Terms and Conditions - Equipment Hire Agreement (General)

These terms and conditions (Terms) are between DIGITAL BRAND BUILDERS PTY LTD trading as Aged Care & Medical (ACN 164 689 294) (we, us or our) and you, the person or entity stated in the Quote (you or your), together the Parties and each a Party. Together, these terms and conditions and the Quote (attached to these Terms or the Quote) form the entire agreement under which we will provide the Job to you (Terms). 

Disclosures: Please read these Terms carefully prior to accepting these Terms. By accepting these Terms, you agree that: 

  • you must pay a Late Fee if you do not return the Equipment by the return time agreed between the Parties.;  
  • you will be liable to pay the Cancellation Fee if you terminate these Terms prior to the expiry of the Hire Period; 
  • you may be required to pay our costs if you fail to comply with certain terms in the Terms (e.g. where we are required to recover or repossess the Equipment or we incur costs as a result of termination of these Terms); 
  • your failure to pay the Hire Fee in accordance with the Payment Terms may result in us recovering or repossessing the Equipment, charging you interest, or ceasing the supply of the Equipment); 
  • we may call upon the Bond that you provide under these Terms, to satisfy any payment of any amounts due and payable to us by you under these Terms; 
  • subject to your Consumer Law Rights, we will not refund any amounts paid by you; 
  • subject to your Consumer Law Rights, our Liability for the supply of the Equipment will be limited to, at our discretion [the resupply of the Equipment or the repayment of the Hire Fee paid by you to us]; and 
  • you indemnify us against any loss, theft or damage to Equipment when you are responsible for the risk in the Equipment, any failure to return the Equipment in its Original Condition, and all Liabilities suffered or incurred by us in repossessing or recovering the Equipment in accordance with these Terms. 

These Terms does not intend to limit your rights and remedies at law, including any of your Consumer Law Rights. 

  1. Acceptance, Term and Hire Period 

    1.1 You have requested the Equipment set out in the Quote, and you are taken to accept these Terms by the earlier of: 
       (a)  confirming that you accept these Terms via the platforms or applications through which we provide these Terms to you, including our website; or 
       (b) making part or full payment of the Bond or the Hire Fee.  

    1.2 
    These Terms will commence on the date you accept them in accordance with clause 1.1 (Commencement Date), and end on the date that the Hire Period finishes, unless otherwise terminated earlier in accordance with its terms (the Term).  

    1.3 
    Hire Period: The Hire Period will commence on the Commencement Date and continue for the period set out in the Quote (Initial Hire Term). The Hire Period will automatically renew for 4 weeks at the end of the Initial hire Term unless you have let us know in writing that you no longer need the Equipment before the end of the Initial Hire Term. 

    1.4 
    You agree to hire the Equipment for the Hire Period.  

  2.  Our obligations 

    2.1 In consideration of you paying the Hire Fee and you complying with these Terms, we agree to provide the Equipment to you for the Hire Period, and in accordance with these Terms. 

    2.2 
    We will have no obligation to supply the Equipment to you until we have received the payment of the Bond in full (if applicable).

    2.3 If these Terms (including the Quote) expresses a time within which the Equipment is to be supplied, we will use reasonable endeavours to provide the Equipment by such time, but you agree that such time is an estimate only.
     
  3. Variations  

    3.1 All variations to the Equipment to be supplied must be agreed in writing between the Parties and will be priced in accordance with any schedule of rates provided by us, or otherwise as reasonably agreed between the Parties. If we consider that any instruction or direction from you constitutes a variation to the scope of our obligations under these Terms, then we will not be obliged to comply with such instruction or direction unless agreed in accordance with this clause. 

  4. Your obligations 

    4.1 You agree to:  
       (a) 
    comply with these Terms, the Manual (if applicable), our reasonable requests or requirements (including safety procedures and policies), and all applicable laws; and 
       (b) 
    provide all assistance, information, and all things reasonably necessary to enable us to comply with our obligations under these Terms and at law. 

    4.2 
    You acknowledge and agree that if there is a discrepancy between the terms and conditions in these Terms and the Manual (if applicable), the terms and conditions of these Terms will prevail. 

  5. Payment 

    5.1 In consideration for us supplying the Equipment, you agree to pay us the Fees, and any other amount payable to us under these Terms, in accordance with the Payment Terms.  

    5.2 
    Payment Terms (Bond): We will issue an invoice to you on or before the Commencement Date. You must pay us the Bond set out in the Quote, at the times and using the payment method set out in our invoice. 

    5.3 Payment Terms (Hire Fee): We will issue an invoice to you on a periodic basis (as set out in the Quote) in arrears throughout the Hire Period. You must pay us the Hire Fee as set out in the Quote, at the times and using the payment method set out in our invoice. 

    5.4 When applicable, GST is payable on the Fees and will be clearly shown on our invoices. You agree to pay us an amount equivalent to the GST imposed on these charges. 

    5.5 A cancellation fee is due and payable by you, if you hire the Equipment and you terminate these Terms prior to the expiry of the Hire Period (Cancellation Fee). You agree that the Cancellation Fee is a genuine pre-estimate of loss, suffered or incurred by us, as a result of your termination of these Terms prior to the expiry of the Hire Period.  

    5.6 If any payment has not been made in accordance with the Payment Terms, we may (at our absolute discretion and without prejudice to any of our rights or remedies under these Terms or at law): 
       (a) 
    after a period of 5 Business Days, cease providing the Equipment and enter any premises where the Equipment is located to recover or repossess the Equipment (and you agree to provide any access, items and consents required to enable us to do so), and recover, as a debt due and immediately payable from you, our additional costs of doing so (including all recovery costs); and/or 
       (b) 
    charge interest at a rate equal to the Reserve Bank of Australia’s cash rate from time to time plus 2% per annum, calculated daily and compounding monthly, on any such amounts unpaid after the due date for payment in accordance with the Payment Terms.
     
  6. Bond 

    6.1 If applicable, we will hold the Bond throughout the Hire Period. 

    6.2 
    You acknowledge and agree that the Bond will be used as a security by us for the performance of any of your obligations, and satisfaction of any of your liabilities, under these Terms. 

    6.3 
    We may, with 5 Business Days’ written notice, call upon the Bond to satisfy payment of any amounts due and payable to us by you under these Terms. 

    6.4 
    Subject to your compliance with these Terms, we will refund you the balance (if any) of the Bond within a reasonable time after the expiry of the Hire Period. 

  7.  Collection, delivery and return of Equipment 

    7.1 
    If the Parties agree that: 
       (a) 
    you are to collect the Equipment from us, you agree to collect the Equipment from the collection location and by the collection time agreed between the Parties;  
       (b) 
    we are to deliver the Equipment to you, we agree to use our reasonable endeavours to deliver the Equipment to the delivery location by the delivery time agreed between the Parties.  

    7.2 
    You agree to return the Equipment to us/make the Equipment available for collection by us (as agreed between the Parties) in the Original Condition, at the return location and by the return time agreed between the Parties. 

    7.3 
    If the Parties agree that: 
       (a) 
    you are to return the Equipment to us at the expiry of the Hire Period, you agree that if you do not return the Equipment to the return location by the return time agreed between the Parties, we may after a grace period of two hours charge you a late fee until you have returned the Equipment to us (Late Fee); 
       (b) 
    we are to collect the Equipment from you at the expiry of the Hire Period, you agree that if we arrive at the agreed location for collection and the Equipment is not immediately available for our collection, we may charge you the Late Fee until such time as the Equipment is available for collection by us.  

    7.4 
    You agree that the Late Fee is a genuine pre-estimate of loss, suffered or incurred by us, as a result of your delay in returning the Equipment.  

    7.5 
    You agree to comply with any requirements, policies or procedures which apply at the collection location and the return location (as applicable).  

    7.6 
    As between the Parties, you agree to pay for the reasonable costs of delivery or collection of the Equipment.  

  8.  Condition of Equipment 

    8.1 You agree that you are solely responsible for determining whether the Equipment will be suitable and fit for your particular purposes. 

    8.2 
    By signing the Original Condition Report, you agree that the Equipment has been delivered in good condition, clean, free from major damage or defect, fit for purpose and in accordance with these Terms (Original Condition), unless expressly set out in the Original Condition Report, in which case the condition set out in the Original Condition Report will be deemed to be the Original Condition. 

  9.  Warranties and Representations 

    9.1 
    You represent, warrant and agree that: 
       (a) 
    all information and documentation that you provide to us in connection with these Terms is true, correct and complete; 
       (b) 
    the Equipment may only be operated by you; 
       (c) 
    you (and any other person authorised to operate the Equipment in accordance with these Terms) have all necessary qualifications and licences required by law in order for you to operate the Equipment; 
       (d) you will prevent the Equipment from being subject to any loss, theft, damage, vandalism or destruction and notify us immediately if the Equipment is stolen, lost, destroyed, damaged or involved in an Accident during the Hire Period; 
       (e) 
    you (and to the extent applicable, your Personnel) will provide us with all documentation, information, instructions, cooperate and access reasonably necessary to enable us to supply the Equipment;
       (f) you will not use the Equipment, or allow the Equipment to be used, in breach of any laws or the Manual (if applicable);  
       (g) you will keep the Equipment under your custody and control at all times, and you will not sublease, rent, sell, or otherwise transfer the Equipment to any other person; and 
       (h) you do not enter these Terms as a trustee of a trust. 

  10.  Maintenance

    10.1 During the Hire Period, in addition to and without limiting any other obligation under these Terms, you agree to: 
       (a) 
    maintain the Equipment in accordance with the Manual;
       (b) contact us immediately if there are any technical or mechanical issues with the Equipment;
       (c) protect and keep the Equipment in the Original Condition (including being in good working order and condition), subject to any fair wear or tear; and
       (d) prevent the Equipment from being subject to any loss, theft, damage, vandalism or destruction and notify us immediately if the Equipment is stolen, lost, destroyed, damaged or involved in an Accident.

  11. Servicing and Repairs

    11.1 You agree that you are responsible for the costs of any repair or replacement of the Equipment that is necessary as result of loss, theft, damage, vandalism, misuse or neglect to the Equipment during the Hire Period.  Where we undertake the repairs or replacement on your behalf, you agree to pay us the costs of the repairs or replacement, as a debt due and immediately payable.

  12.  Title and Risk

    12.1 If the Parties agree that you are to collect the Equipment from us, risk in the Equipment will pass to you when have collected the Equipment from the location agreed between the Parties.

    12.2 If the Parties agree that we are to deliver the Equipment to you, risk in the Equipment will pass to you when we have delivered the Equipment to the location agreed between the Parties.

    12.3 You agree that once you have collected the Equipment from the collection location/ the Equipment has been delivered to the delivery location (as applicable and as agreed between the Parties), you will be solely responsible for the Equipment until it is returned to us and it is in our full custody and control.

    12.4 Title in the Equipment will at all times remain with us, and you take the Equipment as a bare bailee only.

  13.  Access

    13.1 You agree to provide us (and our Personnel) with reasonable access to any premises where the Equipment is located, free from harm or risk to health or safety:
       (a) at the times and on the dates requested by us to enable us to exercise any rights we may have under these Terms; and/or 
       (b) to enable us to comply with our obligations under these Terms or at law.

  14.  Security Interest

    14.1 You acknowledge and agree that:
       (a)these Terms is a ‘security agreement’ under the Personal Property Securities Act 2009 (Cth) (PPSA);
       (b) this clause 14 creates a security interest in the Equipment, and any proceeds from any sale or disposal of the Equipment, as security for your obligations to us;
       (c) we are a secured party in relation to the Equipment and any proceeds in respect of any sale or disposal of the Equipment, and we are entitled to register our interest on the relevant register as either (at our discretion) a security interest, and if applicable, a ‘purchase money security interest’, and you must do all things necessary to assist us in effecting the registration;
       (d) you must (at your cost), where we request, take all steps that we consider necessary or desirable to ensure our security interest in the Equipment and the proceeds is enforceable, and to perfect, or better secure our position under these Terms, or ensure our priority over all other security interests.

    14.2 To the extent the law permits, you waive your right to receive any notice (including notice of a verification statement) that is required by the PPSA, including but not limited to notices under sections 157, 95, 118, 121, 130, 132 or 135. However, this does not prevent us from giving a notice under the PPSA.

    14.3 To the extent permitted by law, unless we otherwise notify you, sections 95, 96, 121(4), 125, 130, 132(3)(d), 132(4), 142 and 143 of the PPSA will not apply to enforcement of our security interest. 

    14.4 
    If there is any inconsistency between our rights under this clause 14 and your rights under Chapter 4 of the PPSA, this clause prevails. 

    14.5 
    You must not disclose any information of the kind referred to in section 275 of the PPSA, to the extent permitted under that section. 

    14.6 
    Nothing in this clause 14 is intended as an agreement to subordinate a security interest arising under these Terms and conditions in favour of any person under section 61 of the PPSA.

    14.7 In this clause 14 a ‘security interest’ includes any form or lien, encumbrance or a security interest under the PPSA. 

    14.8 
    In this clause 14 terms used in this clause but not defined have the same meaning as in the PPSA.

  15. Confidential Information

    15.1 Subject to clause 15.2, each Party must (and must ensure that its Personnel do) keep confidential, and not use or permit any unauthorised use of, confidential information provided by the other party.

    15.2 
    Clause 15.1 does not apply where the disclosure is required by law or the disclosure is to a professional adviser in order to obtain advice in relation to matters arising in connection with these Terms and provided that the disclosing party ensures the adviser complied with the terms of clause 15.1 

    15.3 
    This clause 15 will survive the termination of these Terms.

  16. Australian Consumer Law

    16.1 Certain legislation, including the Australian Consumer Law, and similar consumer protection laws and regulations, may confer you with rights, warranties, guarantees and remedies relating to the hiring out of the Equipment by us to you which cannot be excluded, restricted or modified (Consumer Law Rights). To the extent that you maintain Consumer Law Rights, nothing in these Terms excludes those Consumer Law Rights.

    16.2 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 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.

    16.3 Subject to your Consumer Law Rights, we exclude all warranties, and all material, work and services, including that the Equipment is provided to you without warranties of any kind, either express or implied, whether in statute, at law or on any other basis, except where expressly set out in these Terms.

    16.4 This clause 16 will survive the termination or expiry of these Terms.

  17.  Limitation on Liability 

    17.1 
    Despite anything to the contrary but subject to your Consumer Law Rights, to the maximum extent permitted by law: 
       (a) 
    neither Party will be liable for Consequential Loss; 
       (b) 
    a Party’s liability for any Liability under these Terms will be reduced proportionately to the extent the relevant Liability was caused or contributed to by the acts or omissions of the other Party (or any of its Personnel), including any failure by that other Party to mitigate its loss; and 
       (c) 
    in respect of any failure by us to comply with the relevant Consumer Law Rights, our Liability is limited (at our discretion) to:
            {1} replacing the Equipment or the supply of equivalent Equipment, or the payment of the cost of replacing the Equipment or of supplying equivalent Equipment; and
            {2} the repair of the Equipment, or the payment of the cost of having the Equipment repaired. 
       (d) 
    our aggregate liability for any Liability arising from or in connection with these Terms will be limited to the amount of the Fees paid by you to us in respect of the supply of the relevant Equipment to which the Liability relates.   

    17.2 
    This clause 17 will survive the termination or expiry of these Terms.

  18. Indemnity 

    18.1 To the maximum extent permitted by law, you are liable for and you and agree to indemnify us and hold us harmless in respect of any Liability which we may suffer, incur or are otherwise liable for as a result of, or in connection with: 
       (a) any property loss or damage, death or personal injury, arising from or in connection with your negligent use of the Equipment; 
       (b) any loss (including theft) of, or damage to, the Equipment when you are responsible for the risk in the Equipment in accordance with clause 12;
       (c) any failure to return the Equipment in its Original Condition; and 
       (d) 
    all Liabilities suffered or incurred by us in repossessing or recovering the Equipment in accordance with these Terms. 

    18.2 
    This clause 18 will survive the termination or expiry of these Terms.

  19.  Termination 

    19.1 
    Either Party may terminate these Terms at any time by giving 15 days’ notice in writing to the other Party.

    19.2 These Terms will terminate immediately upon written notice by a Party (Non-Defaulting Party) if the other Party (Defaulting Party) breaches a material term of these Terms and that breach has not been remedied within 10 Business Days of the Defaulting Party being notified of the breach by the Non-Defaulting Party.

    19.3 Upon expiry or termination of these Terms:
       (a) we will immediately cease supplying the Equipment to you;
       (b) without limiting your Consumer Law Rights, you agree that any payments made by you to us are not refundable to you;
       (c) you are to pay for any Fees due and payable prior to termination, and all other amounts due and payable under these Terms;
       (d) pursuant to clause 19.2 the Defaulting Party also agrees to pay the Non-Defaulting Party’s additional costs, reasonably incurred, and which arise directly from such termination (including recovery fees); and
       (e) you agree to grant us such rights of access, in accordance with clause 13.1, to any premises where the Equipment is located to allow us (or our Personnel) to immediately recover or repossess the Equipment.

    19.4 Termination of these Terms will not affect any rights or liabilities that a Party has accrued under it.

    19.5 This clause 19 will survive the termination or expiry of these Terms.


  20.   General 

    20.1 
    Amendment: Subject to clause 3, these Terms may only be amended by written instrument executed by the Parties.

    20.2 Assignment: Subject to clauses 20.3 and 20.6, a Party must not assign or deal with the whole or any part of its rights or obligations under these Terms without the prior written consent of the other Party (such consent is not to be unreasonably withheld).

    20.3 Assignment of Debt: You agree that we may assign or transfer any debt owed by you to us, arising under or in connection with these Terms, to a debt collector, debt collection agency, or other third party.

    20.4 Disputes: A Party may not commence court proceedings relating to any dispute arising from, or in connection with, these Terms (Dispute) without first meeting a representative of the other Party within 10 Business Days of notifying that other Party of the Dispute. If the Parties cannot resolve the Dispute at that meeting, either Party may refer the Dispute to mediation administered by the Australian Disputes Centre.

    20.5 
    Force Majeure: Neither Party will be liable for any delay or failure to perform their respective obligations under these Terms if such delay or failure is caused or contributed to by a Force Majeure Event, provided that the Party seeking to rely on the benefit of this clause:
       (a) as soon as reasonably practical, notifies the other party in writing details of the Force Majeure Event, and the extent to which it is unable to perform its obligations; and
       (b) uses reasonable endeavours to minimise the duration and adverse consequences of the Force Majeure Event.

    Where the Force Majeure Event prevents a Party from performing a material obligation under these Terms for a period in excess of 60 days, then the other Party may by notice terminate these Terms, which will be effective immediately, unless otherwise stated in the notice. This clause will not apply to a Party’s obligation to pay any amount that is due and payable to the other Party under these Terms.

    20.6 Subcontracting: We may subcontract the provision of any part of the Services without your prior written consent.  We agree that any subcontracting does not discharge us from any liability under these Terms and that we are liable for the acts and omissions of our subcontractor.

    20.7 Governing law: These Terms is governed by the laws of Victoria. Each Party irrevocably and unconditionally submits to the exclusive jurisdiction of the courts operating in Victoria and any courts entitled to hear appeals from those courts and waives any right to object to proceedings being brought in those courts.

    20.8 Notices: Any notice given under these Terms must be in writing addressed to the addresses set out in these Terms, or the relevant address last notified by the recipient to the Parties in accordance with this clause. Any notice may be sent by standard post or email, and will be deemed to have been served on the expiry of 48 hours in the case of post, or at the time of transmission in the case of transmission by email.

    20.9 Relationship of Parties: These Terms is not intended to create a partnership, joint venture, employment or agency relationship between the Parties.

  21.   Definitions 

    In these Terms, unless the context otherwise requires, capitalised terms have the meanings given to them below:

    Accident
    means any incident or occurrence that results in the Equipment being damaged, lost or destroyed or any other vehicle, property, thing, animal or person being injured, killed, damaged, lost or destroyed (as applicable). 

    ACL or Australian Consumer Law means the Australian consumer laws set out in Schedule 2 of the Competition and Consumer Act 2010 (Cth), as amended, from time to time.

    Bond means the fee payable to us by you for the purposes set out in these Terms. 

    Business Days means a day on which banks are open for general banking business in Victoria, excluding Saturdays, Sundays and public holidays. 

    Commencement Date means the date these Terms is accepted in accordance with its terms. 

    Consequential Loss includes any consequential loss, special or indirect loss, real or anticipated loss of profit, loss of benefit, loss of revenue, loss of business, loss of goodwill, loss of opportunity, loss of savings, loss of reputation, loss of use and/or loss or corruption of data, whether under statute, contract, equity, tort (including negligence), indemnity or otherwise. However, your obligation to pay us the Price will not constitute “Consequential Loss”.  

    Consumer Law Rights has the meaning given in clause 16.1. 

    Dispute has the meaning given in clause 20.4. 

    Equipment means the equipment, any accessories and parts the subject of these Terms, as particularised in the Schedule. 

    Force Majeure Event means any event or circumstance which is beyond a Party’s reasonable control including but not limited to, acts of God including fire, hurricane, typhoon, earthquake, landslide, tsunami, mudslide or other catastrophic natural disaster, civil riot, civil rebellion, revolution, terrorism, insurrection, militarily usurped power, act of sabotage, act of a public enemy, war (whether declared or not) or other like hostilities, ionising radiation, contamination by radioactivity, nuclear, chemical or biological contamination, any widespread illness, quarantine or government sanctioned ordinance or shutdown, pandemic (including COVID-19 and any variations or mutations to this disease or illness) or epidemic. 

    Hire Fee means the price set out in the Quote, as adjusted in accordance with these Terms.  

    Liability means any expense, cost, liability, loss, damage, claim, notice, entitlement, investigation, demand, proceeding or judgment (whether under statute, contract, equity, tort (including negligence), indemnity or otherwise), howsoever arising, whether direct or indirect and/or whether present, unascertained, future or contingent and whether involving a third party or a Party to these Terms or otherwise. 

    Manual means any manual, provided by us to you, as to the operation, use, restrictions, guidelines or safety instructions for the Equipment where applicable. 

    Original Condition has the meaning given in clause 8. 

    Original Condition Report means the report detailing the condition of the Equipment. 

    Personnel means, in respect of a Party, any of its employees, consultants, suppliers, subcontractors or agents. 

    Quote means the quote (including any online quote) which we provide to you in connection with these Terms or the Jobs.