Terms and Conditions
Shades of White by Rachelle (ABN 217 16470451) (SOW)
Terms and Conditions – Hire of Goods
1. Definitions and interpretation
Booking means a booking for the hiring of Goods placed by a Client in response to a Quote or other offer by SOW to hire Goods.
Costs includes charges and expenses, and costs, charges and expenses in connection with legal and other advisers.
Client means the person identified in a Quote or, if there is no Quote, the person seeking to hire Goods from SOW.
Deposit means the amount to be paid by the Client to SOW being 50% of the Hire Fee or such other amount nominated by SOW in writing to the Client or as otherwise agreed in writing by the parties.
Event Date means the date or dates for which the Goods will be hired by the Client as set out in the Quote or as otherwise set out in writing by SOW.
Goods means the goods and other property listed in the Quote to be hired to the Client.
GST means any goods and services tax imposed in Australia.
Hire Fee means the amount to be paid by the Client to hire the Goods as set out in the Quote or as otherwise agreed in writing by the parties.
Laws means common law, equity, legislation, regulations, statutory instruments, guidelines, codes, standards and policies of the Commonwealth of Australia or any State, Territory or local government.
Loss means any and all losses, including interest, Costs, fees, damages, liabilities, judgments, penalties, agency fees, field calls, repossession costs, shortfall on sale of goods after repossession, legal costs and expenses and consequential losses.
Quote means a written description of the Goods to be hired to the Client and SOW’S fees, charges and expenses for the hire of the Goods.
Rental Ready Condition means the Goods have been operated and maintained within all specifications and tolerances, have been tested to confirm the Goods are operationally safe and ready to use; are in a clean and presentable condition; and are immediately able to be hired out to a third party user without the need to prepare the Goods in any way.
SOW means Shades of White by Rachelle (ABN 217 16470451) and if the context so requires includes its officers, employees, agents, successors and assigns.
Terms means these terms and conditions.
In these Terms unless the context otherwise requires:
- a reference to writing includes email and communication through the SOW website;
- the singular includes the plural and vice versa;
- a reference to a clause or paragraph is a reference to a clause or paragraph of these Terms;
- a reference to a party to these Terms or a Quote includes that party’s agents, executors, administrators, successors and permitted assigns;
- where an expression is defined, another part of speech or grammatical form of that expression has a corresponding meaning;
- headings are for ease of reference only and do not affect the meaning or interpretation of these Terms; and
- if the date on which any act, matter or thing is to be done falls on a day which is not a business day (a business day being a day that is not a Saturday, Sunday or public holiday in Sydney, New South Wales), that act, matter or thing:
- if it involves a payment other than a payment which is due on demand must be done on the preceding business day; and
- in all other cases, must be done on the next business day.
These Terms apply to all hiring of Goods by the Client from SOW. The variation or waiver of a provision of these Terms or a departure from a provision is ineffective unless agreed in writing and signed by SOW.
- Quote and Booking
- A Quote provided to the Client is valid for 7 days from the date of issue (unless varied, amended or withdrawn by SOW).
- To accept the Quote and make a Booking, the client must reply to the SOW email or other communications by SOW with acceptance where and how indicated, including paying the Deposit required by Making a Booking and paying the Deposit constitutes acceptance of these Terms and Conditions. For the avoidance of doubt, a Booking will not be deemed to have been made until after payment of the Deposit to SOW by the Client.
- SOW may in its absolute discretion and without any remedy to the Client refuse to hire the Goods to the Client, if the Client fails to pay the balance of the Hire Fee on time. In these circumstances SOW will retain the Deposit and the Client will have no right to any refund of the Deposit paid to
- The Client has no right to any refund of the Hire Fee or Deposit paid to SOW after a Booking has been made.
- Ownership and interest
- The Goods always remains the property of SOW. The Client only has a right to use the Goods in accordance with these Terms.
- The Client must not alter or in any way change the Goods.
- SOW may transfer (or assign) the Goods or its interest in or rights under these Terms or otherwise relating to the Goods, or give another person an interest in or form of security over any of them, without obtaining the Client’s consent.
- The Client must not part with exclusive possession of the Goods without SOW’s prior written consent. SOW consent does not affect or derogate from any of the Client’s other obligations under these Terms.
- SOW will be taken to have delivered the Goods to the Client and the Client will be taken to have accepted the Goods when the Goods are delivered to the Client or the Goods are made available for collection by the Client, whichever is the earliest to occur.
- SOW is entitled to charge a delivery fee, if the Goods are delivered by SOW to the Client. The delivery fee will be stated in the Quote or other communications from SOW.
- Event Date and payment
- The Client must use the Goods on the Event Date in accordance with these Terms.
- The Client must pay any invoice issued by SOW in accordance with the terms of the invoice and in any event the Hire Fee (less the Deposit) must be paid in full at least 30 days before the Event Date.
- SOW will accept payment by electronic funds transfer without imposing a surcharge.
- SOW requires payment of the Deposit to confirm the Booking with the balance payable of the Hire Fee in full at least 30 days before the Event Date. If the Client fails to pay the balance of the Hire Fee on time then SOW will retain the Deposit and the Client will have no right to any refund of the Deposit paid to
- SOW reserves the right to require the Client to pay a further amount as security for the Goods, which amount will be repaid to the Client in full once the Goods have been returned to SOW in Rental Ready Condition.
- In addition to the Hire Fee, the Client must pay the damage waiver fee, being the amount outlined in the Quotation (if any). Payment of the damage waiver fee does not affect any of the Client’s obligations under these Terms.
The Client must use the Goods only for the purpose for which they are designed and must ensure that the Goods are used in accordance with any instructions provided with the Goods and in compliance with all Laws that apply to the Goods or their use. The Client must take proper care of the Goods and keep the Goods in good working order and in good repair. The Client must only use the Goods at the location notified to SOW in writing and approved by SOW.
- Loss or damage
The Client must take all steps to protect the Goods from theft, loss, damage and destruction and not do anything that might diminish the value of the Goods. The Client must immediately tell SOW if any of the Goods are stolen, lost, destroyed or damaged.
- No deductions from payments
The Client must not withhold any payment due to SOW, or make a deduction from it for any reason including but not limited to because the Goods are damaged, do not operate, or are not in the Client’s possession or the Client claims to have a set-off, counterclaim, or other right against SOW or any other person.
- Other costs
The Client must pay to SOW:
- all Costs incurred by or on behalf of SOW in enforcing SOW’S rights under these Terms after the Client is in default (including, where applicable, preserving and maintaining the Goods); and
- all Costs incurred by or on behalf SOW in exercising any rights under these Terms.
- Exclusions and limitation of liability
- The Client acknowledges that hiring of the Goods is at the Client’s sole risk.
- The Client is solely responsible for ensuring the Goods are installed and erected safely and in accordance with instructions and that the location the Goods are erected is appropriate for the Goods and safe.
- To the full extent permitted by Law, SOW’S liability for breach of any term implied into these Terms by any Law is excluded.
- All information, specifications and samples provided by SOW in relation to the Goods are approximations only. Any variations will not entitle the Client to make any claim in respect of them.
- Any advice, recommendation, information, assistance or service given by SOW in relation to the Goods is believed to be accurate, appropriate and reliable at the time given, but is provided without any warranty of accuracy, appropriateness or reliability. SOW has no liability or responsibility for any Loss suffered as a result of the Client’s reliance on such advice, recommendation, information, assistance or service.
- All of SOW’S employees, agents and subcontractors have the benefit of these Terms (including but are limited to any indemnities and any exclusions or limitations of liability which operate for the benefit of SOW) to the same extent as SOW and as if they were parties to a contract for the hiring of the Goods.
- SOW excludes from a contract for the hiring of Goods all conditions, warranties, terms and consumer guarantees implied by Laws or custom except any the exclusion of which would contravene any Laws or cause this condition to be void or unenforceable (“Non-Excludable Term”).
- SOW is not obliged to pay for and is hereby released from all liability to the Client or any other person for any Loss, delay or failure by SOW to provide the Goods, and whether arising because of breach of contract, bailment, tort including negligence, SOW’S wilful act or omission, breach of Laws or otherwise.
- SOW’S liability to the Client for any breach of a Non-Excludable Term is limited, at SOW option, to the hiring of the Goods or substantially equivalent goods again or payment of the cost of hiring the Goods or substantially equivalent goods again.
- SOW is not obliged to pay for and is released from all liability to the Client or any other person for, any indirect, economic, special or consequential loss or damage including but not limited to loss of revenue, profit, production, business, anticipated savings or claims by the Client even if SOW knows, or ought to have known, that the loss or damage is possible or otherwise foreseeable.
- These Terms apply even in circumstances arising from a fundamental breach of a contract for the hiring of Goods or breach of a fundamental or essential term of such a contract.
- If, despite the other provisions of this clause, SOW is liable to the Client for any loss of damage suffered (“Claim”), the Client cannot recover that loss or damage from SOW unless the Client gives written notice of the Client’s Claim to SOW at SOW’S office within 7 days of the last date of the Event Date. The Client must not commence legal proceedings of any nature against SOW more than 12 months after giving notice of a Claim to SOW and agrees not to do so.
- No part of this clause limited the operation of any other part of this clause or any other provision of these Terms which operates for the benefit of SOW.
- The Client agrees to indemnify and pay on demand to SOW the amount of any Loss arising from or in connection with the hiring out of the Goods by SOW or these Terms.
- This indemnity continues after the contract for the hire of Goods ends or is terminated. It is not necessary for SOW to incur expense or make a payment before enforcing a right of indemnity.
- Force majeure
- If circumstances beyond the control of SOW hinder or prevent the provision of Services, SOW is hereby relieved from any obligation to provide the Services while those circumstances continue. SOW may elect to terminate a Booking or suspend a Booking until such circumstances have ceased.
- Circumstances beyond the control of SOW include, but are not limited to, unavailability of materials or components, strikes, lockouts, riots, natural disasters, fire, war, acts of God, Government decrees, proclamations or orders, transport difficulties and failures or malfunctions of computers or other information technology systems.
- Extension of Term, Holding Over and Return of Goods
- The Client must return the Goods on or before the last date of the Event Date, unless SOW grants an extension to that date in writing.
- If the Client does not return the Goods when required, then, without limiting any other obligations or rights under these Terms, the Client must in respect of the period from the day on which the Goods were required to be returned until the day on which the Goods are returned, pay to SOW an additional rental amount calculated by reference to the Hire Fee. Payment of the additional rental amount under this clause does not:
- give the Client any right to keep the Goods after the end of the Event Date;
- release the Client from its obligations to return the Goods; or
- prevent SOW from taking possession of the Goods.
- Return Conditions
- The Goods must be returned in Rental Ready Condition (fair wear and tear excepted) to a place nominated by SOW.
- If the Goods are not returned in Rental Ready Condition, without limiting any other rights or remedies which SOW may have, the Client must pay SOW either:
- an amount equal to the replacement value of the Goods; or
- the cost of returning the Goods to Rental Ready Condition,
whichever is less, plus an additional rental amount (calculated by reference to the Hire Fee) which would have been payable had the Event Date been extended up to the date on which the Client pays the amount referred to in (i) above or the date the Goods are brought back to Rental Ready Condition (as the case may be).
- The amount referred to in clause 15(b) will be charged by SOW to the Client by way of an invoice. Full payment of this invoice is due within 7 days from the date of the invoice.
- Each of the following constitutes an event of default:
- the Client breaches any of these Terms;
- the Client, being a natural person, commits an act of bankruptcy;
- the Client, being a corporation:
- is subject to an application being presented, an order being made or a meeting being called to consider a resolution for the Client to be wound up, deregistered or dissolved;
- is subject to a receiver, receiver and manager or an administrator under Part 5.3A of the Corporations Act 2001 being appointed to all or any part of the Client’s property and undertaking;
- enters into a scheme of arrangement (other than for the purpose of restructuring); or
- makes an assignment for the benefit of its creditors;
- the Client purports to assign its rights under these Terms without the prior written consent of SOW; or
- the Client ceases or threatens to cease conduct of its business.
- Where an event of default occurs, SOW may do one or more of the following:
- terminate the Booking;
- refuse to hire Goods to the Client;
- issue and maintain legal proceedings against the Client seeking an order for damages and other orders for any amounts owed;
- retain all money paid on account of the hire of Goods; and
- take possession of the Goods.
- In addition to any action permitted to be taken by SOW under this clause, on the occurrence of an event of default any amounts owing to SOW and all invoices issued will become immediately due and payable.
- If SOW gives the Client notice of termination, the Client must immediately return the Goods to SOW.
- The Goods
- The Client warrants, acknowledges and agrees that:
- the Client is responsible for examining the Goods before accepting them and the Client must satisfy themselves about the Goods, including compliance with description and their condition, appearance, finish, lack of defects, safety, durability, suitability and fitness for the Client’s purposes;
- except to the extent required by Law, SOW has not made any representation, warranty or undertaking about the appearance, finish, lack of defects, safety, durability, condition or quality of the Goods, their suitability or fitness for the Client’s purposes; and
- the Client is responsible for obtaining and maintaining any necessary permit, licence or registration required by Law in connection with use of the Goods.
- Exclusion of Laws
Any present or future Law that varies the Client’s obligations under these Terms is excluded to the extent allowed by Law if it affects SOW’S rights or remedies adversely.
- These Terms are governed by the laws of New South Wales, and each party irrevocably submits to the non-exclusive jurisdiction of the courts of New South Wales.
- These Terms, Quotes and any written variations agreed to in writing by SOW comprise the whole agreement between the parties.
- These Terms and the Quote supersede all oral and written negotiations and communications by and on behalf of either of the parties.
- In entering into these Terms, the Client has not relied on any warranty, representation or statement, whether oral or written, made by SOW or any of its officers, employees or agents relating to or in connection with the subject matter of these Terms.
- If a provision of these Terms is or becomes void, voidable or unenforceable at any time, the remaining provisions will continue to have full force and effect.
- A notice or other communication required or permitted to be given by one party to another must be made in writing to the address shown on a Quote and delivered personally, sent by pre-paid mail or sent by email to the address of the addressee specified in the Quote.
- A notice or other document is taken to be validly served:
- on the date the recipient receives it if the notice or other document is given personally;
- on the date it would be delivered by post in the ordinary course if the notice or document is sent by post; or
- on the date the recipient’s email server receives the email without the sender receiving an error or “out of office” report.
- A party may only change its postal or email address for service by giving notice of that change in writing to the other party.
- A certificate purporting to be signed by SOW or any director, secretary or employee of SOW as to:
- an amount owing to SOW;
- whether and when a default under these Terms has occurred or continued;
- any matter related to or connected with the establishment or enforcement of any right or remedy of SOW, is evidence of the facts stated in the certificate until it is demonstrated to be incorrect.