1.1. For the purpose of this agreement, and unless stated otherwise,
(a) “The Company” shall mean Melbourne Boat Hire PTY LTD (ACN 615 588 460 ) trading as Melbourne Boat Hire, any related corporations of it providing goods or services to the Hirer and any person acting with due authority of the Company.
(b) “Hirer” shall mean the person or persons named in the documentation for this agreement as the Hirer and any person signing or initialling this agreement (other than on behalf of the Company).
(c) “Price” shall mean the cost of the rental as agreed between the Company and the Hirer subject to the other terms of this agreement.
(d) “Services” shall mean all Services supplied by the Company to the Hirer.
(e) A reference to a Boat includes:-
(i) the Boat;
(ii) a reference to multiple Boats and other similar or related equipment;
(iii) a reference to a proposed Boat which has been booked or provided (even in the absence of a signed agreement);
(f) No rule of construction applies to the disadvantage of the party preparing the document on the basis that it put forward this document or any part of it.
(g) Time is of the essence except where specific provision is made or the contrary intention appears.
(h) A reference to a person includes the person’s heirs, executors, administrators, successors, substitutes and assigns and this document is intended to be binding upon such persons.
(i) The singular includes the plural and vice versa and words importing a gender include other genders.
(j) Other grammatical forms of defined words and expressions have corresponding meanings.
(k) An agreement, covenant, representation, warranty or indemnity in favour of two or more persons is for the benefit of them jointly and severally.
(l) An agreement, covenant, representation, warranty or indemnity made by two or more persons is made by them jointly and severally
(m) Headings are for ease of reference only and do not affect the construction of this agreement.
(n) The terms appearing on the company’s document entitled “Boat Hire Agreement” apply and supersede the terms herein to the extent of any inconsistency.
(o) Where the context admits, the provisions of this document extend beyond any termination.
TERMS OF AGREEMENT
1) Any further performance of this agreement after receipt of these terms and any subsequent or other offers or agreements between the Renter and the Company for the supply of a Boat or equipment, shall be on the terms and conditions contained herein unless otherwise agreed (including any terms on any part of this agreement entitled “Boat Hire Agreement”).
2) Where the Hirer constitutes more than one person, the Hirer shall be jointly and severally liable for all amounts payable by the Hirer to the Company in connection with this agreement.
3) The terms of this Agreement may not be altered except in writing. The Hirer acknowledges that the Company’s personnel and agents are not authorised to vary this agreement except in writing.
4) Any variation to this agreement extending the period of the rental shall, unless otherwise agreed, be on the basis of the Company’s prevailing hourly rates applicable for the rental as at the date of variation.
5) Except where required by mandatory operation of law, the Company shall not be liable to the Renter or any other person for any personal injury, indirect, special or consequential loss or damage (including without limitation loss of profits, loss of opportunity or business interruption) suffered by the Renter or any other person howsoever caused (including by negligence where allowed by law) by the Boat or the use thereof or any delay or non-performance and the Renter does hereby waive and release the Company from any action, claim, loss or right which the Renter may now or in the future have against the Company or its officers, agents, contractors and employees arising in connection with the Boat in any way whatsoever.
1) To the extent permitted by law, the Hirer hereby indemnifies the Company against all losses and expenses which Company or its officers, contractors, employees or agents may suffer or incur (including dishonour fees, debt collection costs and legal costs on an indemnity basis) due to the failure of the Hirer to fully observe its obligations under this agreement, or any other wilful or neglectful conduct by any person not directly connected with the Company in connection with the Boat.
FEES AND PRICES
2) The Hirer agrees to pay the hire fee to the Company immediately before the hire of the Boat or as otherwise demanded or required by the Company.
3) The Hirer agrees to a pay a security deposit of $500 which will be returned upon after the boat hire only if the boat is returned as per the hire agreement. The security deposit does not include any damages and is purely for incidents like cleaning fee or return late fee.
4) The Price will be determined by the Company’s prevailing price list at the time of this agreement.
5) Any quotation provided by the Company shall be valid for a period of 28 days only.
6) All products and services are sold subject to goods & services tax (GST) unless the products or services are classified as GST exempt.
7) A security deposit, may, in the Company’s discretion, be required before the commencement of the hire of the Boat, and will be specified on the front page of this agreement or by the Company through another means.
8) Payment will be made by such reasonable means as the Company may require.
9) Gift cards valid for 365 days from date of purchase and not redeemable for cash.
DELIVERY AND CONDITION OF THE BOAT
10) The Hirer must inspect the Boat upon receipt and delivery and notify the Company immediately of any concern the Hirer has about the Boat. The Hirer must notify to the Company any issue identified during the course of the hire as soon as practicable after it is identified.
11) If the Hirer fails to inspect or notify the Company of any issue with the Boat when provided by the Company then in the absence of clear contrary evidence the Boat shall be deemed to be in good condition when so provided by the Company.
12) If through no fault of the Hirer a material fault is identified in the Boat, then provided that the Hirer has complied with this agreement the Company shall repair the Boat, replace the Boat, or refund the balance of the rental fee (at the Company’s sole discretion) (“the warranty”).
13) The warranty shall not be applicable in a situation where:
The Hirer has failed to follow instructions supplied by the Company in relation to proper use of the Boat;
The Boat or any Services have been used in a manner other than for their intended purpose;
The Hirer wilfully or recklessly causes damage or fails to maintain the Boat;
The Hirer continues to use the Boat after any issue with the Boat is identified, or would have been apparent to an ordinary person licensed or qualified for the use of that equipment;
Any alteration is made to the Boat without the Company’s knowledge and consent; or,
The fault has occurred as a result of circumstances outside the control of the Company.
13) The Company shall not be liable for any losses caused by any delay in repairing or replacing the Boat.
14) If the Boat is damaged whilst on hire, the Hirer is responsible for all costs to repair damages.
15) At the Company’s sole discretion, the Hirer may request a cancellation of the booking or rental of the Boat by giving written notice to the Company not less than 7 days prior to the booking date. Failure to provide such notice will result in the Renter forfeiting any booking fee to the Company even if the Company accepts the cancellation.
16) The Hirer acknowledges that they hire the Boat relying solely upon their own skill and judgment and not upon any representations or statements by the Company (including of a broad or general nature).
17) The Company may cancel delivery of the Boat Services at any time before delivery by giving notice to the Hirer.
18) The Company shall not be liable for any direct, indirect, special, or consequential loss or damage whatsoever arising from such cancellation by the Company.
RETENTION OF TITLE
19) The Company retains complete ownership and title in the Boat being hired at all times.
20) The Hirer grants to the Company a general power of attorney granting the Company and its officers, employees and agents a right of entry to the Hirer’s vehicles, trailers or premises (including any vehicles, trailers or premises leased or licenced by the Hirer) should the Hirer fail to return the Boat to the Company upon such notice, for the purpose of taking possession of the Boat.
21) The Hirer shall reimburse the Company for all costs and expenses associated with the Company’s actions under this clause.
22) The Hirer shall do all things necessary to ensure that, where the Personal Properties Securities Act applies, the Company obtains and maintains a perfected security interest in the Boat.
23) The Hirer may not sub-lease or sub-licence or otherwise encumber the Boat in any manner whatsoever.
24) Without limitation to the other rights of the Company, the Hirer shall be responsible for reimbursing the Company for any insurance excess which may apply in the event that Hirer breaches this agreement and an insurance claim is made by the Company.
25) The Company is under no obligation to the Hirer to maintain any insurance over the Boat. In certain situations, insurance obtained shall not be available to the Company, in which case the Hirer shall remain liable for any loss arising in connection with the Boat.
LIMITAION OF LIABILITY
26) If permitted by law, the liability of the Company to the Hirer in connection with this agreement shall be limited to the amount paid by the Hirer to the Company pursuant to this agreement or the cost of providing the Boat/Services again (at the election of the Company).
27) The Renter acknowledges that the information provided by the Renter to the Company may be supplied to a credit reporting or debt collection agency in the event that the Hirer fails to make payment as required under this agreement and may be supplied to other persons in order to give effect to the terms of this agreement.
28) The Renter agrees that the Renter’s personal information may be used and retained by the Company for the following purposes and as required by law from time to time:
Provision of the Boat/Services.
Marketing of Boat/Services by the Company, its agents, distributors, or contractors, including by electronic message.
The Collection of monies owed to the Company.
29) If any provision of this agreement would, but for this clause, be contrary to any laws, including any conditions, warranties, rights or remedies which the Renter may have pursuant to the Competition and Consumer Act or otherwise then that clause is to be severed from this agreement and treated as void, but so that the remaining provisions shall not be affected in any way whatsoever.
30) The Company may assign or sub-contract the whole or any part of this agreement without the Renter’s consent.
31) The Company shall not be liable for any breach of any provisions of this contract if the cause is outside of the reasonable control of the Company.
32) This document and its interpretation, validity and all claims relating to any actions or omissions arising from conduct in connection with this document shall be governed by the laws of Victoria and the parties agree to submit to the exclusive jurisdiction of the Courts of Victoria.
33) A waiver of any provision of this agreement by the Company must be in writing. No delay by the Company in exercising any right or power pursuant to this document 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.
34) The warranties, undertakings, agreements and continuing obligations in this document do not merge on completion.
Last updated November 2014