Whitfields Solicitors Ground floor, 192 Victoria Road, DRUMMOYNE NSW 2047 (PO Box 512, DRUMMOYNE NSW 1470)
Ph: 02 9819 6299 Fax: 02 9819 7299 Email: email@example.com
Between: Name and address of the Park “the Park” And
The Park and the Hirer agree that:- The Park will let to the Hirer, and the Hirer will take on hire, the Equipment described in Item 1 of Schedule A (“the Equipment”):- 1. at the Rent set out in Item 2 of the Schedule (“Rent”); and 2. for the Term set out in Item 3 and 3. commencing on the date set stated in Item 4 of the Schedule (“the Term”); and 4. subject to and in accordance with the Terms and Conditions attached hereto.
Signed by the Hirer
(Signature of Witness)
In the presence of:
I/We acknowledge receipt of the Safety Instruction Card
VERIFICATION INFORMATION Hirer Identification Required: Licence Number: Expiry Date: Other:
Credit Card Information Required: Credit Card: Card Type: Visa / Mastercard / American Express VISAMASTERCARDAMERICAN EXPRESS Card Number: Expiry Date:
Sighted and verified by:
CONDITION REPORT Condition of the Equipment: Defects: Aesthetic Damage:
TERMS AND CONDITIONS
1. The Agreement
1.1 The Equipment Hire Agreement and Schedule A, Verification Information, Condition Report and these Terms and Conditions together comprise the agreement (the “Agreement”) and set out all of the terms, conditions, warranties and undertakings concerning the hire of the Equipment. The Park agrees to rent the Equipment to the Hirer and the Hirer agrees to accept the rental.
2. Collection or delivery of the Equipment
2.1 The Park will deliver the Equipment to the Hirer at the place specified in Item 6 of the Schedule and on the date specified in Item 4, or if no such place is mentioned then the Hirer shall collect the Equipment at the Park’s depot.
3. Return of the Equipment
3.1. The Hirer agrees to return the Equipment at the time and date specified in Item 7 of the Schedule and to the address specified in Item 8, or sooner if reasonably requested by the Park, including where the Park reasonably believes that the Hirer has breached or is likely to breach the Agreement.
3.2. If the Hirer returns the Equipment outside of Business Hours, then the Hirer will remain responsible for the Equipment until it is returned to the Park and the Park has inspected and accepted the return.
3.3. If the Hirer does not return the Equipment on the Return Time and Date stated in Item 7 of the Schedule, then after the Park sends a written demand to the Hirer to return it, the Park may take steps to recover and repossess the Equipment where and when it is found and the Park is entitled to deduct from the deposit the collection fee noted in Item 9.
3.4. The Hirer authorises the Park to enter any premises owned or occupied by the Hirer or where necessary, the Hirer agrees to make all reasonable efforts to obtain the right for the Park to enter any premises in order to recover and repossess the Equipment. From the date of such written demand, the Park may exercise its legal rights to recover and repossess the Equipment and the Hirer agrees to cooperate with the Park to recover the Equipment.
3.5. The Hirer must reimburse the Park for its reasonable costs of recovering or repossessing the Equipment where such costs are a consequence of the Hirer’s failure to return the Equipment in accordance with this Agreement. Except to the extent of the Park’s fault, the Hirer indemnifies the Park against any claim made by any third party resulting from the Park’s recovery or repossession of the Equipment.
Upon the delivery of the Equipment to the Park, the Hirer will thoroughly clean the Equipment and remove any dust, building residue or chemicals or other materials injurious or possible to be injurious from the Equipment, in accordance with the manufacturers approved maintenance manual.
4. Charges The Hirer agrees to pay the Park the following charges (collectively the “Charges”):
4.1. The Rent specified in Item 2 of the Schedule;
4.2. The Deposit specified in Item 5 of the Schedule;
4.3. Time charges – A charge equivalent to the hourly/daily rental rate of the Equipment for each full and partial hour/day that the Equipment is not returned after the Return Time and Date specified in Item 7 of the Schedule;
4.4. If the Equipment is not returned to the Park’s depot as provided by this Agreement, the cost of collecting or returning the Equipment;
4.5. Cleaning excessively dirty Equipment charged according to time taken and resources required to clean the Equipment;
4.6. Delivery / Collection Fees – The delivery / collection fees noted at Item 9 of the Schedule (if any), or any fees reasonably incurred by the Park to recover or repossess the Equipment in accordance with this Agreement and the Park is authorized to deducted any collection fees from the deposit held.
4.7. The cost of any Damages;
4.8. Debt collection expenses – Where the Hirer does not pay the charges in accordance with this Agreement, the Hirer must reimburse the Park for the Park’s reasonable expenses and costs incurred in collecting from the Hirer the charges payable under this Agreement and for reasonable interest charges;
4.9. Any other amount specified in these terms and conditions.
5. Deposit or Credit, Charge, Debit Cards or Cash
5.1 The Park agrees to refund the Deposit (if any) to the Hirer promptly following the Hirer’s performance of all obligations in this Hire Agreement, subject to clause 5.2.
5.2. The Hirer hereby authorises the Park to deduct from the Deposit any Charges and Collection fees due and payable by the Hirer under this Agreement.
5.3. If the Deposit held is insufficient to cover the Charges referred to in clause 5.2, or no Deposit is held, then the Hirer hereby authorises the Park to charge the balance of these costs to the credit, charge or debit Card, the details of which the Hirer has provided to the Park at the time of renting the Equipment for this purpose.
5.4. If the Hirer presents a Card at the commencement of the rental, then the Hirer authorises the Park to reserve credit with, or obtain an authorisation from, the Card issuer at the time of rental in an amount up to the expected cost of the rental (less any discount, credit or rebate), plus $100 (inclusive of GST) or other such amount advised at the time of signing this Agreement.
5.5. If the Park charges the Hirer’s Card for any Charges or for damages incurred by the Hirer, it will promptly notify the Hirer of the amount charged and provide details of the costs or damages as the case may be. If the Hirer disputes the Charges or damages, the Hirer can contact the Park who will deal promptly with any dispute and, if the Park reasonably considers that any amount should be refunded to the Hirer it will promptly credit that amount to the Hirer’s Card.
5.6. The Hirer warrants that the Card details supplied are for the Hirer’s Card (whether alone or with another person) and the Hirer is responsible for all amounts credited, charged or debited to that Card.
6. Use of Equipment
6.1. The Hirer shall be entitled to use the Equipment during the period specified in the Schedule for his or her own purposes subject to the terms and conditions of this Agreement at the Hirer’s usual address. The Equipment shall not be operated in any area excluded from coverage or otherwise not covered by any insurance mentioned herein or outside the geographical limits (if any) specified in the Schedule.
6.2. The Equipment must never be used recklessly, negligently or with deliberate intent to cause injury, loss or damage or while Intoxicated with any substance.
6.3. No other person may ride or otherwise operate the equipment except the Hirer. The Hirer is prohibited from carrying any passengers on the equipment at any time. The Hirer may not add any kind of seat or modification to allow someone to ride on the rear fender of a rented the equipment and no one may ride on the handlebars of a rented the equipment at any time. The Hirer is prohibited from pulling or towing any passenger or object with the equipment at any time. The Hirer is also responsible for making proper adjustments to the equipment and associated equipment if any to match the Hirer ‘s height weight and skill level.
6.4. The Hirer is responsible for securing the equipment at all times and must use the theft prevention device provided.
7. Full Responsibility
7.1. The Hirer agrees to take full responsibility for the Equipment from the time the Hirer takes possession of the Equipment until the Equipment is validly returned to the possession of the Park in accordance with clause 3 (“the Hire Period”) and is, to the fullest extent permitted by applicable law, responsible for all damages regardless of fault which occur during the Hire Period.
7.2. The Hirer agrees to indemnify, release and hold harmless the Park to the maximum extent permitted by law from any claim against the Park for loss of or damage to any person or property that is connected with the rental under this Agreement but does not include any damage incurred as a result of negligence of the Park.
8. Maintaining the Equipment
8.1. The Hirer and the Park acknowledge that the Equipment is generally in undamaged condition except as otherwise noted by the Hirer and the Park in writing in the Condition Report attached.
8.2. The Hirer shall maintain the Equipment using the care of a prudent Park in the same proper condition in which the Equipment was in at the commencement of the hiring, with allowance being made for reasonable wear and tear.
8.3. The Hirer shall return the Equipment to the Park, in the same proper condition in which it was at the commencement of the hiring, with allowance being made for reasonable wear and tear.
8.4. The Park will make due allowance for normal wear and tear but the equipment must at all times be capable of being operated fully and efficiently for the purpose, and to the capacity, for which the Equipment were intended at the date of the hire by the Park for the purposes of this Agreement.
8.5. The Hirer agrees to check the energy levels from the battery reader the at appropriate intervals and maintain them at the appropriate levels to ensure proper performance and functioning of the Equipment.
8.6. The Hirer will be fully responsible to the Park for any loss of or damage to the equipment (however occasioned). The Hirer must give reasonable notice to the Owner of any such loss or damage of a substantial or material nature in excess of normal wear and tear.
8.7. The Hirer must be capable of riding the equipment and comply with the instructions provided on the Safety Card.
8.8. The Hirer will throughout the Hire Period comply with all laws, regulations and requirements including but not limited to the Australian road rules or any local road rules which are applicable to the Equipment and its operation in any territory and/or state in which the Equipment is operated by the Hirer. The Hirer will operate the Equipment in accordance with applicable safety regulations and the Occupational Health and Safety Act.
9. Damage to Equipment
9.1. In the event of the Equipment being damaged to an extent which renders the same unfit (without major repairs) for further use by the Hirer, then the Hirer will return it promptly to the Park at the expense of the Hirer.
9.2. Where the Equipment has been damaged in any way excepting fair wear and tear, the Hirer must pay the Park Damages to cover the repair or replacement of the Equipment.
9.3. The Hirer hereby assumes and shall bear the entire risk of loss and damage to the Equipment from any and every cause whatsoever, fair wear and tear excepted.
9.4. No loss or damage to the Equipment or any part thereof shall impair any obligation of the Hirer under this Agreement which shall continue in full force and effect through the term of the Hire Agreement.
9.5. In the event of loss or damage of any kind whatever to the Equipment, fair wear and tear excepted, the Hirer shall pay to Park the replacement cost of the Equipment less depreciation.
10. Limited Liability and Indemnity
10.1. The Hirer has certain rights given to him or her by the consumer protection legislation. Except for these rights, the Park provides no other warranties in respect of the Equipment and the Park accepts no responsibility or liability to the Hirer or any other person who uses the Equipment during the Hire Period, for any loss, damage, costs, expenses or any other liabilities resulting from the Equipment.
10.2. The Hirer understands and acknowledge that the Trike is provided “as is” and without warranties. The Hirer further understands and acknowledges that cycling is a hazardous activity that entails known and unanticipated risks which could result in damage to self, to property , or to third parties. The Hirer knowingly and voluntarily assume all risks related to the operation and possession of the Trike including without limitation and bodily injury or death to any person, or property damage which may result from the operation of the equipment or possession of the ride even if such loss or damages is due to any negligence of the Park, their agents employees officers partners members successors and or assigns. Despite knowing all associated risks, the Hirer freely assumes all risks of personal injury and/or damage in the operation of this Trike and the Hirer agrees to hold the Park harmless from all claims of injury or damage.
10.3. Without limiting the assumption of risk and any waivers set forth herein the Hirer knowingly and voluntarily waives any claim it may have against the Park and with respect to the proper adjustment of helmets pedals seat posts and other such equipment.
10.4. The Hirer shall indemnify and release the Park against, and hold the Park harmless from, any and all claims, actions, demands, suits, proceedings, costs, expenses, damages and liabilities, including reasonable solicitors fees and costs, arising out of, in connection with, or resulting from the Equipment during the Hire Period (whether direct or indirect and irrespective of jurisdiction), including but not limited to the manufacture, selection, possession, use, operation and/or return of the Equipment and in relation to the risks referred to in clause 10.2.
11.1. This Agreement may be terminated and cancelled forthwith by the Park upon giving notice in writing of not less than 1 hour to the Hirer:- 11.1.1. if the Hirer commits any breach of the terms or conditions of this Agreement or in the Park’s reasonable opinion is likely to commit a breach of this Agreement; or
12.1. The Hirer shall not without the written consent of the Park assign or purport to assign this Agreement or any of his or her rights hereunder to any other party whatsoever.
13.1. This Agreement shall be construed according to the law of the State described in Item 11 the Schedule and any action by the Hirer arising therefrom shall be brought only in a court of that state.
14. Ownership of Equipment
14.1 The Hirer shall have no right, title or interest in the equipment.
15. Entire Agreement
15.1. This instrument constitutes the entire agreement between the parties on the subject matter hereof and it shall not be amended, altered or changed except by a further writing signed by the parties hereto.
16.1.1 If any provision of this Agreement is determined by a Court or arbitrator to be void or unenforceable in whole or in part, it shall not affect or impair the validity or enforcement of any other provision of this Agreement.
17.1. This Agreement may not be modified or amended except with the written consent of the parties.
Business Hours means the hours of operation of the Park’s business.
Card is the card of the Hirer which is identified at the time of signing this Agreement.
Damages means any expense, cost, penalty, liability or other financial obligation (including legal costs and excess on insurances) in respect of the loss or damage of the Equipment including the cost of repairs or where damage is irreparable, the replacement cost of the Equipment, or any claim or demand of any third party in respect of the Equipment or the loss or damage to property other than the Equipment.
The equipment means the Trike
Hire Period is the time and date that the Hirer takes possession of the Equipment until the time and date the Equipment is validly returned to the possession of the Park in accordance with clause 3.
Intoxicated means where the driver/operator is under the influence of any drug or intoxicating liquor to the extent that the person’s ability to use and control the equipment is impaired or where:-
(i) the operator’s blood alcohol level is in breach of the applicable legal limit; or (ii) the operator is found to be under the influence of any drug; or (iii) the operator fails to provide a breath, blood or other sample when lawfully required to do so by or on behalf of the police.
The Park means the Caravan Park from where the Trike was hired.
Safety Instruction Card means the instruction card provided with the equipment as to the operation of the equipment.
Schedule is a reference to Schedule A of the Equipment Hire Agreement.