TERMS AND CONDITIONS OF HIRE
- “The Owner” is Findlay Miller Pty Ltd, ABN 21 602 962 256
- “Goods” means anything provided by the Owner to the Hirer pursuant to this agreement, and includes but is not limited to all furniture, artwork, accessories, soft furnishings, and related items.
- “Hirer” means the Hirer specified on the front page hereof.
- “Initial Term” means the initial term specified on the front page hereof 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 the front page 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 the front page of this agreement or otherwise agreed in writing between the Parties.
- “Parties” means the Owner and the Hirer.
- “Period of Hire” means the Initial Term, any extension of the Initial Term and any other period during which the Goods are at the property or have otherwise not been returned from the Property to the Owner.
- “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(1a).
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.
- The Hirer shall pay the Initial Term Hire Fee to the Owner at least two business days prior to the date scheduled for installation of the furniture or other Goods.
- The Ongoing Hire Fee in respect of each week of the Period of Hire or the Initial Term must be paid by the Hirer to the Owner before the commencement of such week, with the first such 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 hire period, of termination of the hire 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 authorized 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 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.
- The Hirer is in all respects responsible for arranging clear and adequate access to the property in order for the Owner to deliver and collect the Goods. If, for any reason, the Owner is unable to gain access for those purposes or such access is in any way hindered for any reason, the Hirer will indemnify the owner in respect of any additional costs that arise as a result of such inaccessibility or hindrance.
DELIVERY & COLLECTION OF GOODS:
- The Hirer is responsible for arranging access to the Property during normal business hours Monday to Friday (excluding public holidays) for the delivery and/or collection of the hired Goods. If the Owner is unable to gain access, the Hirer will pay all additional costs incurred by the Owner for the re-delivery or re-collection of the Goods.
- The Owner is unable to accept responsibility for damages to the Hirer’s property if there is no one on-site at the Property 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 hired Goods
- The Owner does not allow delivery and/or collection of the Goods other than by its own qualified staff and/or contractors.
- Photographs organized by the Hirer are to be scheduled for the day after installation by the Owner.
ACCESS TO PROPERTY:
- Please ensure all tradesmen and painters have completed their work before the scheduled delivery time. OHS regulations prohibit the Owner from entering premises where access is unsafe
- The Hirer will inform the Owner about any access difficulties or delays. Failure to notify the Owner of construction work being carried out at the time of delivery and collection will incur a charge of an additional 20% of the hire fee (for the Initial Term) for time lost and for futile delivery or collection
USAGE OF GOODS:
- The Hirer understands the Goods are being provided for the purpose of display only and not for domestic/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 in all respects 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;
- they should be returned immediately to the Owner with written notice if the defect or unsuitability
- 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 may take any civil or criminal action as it deems necessary for the recovery of possession 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.
- In the event of a breakdown or failure or other issue with the Goods or defect in 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 not 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 to the Owner.
- The Hirer shall be responsible in all respects for ensuring that the Goods are appropriate for the Property, and the specific part of the Property 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 Property or any injury or death to any person or any property or goods of the Hirer, 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:
- 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 include any artwork or mirrors, the Hirer acknowledges that the Owner may be required to drill or nail holes in walls in order to hang same. The Hirer acknowledges that such drilling and holes will remain and shall not be required to be rectified by the Owner.
- 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 property or goods for the purposes of styling the property, the Owner shall not be responsible for any damage that arises in respect thereof howsoever caused.
- When Goods are provided by the 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 hired 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.
- Where artwork or mirrors are provided and hung in the Premises by the Owner no responsibility for wall damage will be accepted. It is the responsibility of the Hirer to advise in writing at the time when styling services are provided if hooks, imaging fixtures etc are not to be used.
- Photographs taken by the Owner and/or its agents of the Styling Services at the property 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 property.
- No responsibility will be taken for personal items 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 their personal effects do not get collected with the Owner’s Goods.
CHANGE OF ADDRESS:
The Hirer shall not relocate the Goods from the Premises without the written consent 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.
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.
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 premises 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 ay 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 waiver of some previous default by the Hirer, the Owner may terminate the Agreement and repossess the Goods:
- if the Hirer shall fail to pay any hiring charges as and when they fall due; or
- 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;
- 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 other order be made or resolution be passed for the Hirer’s winding up; or
- If the Hirer commits any breach of this Agreement
- This clause 12 shall only apply if:
- The Hirer notifies the nearest Police Station within 48 hours of any of the Goods being stolen or vandalized as a result of a forced entry to the Premises.
- 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 any such Relevant Event was caused or contributed to directly or indirectly by the negligence or willful 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.
- Client – do you want any excess to be paid by the Hirer?
- 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 as a result of a Relevant Event in those circumstances
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. Any free hire weeks given on the initial minimum hire period 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 enters into a binding contract for the sale of the Premises, notifies the Owner in writing that it wishes to cancel the agreement, the Owner agrees to discount the payment amount for the initial minimum hire period by 50% provided the payment is made by the Hirer at the time of the notification. The Owner will not agree to any discount once the Goods have been delivered (or attempted to be delivered) to the Premises.
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.