent to the sub-hire and they are bound by the terms of our consent;
(iii) the exercise of any rights by us will not constitute a breach or default under the sub-hire or otherwise entitle the third party to terminate or rescind the sub-hire;
(iv) the third party’s rights in respect of the Equipment are expressly subject and subordinated to our rights and nothing in the sub-hire will in any way limit, reduce, vary or otherwise qualify our rights under our agreement with you; and
(v) if our agreement with you terminates:
• we may by notice to the third party terminate the sub-hire and the third party must return the Equipment to us, even if the third party may not be in breach or default of its obligations under the sub-hire; and
• we may enter any premises where any Equipment is located to exercise our rights or your rights under the sub-hire including, if the need arises, the right to remove the Equipment; and
• the third party will obtain all necessary consents from the owner, occupier and other interested persons (such as any mortgagee) of the relevant premises where the Equipment is located to enable us to inspect or take possession of the Equipment.
(vi) if you sub-hire goods in accordance with clause 15(a), you must do everything required to ensure that your security interest is and remains perfected by registration as a first priority purchase money security interest (PMSI). If the security interest is capable of being perfected by a serial number registration in relation to any of the Equipment you must also ensure that the registration is by serial number.
(b) You hereby grant us a security interest over all sub-hires and chattel paper arising in respect of sub-hires to secure your obligations to us under this agreement. If we request at any time, any chattel paper must be:
• permanently and prominently marked in such a way that no other person can take possession of the chattel paper without being put on notice of our security interest in the sub-hire and chattel paper;
• delivered to us and held in our possession.
(c) At our discretion, we may perfect any security interest held by us against any third party (including a third party who sub-hires the Equipment) in any manner we consider appropriate to protect our interest in the Equipment, the sub-hire and chattel paper.
(d) If requested by us, you must provide us with all details as to the location of the Equipment and the identity of any person hiring Equipment under a sub-hire.
All notices must be given to the address shown in the Order Confirmation, or to such other address as may be designated in writing by either party to the other. Business day means any day which is not a Saturday, Sunday or public holiday in New South Wales.
You indemnify and hold us harmless from all liability, damage, cost or expense arising out of any: (i) failure by you to comply with your obligations under this Agreement; (ii) any claim for personal injury or death, and for loss of or damage to person, property, cargo, vessels or vehicles, arising out of or incidental to the ownership, selection, possession, leasing, operation, control, use, storage, contents (including dangerous goods), loading, unloading, moving, maintenance, delivery or return of the Equipment; (iii) any forfeiture, seizure, or impounding of, or claim of charge, lien or encumbrance on the Equipment. This indemnity survives the termination of this Agreement.
17) NOT LIABLE
To the full extent permitted by law, we are not liable for any indirect, economic, special or consequential loss or damage of any nature, including, without limitation, any loss of business or revenue, loss of profits, loss of opportunity, loss of goodwill, anticipated savings or expenses, in connection with or arising out of this Agreement or an Order Confirmation or the supply of the Equipment. Nothing in this clause does, or is intended to, exclude or limit any rights you may have under the Australian Consumer Law.
18) YOU CANNOT ASSIGN YOUR RIGHTS
You have no right to assign this Agreement or to part with possession of the Equipment to any other party without our prior written consent.
We may licence, subcontract, assign, let or sell all or any part of our rights and obligations pursuant to this Agreement without your consent.
(a) This Agreement binds the parties, their successors and assigns and is governed by the laws of New South Wales.
(b) Should it be necessary for us to incur legal and/or other expenses (including commercial agent and private enquiry fees) in enforcement of our rights under this Agreement or in obtaining or attempting to obtain payment of any amount due by you, you undertake to reimburse us on an indemnity basis the whole amount of such expenses and fees.
(c) No failure to exercise or delay in exercising any right, power or remedy by us operates as a waiver.
(d) This Agreement may only be modified or varied by you if agreed in writing by us. We may give you notice varying this Agreement and the varied Agreement will take effect in respect of all hires entered into after notice of the variation. You also agree that display by us of the varied term and conditions of hire on our website (currently www.kookaburracontainers.com.au) is deemed to be notice of any variation. This Agreement overrides and excludes any terms and conditions imposed by you.
(e) You are responsible for the payment of all taxes and levies, duties or charges which arise under or in connection with this Agreement (including, if any, stamp duty).
(f) (i) The prices shown for the Equipment in this Agreement do not include GST. (ii) If we become liable to pay GST in respect of the hire or supply of the Equipment, the Hire Fee payable under this Agreement will be increased by the amount of the GST payable by us in respect of that hire or supply (being GST on the increased price including the GST). (iii) The GST amount will be notified by us to you and must be paid by you to us in the same manner and at the same time as the rest of the Hire Fee.
(g) Drawings provided are our property and are conditionally loaned to you and you agree not to reproduce them in whole or in part, nor make any use of them that has not been approved in writing by us.
(h) You consent to us using and disclosing your personal information for the purposes of direct marketing.
20) CARRIAGE SERVICES
(a) Where we or our subcontractors provide delivery, carriage, relocation or collection services for you, it is agreed that we and our subcontractors are not common carriers and accept no liability as such. All delivery, carriage, relocation and collection services are performed at your risk. You bear all risk of loss or damage to or arising out of the Equipment or its contents.
(b) You must not tender for carriage any explosive, flammable, hazardous or damaging goods without presenting a full description of those goods.
(c) We and our subcontractors are not liable for failure to deliver, delay in delivery of, or misdelivery of the Equipment or its contents, however caused.