These terms of hire together with any Hire Schedule provided by the Owner to the Hirer, whether signed or not, set out the terms of the hire agreement (the “Hire Agreement”) between the Owner and Hirer. The provision or acceptance of a Hire Schedule shall not form a separate agreement between the Owner and Hirer but shall constitute part of this Hire Agreement.
In this agreement:
‘Owner’ means Kristen Petrovski trading as The Higher Boutique and its substitutes, successors and permitted assigns and its licensees, franchisees and/or agents.
‘Hirer’ means the person named as the Hirer in the Hire Schedule who signs or otherwise accepts this agreement personally or by an authorised agent.
‘Goods’ means each and every item described in the Hire Schedule and any replacement for those items.
‘Hire period’ means the period beginning on the Pickup date and ending when the Goods are returned by the Hirer to the Owner or its authorised agent.
‘Hire charge’ means the amount shown in the Hire Schedule payable by the Hirer to hire the Goods including standard dry cleaning costs together with any applicable GST.
‘Hire Schedule’ means the document entitled ‘Hire Schedule’ which the Owner may require the Hirer to sign or accept which outlines information including, but not limited to, the Goods hired, Hire charge, Pickup date and Return date.
‘GST’ has the same meaning as in the A New Tax System (Goods and Services Tax) Act 1999 (Cth).
‘Pickup date’ the date set out in the Hire Schedule as the date on which the Hirer will take possession of the Goods.
‘Retail value’ the retail value of the Goods as reasonably determined by the Owner.
‘Return date’ the date set out in the Hire Schedule as the date on which the Hirer must redeliver the Goods to the Owner or its authorised agent.
HIRE OF GOODS
- The Owner agrees to rent the Goods to the Hirer for the Hire period and the Hirer agrees to take the Goods on hire and pay the Hire charge for that period on the terms and conditions set out in this agreement.
- The Hirer is entitled to use the Goods for the Hire period.
- The Hirer agrees to return the Goods to the Owner by delivering the Goods to its authorised agent Petal Fresh Dry Cleaners currently operating from premises at Shop 1, 225 Main St Osborne Park by no later than 12.00pm on the Return date.
PAYMENT FOR HIRE
- For all bookings (instore and online), the Hirer agrees to pay the Owner the Hire charge to secure the hire of the Goods.
- The Hire charge is payable at the time of booking the Goods.
- In addition to the Hire charge, the Hirer also agrees to pay a late return fee of $30 if the Goods are not returned to the Owner in accordance with clause 3 and a further $30 for each subsequent day, up to a maximum of 7 days, after the Return date that the Hirer fails to return the Goods to the Owner.
- If the Goods are lost or not returned to the Owner within 7 days after the Return date, in which case the late return will be considered a non-return, the Owner reserves the right to charge the Hirer an amount equivalent to the Retail value of the Good lost or not returned.
- If the Hirer returns the Goods damaged beyond normal wear and tear, the Hirer agrees to pay to the Owner the price the Owner will incur or has incurred to repair or replace the Goods, as determined in the Owner’s discretion, up to the Retail value of the Goods. Normal wear and tear encompasses minor stains, stuck zippers or other very minor damage.
- The Owner may charge the Hirer any costs and expenses (including any commission payable to any commercial or mercantile agents and legal costs) incurred by the Owner in recovering any amount payable under this Hire Agreement.
- The Hirer authorises the Owner to charge any amounts payable pursuant to this Hire Agreement to any credit card account that the Owner has received the details for from the Hirer.
- The Hirer warrants that:
- the particulars on the Hire Schedule are correct in every respect and are not misleading in anyway including, without limitation, by omission;
- in selecting the Goods, the Hirer has not relied on the Owner’s skill and judgment or on any representations made by or on behalf of the Owner; and
- the Hirer has satisfied itself that the Goods comply with their description, are in merchantable condition and are fit for the Hirer’s purpose.
- The Hirer must:
- deliver the Goods to the Owner when due back;
- return the Goods to the Owner clean and in good repair;
- only use the Goods as they would be used by a careful and prudent owner;
- before taking possession of the Goods, satisfies themselves as to the suitability and condition of the Goods;
- ensure that the Goods are used only for the purpose for which they were designed by the manufacturer and in accordance with the manufacturer’s and Owner’s instructions/directions;
- store the Goods safely and securely;
- not use the Goods for any illegal purpose;
- not allow nor authorise any other person or entity to use, re-hire or have possession of the Goods at any time, unless expressly agreed by the Owner in writing;
- notify the Owner within 24 hours after the Pickup date, if the Hirer finds that the Goods are broken, damaged and/or defective. The Owner will assume if not notified within this time that the Goods collected or received were in good order and condition.
CANCELLATION & CHANGE OF MIND
- The Hirer may at any time cancel a booking and/or Hire Agreement by giving written or verbal notice to the Owner.
- The Hirer agrees to forfeit the Hire charge in the event the Hirer cancels a booking and/or the Hire Agreement.
- No refund will be given if the Hirer changes their mind about the Goods to be hired.
No agreement or understanding varying or extending the Hire Agreement shall be legally binding on either party unless varied in writing.
EXCLUSION OF LIABILITY & INDEMNITIES
- Subject to clause 9.3, and except as expressly provided to the contrary in this Hire Agreement, all guarantees, terms, conditions, warranties, undertakings, inducements or representations whether express or implied, statutory or otherwise, relating to this Hire Agreement or its subject matter are excluded to the maximum extent permitted by law.
- Nothing in this Hire Agreement excludes, restricts or modifies any right or remedy, or any guarantee, term, condition, warranty, undertaking, inducement or representation, implied or imposed by any legislation which cannot lawfully be excluded or limited. This may include the Australian Consumer Law which contains guarantees that protect the purchasers of goods and services.
- Where the Owner is not able to exclude a guarantee, term, condition, warranty, undertaking, inducement or representation imposed by legislation in relation to this Hire Agreement (‘Non-Excludable Provision’) and the Owner is able to limit the Hirer’s remedy for a breach of the Non-Excludable Provision, then the Owner’s liability for breach of the Non-Excludable Provision is limited to (at the Owner’s election)
- in the case of goods, the repair or replacement of the goods or the supply of substitute goods (or the cost of doing so); or
- in the case of services, the supplying of the services again, or the payment of the cost of having the services supplied again.
- Subject to the Owner’s obligations under the Non-Excludable Provisions and to the maximum extent permitted by law, the Owner’s maximum aggregate liability for all claims under or relating to this Hire Agreement or its subject matter, whether in contract, tort (including without limitation negligence), in equity, under statute, under an indemnity, based on fundamental breach or breach of a fundamental term or on any other basis, is limited to an amount equal to the fees paid by the Hirer under this Hire Agreement. In calculating the Owner’s aggregate liability under this clause, the parties must include any amounts paid or the value of any goods or services replaced, repaired or supplied by the Owner for a breach of any Non-Excludable Provisions.
- Subject to clauses 9.3 and 9.4, the Owner will not be liable to the Hirer for any consequential, indirect or special loss or damage, loss of actual or anticipated profits or revenue, loss of business, business interruption, wasted costs the Hirer has incurred, amounts that the Hirer is liable for or any loss suffered by third parties under or relating to this Hire Agreement or its subject matter, whether in contract, tort (including without limitation negligence), in equity, under statute, under an indemnity, whether or not such loss or damage was foreseeable and even if advised of the possibility of the loss or damage.
- The Hirer is liable for and indemnifies the Owner against all liability, claims, damage, loss, costs and expenses (including, without limitation, legal fees, costs and disbursements on a full indemnity basis, whether incurred or awarded against the Owner) in respect of: (a) personal injury; (b) damage to property; or (c) a claim by a third party, in respect of the Hirer’s hire or use of the Goods or the Hirer’s breach of the Hire Agreement. The Hirer’s liability under this indemnity is diminished to the extent that the Owner’s breach of the Hire Agreement or negligence causes the liability, claims, damage, loss, costs or expenses.
- Each indemnity in this Hire Agreement is a continuing obligation, separate and independent from the other obligations of the parties and survives termination, completion and expiration of this Hire Agreement. It is not necessary for a party to incur expense or make any payment before enforcing a right of indemnity conferred by this Hire Agreement.
TITLE TO GOODS
- The Hirer acknowledges that the Owner retains title to the Goods and that the Hirer’s rights to use the Goods are as a bailee only.
- The Hirer does not have any right to pledge the Owner’s credit in connection with the Goods and agrees not to do so.
- The Hirer also agrees not to agree, attempt, offer or purport to sell, assign, sub-let, lend, pledge, mortgage let on hire or otherwise part with or attempt to part with the personal possession of or otherwise deal with the Goods and not to conceal or alter the Goods or make any addition or alteration to, or repair of, the Goods without the prior written consent of the Owner.
No delay by the Owner in exercising any right or power will operate as a waiver of that right or power. Nor will any single or partial exercise of any right or power preclude any other or further exercise of that right or power.
If any part of this Hire Agreement becomes void or unenforceable for any reason, then that part will be severed with the intent that all remaining parts will continue to be in full force and effect and be unaffected by the severance of any other parts.
This agreement will be governed by the law of Western Australia and the parties submit to the exclusive jurisdiction of the courts of Western Australia in respect of any proceedings in connection with this Hire Agreement.