TERMS & CONDITIONS OF WEBSITE USE
1.1 These Terms and Conditions apply to you, the Website user and your usage of the Mulbury and associated software, networks and processes, including the purchase of goods or services through the Website.
1.2 By browsing the Website, or placing an Order, you agree to these Terms and Conditions as set out below.
“Agreement” means these terms and conditions, including all the terms of any order placed by you the User through the Website (if applicable).
“Customer” means the person or legal entity identified in a Mulbury quote, invoice or sales document.
“Delivery Cost” or “Shipping” or “Freight” means the costs associated with delivery as specified in an Order.
“Goods” or “Items” means the Products listed in an Order.
“Intellectual Property” means all rights in patent, copyright, trade names, trademarks, logos, designs, images (including still images, and audio and audio-visual media).
“Material” means any information (including but not limited to data, source codes, and drawings) or images in any form (whether visible or not) stored on or in use with the Website.
“Pre-sale” means items that are sold in anticipation of being in stock on or near to the dispatch date stated in the Product listing on the Website.
“Products” means any items listed on the Website (for sale or otherwise), including extended warranties.
“Website” means the internet site located at the URL www.mulbury.com.au and operated by Mulbury.
2.2 Any reference in this Agreement to the singular includes the plural, to any gender includes all genders, to any act or statute includes any Act or statute which supercedes, replaces or modifies any earlier Act or statute, to persons includes all bodies and associations both corporate and incorporated and vice versa. Paragraph headings are for reference purposes only and all references to clauses are to clauses in this Agreement unless otherwise specified.
3. Site Use
3.1 The Website may contain links to other web sites. Those links are provided for convenience only and may not remain current or be maintained. Mulbury will not be responsible for the content or privacy practices associated with linked web sites.
3.2 You must ensure that your access to, or use of the Website is not illegal or prohibited by laws which apply to you.
3.3 You must take your own precautions to ensure that your process for accessing the Website does not expose you to risk of viruses, malicious computer code or other forms of interference which may damage your computer system. Mulbury takes no responsibility for any such damage which may arise in connection with your use of the Website.
4.1 All prices listed on the Website are in Australian Dollars unless otherwise specified.
4.2 All prices listed on the Website include all applicable taxes unless otherwise specified.
4.3 All prices displayed on the Mulbury website are subject to change without notice. Prices for items in an Order are fixed once your Order has been confirmed. Subsequent price changes either up or down will not be retroactively applied to confirmed Orders.
4.4 If a Discount Code is entered at the checkout, it has the effect of applying a discount equally across the entire Order, including both Goods and associated Delivery Cost.
4.5 You agree to pay delivery charges as they are calculated and listed in the Order confirmation at the time of purchase.
4.6 Free shipping offers are given at the sole discretion of Mulbury and may incur additional charges for delivery to remote areas as defined by Mulbury.
4.7 Mulbury reserves the right to refuse a sale.
5. Product Specifications
5.1 Features and specifications of Products described or depicted on the Website are subject to change without notice.
5.2 All weights and dimensions mentioned are approximate.
5.3 Some products are hand made and use recycled materials. Some items may not look the same as they appear on the website due to a bespoke nature.
6.1 You may place an Order by filling in the Order Form on the Mulbury Website and clicking the "confirm" button. When you place your Order, we will issue you with an Order Number. We will do this by email. By placing an Order, you make an offer to us to purchase the Products you have selected based on these Terms and Conditions
6.2 Orders will be deemed to have been received by Mulbury at the time Mulbury sends an Order confirmation to your nominated e-mail address.
6.3 Mulbury is an online and in-store business and will primarily communicate with customers via e-mail. It is the customer’s responsibility to ensure the correct contact details are entered and that the nominated e-mail address is regularly checked for correspondence.
6.4 Each Order (once confirmed) represents a separate agreement.
6.5 Mulbury reserves the right to not accept or to cancel Orders that request commercial quantities of Goods.
6.6 Mulbury, at its sole discretion, may cancel your Order at any time prior to dispatch of the Goods, including Products that are sold on Pre-sale.
6.7 In the event of a cancelled Order, funds paid in relation to that Order will be refunded in full as soon as is reasonably practicable. You will be provided with e-mail acknowledgement of the cancellation and refund.
6.8 Mulbury reserves the right to at any time alter the specification in respect of the Goods without giving notice to the Customer, in the interest of continual improvement. An alternation does not entitle the Customer to return Products, cancel an Order or otherwise avoid its obligations and liabilities pursuant to these Terms and Conditions.
6.9 Mulbury accepts no responsibility for Orders that are declined or not accepted due to disruptions with internet connections.
7.1 Mulbury currently accepts Visa/Mastercard, Paypal and Direct Deposit via EFT.
7.2 Payment for Orders will be processed immediately upon confirmation of your Order, including for Products that are listed as on Pre-sale.
7.3 If your nominated payment method triggers Mulbury internal suspect transaction protocols, Mulbury may contact you to confirm additional details, or rescind the transaction.
8. Delivery and ownership of the goods
8.1 All purchasers via the Mulbury website include a separate dispatch service (the Service), a service which is distinct from the supply of Goods, and which includes only the dispatch of the order with a third party carrier, and the provision to the carrier of instructions to enable the delivery of the Goods to the customer by the carrier.
8.2 Once an order has been dispatched to the customer by Mulbury in accordance with 8.1, the dispatch service is deemed to have been provided, and in no circumstances is Mulbury then liable to refund the delivery fee paid by the customer.
8.3 Mulbury is not responsible for the delivery and delivery times of Goods once dispatched in accordance with 8.1. Once Goods have been dispatched, it is the customer's responsibility to liaise with Mulbury’s nominated courier company in relation to date of delivery and to make themselves available to take delivery during business hours or otherwise in accordance with the carrier’s instructions. Any information provided by Mulbury to a customer in relation to delivery will be from a third party, and as such Mulbury will not guarantee the accuracy of such information. Mulbury will provide customers with tracking information to enable liaising with the carrier.
8.4 The parties acknowledge that delays in shipping do occasionally occur, and Mulbury is not liable for any loss and damage caused by the delivery delays, nor to refund any amounts paid for the order or delivery of the order.
8.5 The parties acknowledge that Goods may be damaged in transit by the carriers, and in such a case, the customer may contact Mulbury in accordance with Clause 9, and other than in accordance with that clause, Mulbury is not liable in any way to provide a refund or for any other damage caused thereby or for any corresponding delays caused by the carrying out of the process outlined in Clause 9.
8.6 The date of dispatch listed on the website is the estimated date of dispatch as is reasonably estimated by Mulbury and is subject to change without notice. Where scheduled dispatch of a Product is delayed by more than 1 week, customers will be notified by e-mail at the e-mail address nominated in their Order.
8.7 Mulbury will not dispatch Goods to PO box addresses.
8.8 Title and risk in the Goods pass to the customer on signing for delivery of the Goods.
8.9 Where a customer gives written authority for an item to be delivered without a signature, any and all included insurance cover will be voided upon the item being left as instructed.
8.10 Mulbury's nominated courier will deliver Goods during business hours (9am to 5pm, Monday to Friday), unless otherwise arranged in advance with Mulbury.
8.11 Where a customer wishes to cancel an order after it has been dispatched in accordance with 8.1, the cancellation is treated in accordance with the 14 Day Money Back Guarantee, whereby shipping costs and return or redirection costs are not refunded and/or are payable by the customer.
8.12 The Service and delivery of Goods by third party carriers includes only delivery to ground floor and/or the front door (a door-to-door service) by a single delivery driver, and does not include carrying items inside, upstairs, in elevators, placement, assembly, removal of wrapping or the like. It is always the customer’s responsibility to arrange for a means (whether by requesting assistance from neighbours or friends or otherwise) to bring Goods inside (or in the case of a return, outside) from (or in the case of a return, to) the front door or grounds floor of residences or buildings.
8.13 For all items deemed “Oversize” (being a Good weighing over 25kg), the customer is also required to assist (or to arrange for someone to assist) the carrying of the Goods from the delivery vehicle to the front door, unless the customer has arranged for alternative and/or premium service in advance of dispatch with Mulbury.
9. Faulty or damaged goods
9.1 The parties acknowledge that on occasion, Goods may arrive to the customer with faults or damage, whether caused by damage in transit, or other causes.
9.2 Where a Good is faulty within the first 7 days after delivery or is already damaged on delivery, and the customer notifies Mulbury of that fault within the first 7 days after delivery, then Mulbury will:
(a) Replace or provide spare parts or repair the faulty Good at their discretion and depending on the circumstances; or
(b) If Mulbury is unable to provide a spare part or new replacement, Mulbury has the option to offer a full or partial refund dependant on the amount of damage to the product;
(c) Where a new replacement is available, and the customer elects to receive a refund instead of a replacement, the refund will be for the amount of the purchase price excluding the initial Delivery Cost, and any return costs (if applicable); and
(d) Mulbury considers environmental and other factors when deciding whether to offer to arrange for the return items from customers, or whether a replacement is appropriate, or whether the nature of the fault is such that a partial refund is appropriate
(e) The 7 Day period will commence on the date that the customer accepts delivery of their Mulbury product. Where there is no proof of delivery, this date will be assumed to be 3 business days from the date of dispatch of the product
(f) Outside of this 7 Day period, faults will be dealt with in accordance with the terms and conditions.
9.3 For all claims regarding damaged or faulty products, Mulbury requires photographic evidence or footage (which ever is more applicable) of the damage/fault to be e-mailed to firstname.lastname@example.org
9.4 Mulbury reserves sole discretion to determine whether the Goods are faulty or damaged in accordance with this clause 9.
9.5 Mulbury may seek reimbursement of any costs incurred by us when a returned Product is found to be in good working order.
9.6 Insignificant variations in colour or grain or finish (as between Goods received by a Customer and images shown on the Mulbury website), or damage to packaging only, is not a fault and is not covered by this clause. The Customer acknowledges that no two pieces of furniture are identical, and that items viewed on a computer screen image are not in all circumstances going to be identical to the direct view of that same item.
10. Refunds and returns
10.1 Other than in accordance with Mulbury’s 7 Day Money Back Guarantee, (or when a fault is deemed a major fault), Mulbury is not required to provide refunds.
10.2 No refunds are available for services where goods are not offered.
10.3 In order to facilitate a return under these Terms and Conditions, Customers must e-mail email@example.com
10.4 The customer must comply with directions from Mulbury staff to facilitate a return.
10.5 Returned Goods must be returned in their original packaging with all accessories, and must be in a re-saleable condition. If a returned item is found not to be re-saleable by Mulbury (at its sole discretion), Mulbury reserves the right to refund only 50% or less of the product price paid by the customer.
10.6 If the customer arranges to return the Goods themselves, it is the customer’s responsibility to ensure that returned items are returned safely and in re-saleable condition. Mulbury takes no responsibility for items lost in transit.
10.7 Mulbury offers up to 30 days to return goods for store credit or exchange of goods in conjunction with clause
10.8 Mulbury does not offer refunds on custom made picture frames if the customer is unhappy with the colour or other natural appearances of the recycled timber. Refunds may be given for custom made picture frames if the is an issue with quality.
11.1 Each Product sold on the Website is covered by a 6 month Mulbury Standard Warranty.
11.2 Items used for commercial purposes are covered by a 14 day warranty. For any damage claims, Mulbury must deem the damage to be a fault of the product and not from mistreatment or misuse. Photographic evidence is required. If there are signs of mistreatment or misuse of the product Mulbury have the right not to offer a refund or credit.
11.3 Mulbury warrants all goods for the period of the warranty under normal usage, to be free from defects in material and workmanship.
11.4 Mulbury’s liability under this warranty is to repair, provide spare or replacement parts, or replace entirely (at its discretion) any part or product covered by this warranty free of charge (subject to clause 11.8).
11.5 This warranty does not cover:
(a) Normal wear and tear;
(b) Damage arising from abnormal use, or abuse, or placement in inappropriate locations;
(c) Products which have not been maintained, or which have been modified;
(d) Any indirect or consequential loss.
11.6 Mulbury requires any customer requesting services in accordance with this warranty to provide to comply with directions from Mulbury staff in order to facilitate the investigation of the warranty claim, and the provision of repair and/or spare parts and/or replacement solutions from Mulbury (where applicable). Such directions will usually include the provision by the customer of a detailed description of the warranty service requested and photos and videos (where appropriate).
11.7 Mulbury is not required to provide warranty services in accordance with this warranty unless the customer complies with the previous sub-paragraph, because in the absence of provision by customers of the description and images, Mulbury is unable to investigate and provide an appropriate solution.
11.8 Our goods come 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 goods repaired or replaced if goods fail to be of acceptable quality and the failure does not amount to a major failure.
11.9 Mulbury considers that an item that has been damaged in transit, or contains a fault that is unique to the actual item sent to the customer, and therefore would not be expected to be a fault existing in a replacement, not to be a major fault in any circumstances notwithstanding the extent of said damage.
11.10 Due to environmental considerations, Mulbury does not pick-up furniture deemed, in Mulbury’s sole discretion, to be damaged or faulty beyond repair, and the customer is responsible for disposal (for example, by utilising publicly available hard-waste collection or disposal processes in the customers area).
11.11 Insignificant variations in advertised dimensions or colour or grain or finish (as between Goods received by a Customer and images or descriptions shown on the Mulbury website), or damage to packaging only, is not covered by this Warranty.
12. Intellectual Property
12.1 All Intellectual Property in any Material on the Website is the property of Mulbury. Unless expressly authorised under this Agreement or otherwise, you may not reproduce adapt, modify, display, perform or distribute any Material or any part of any Material.
13.1 You waive, release, discharge and relinquish any and all claims that you have now or may have against Mulbury which are connected with, arise out of, relate to or are incidental to the use of the Website.
13.2 You agree to indemnify and to keep indemnified Mulbury and hold harmless from and against any and all claims, loss, damage, taxes, liability and/or expense that may be incurred by Mulbury arising out of or in connection with the your use of the Website and the use of any Mulbury Products outside the manufacturer’s specifications (as specified in Product manuals and as notified to you from time to time).
14.1 To the extent permitted by law we will not be liable for any loss of income, loss of profits, loss of contracts, loss of data or for any indirect or consequential loss or damage of any kind howsoever arising and whether caused by tort (including negligence), breach of contract or otherwise; and our maximum aggregate liability for any Product supplied to you whether in contract, tort (including negligence) or otherwise shall in no circumstances exceed the amount payable by you to us in respect of the Product(s) in question.
14.2 For the avoidance of doubt, nothing in this clause limits or restricts your ability to make a claim that may be available to you for Our failure to comply with a guarantee under the Australian Consumer Law.
14.3 Mulbury will not be held liable for any customer artwork in our possession for more than 12months. If artwork is provided to Mulbury for picture framing and is not reclaimed within 12 months, any loss or damage to the artwork will not be covered by Mulbury. Mulbury will make multiple efforts to contact the customer about the existing artwork.
15.1 We gather personal information about our customers for the purposes of:
(a) marketing, supplying or delivering our products to you;
(b) carrying out repair work (both in and out of warranty repairs);
(c) improving and developing our products; and
(d) expanding our business.
15.2 Mulbury is committed to protecting your privacy and personal information because of our legal and ethical commitment to comply with relevant law and more importantly, because we know that you care how information about you may be used and shared.
Mulbury will not sell, rent, share, or otherwise disclose personally identifiable information in violation of the commitments set forth in this clause 16.
15.3 In the process of dealing with our customers, we may collect and hold the following types of information:
(a) Information about persons who are customers or target customers as given to us by those persons, or information obtained from public domain sources such as magazines and newspapers.
(b) Information about roles, means of communication with, and personal attributes of officers, employees and other representatives of corporations with whom we deal, collected incidentally in the course of dealing with those corporations.
15.4 The aforementioned information may be held in electronic records in data storage systems and hard copy which permit lawful access only by those company officers, employees and contractors who need access to perform their functions.
15.5 We may, from time-to-time, employ other companies and individuals to perform functions on our behalf. For example we may retain a third party repairer to provide warranty repair. In these circumstances we may disclose personal information to such companies and individuals to enable them to deliver services on our behalf.
15.6 You are able to request access to your personal information, in accordance with the National Privacy Principles in the Privacy Act 1988. If you wish to access your personal information please contact us at by e-mail at firstname.lastname@example.org. A $30.00 administration fee will be charged for the retrieval of any personal information.
16.1 Mulbury reserves the right to make changes to the Mulbury Website and Order Terms and Conditions without notice.
16.2 Any provision of this Agreement which is void or unenforceable may be severed from this Agreement without affecting the enforceability of other provisions.
16.3 A failure or delay by Mulbury to exercise a power or right under this Agreement does not operate as a waiver of that power or right, and the exercise of a power or right by Mulbury does not preclude its future ability to exercise that or any other power or right.
17. Instagram Mother's Day Gift Box CompetitionTerm's & Conditions 04/04/16 - 30/04/16The competition is open from 12:00AM Monday 04 April to 11.59pm Tuesday 26 April to Australia Residents only aged over 13 years old.
There will be 3 winners announced and all selected at random.
For a chance to win, contestants must lie @Mulbury on Instagram, Like the competition post, and for extra entries, repost the image including the hashtag #mulburycomp in their repost.
Entry via Instragram only
1 entry & repost per instagram account
Each winner will receive 1 x Mulbury Gift Box
If the winner/s fails to accept the prize and/or unable to meet the conditions of entry, another winner will be selected 1 week from the end date of the competition.
Employees, family and friends of employees of the promoter, and its agencies associated with the competition, are ineligible to enter.
By entering the competition, the entrant agrees that Deval Pty Ltd T/A Mulbury can use their name, photographs and story for publicity and promotional purposes, without compensation, and that Deval Pty Ltd will own copyright in any such photographs and in all material incorporating the photographs.
Deval Pty Ltd reserves the right to verify the validity of claims and to disqualify any claimant who tampers with the claim process or who submits a claim that is not in accordance with these terms and conditions. All claims will be subject to the Deval Pty Ltd validation and verification checks.
The judge’s decision is final and no correspondence will be entered into.
The Promoter is Deval Pty Limited, Highett VIC 3190. A.B.N. 75 819 271 087. The Promoter reserves the right to withdraw the promotion at any time during the offer period.
All claims will be subject to the Promoter’s validation and verification checks. Promoter’s decision is final and no correspondence will be entered into.
The Promoter shall not be liable for any loss or damage whatsoever which is suffered (including but not limited to indirect or consequential loss) or for personal injury which is suffered or sustained, as a result of participating in this offer, except for any liability which cannot be excluded by law.
18. Hire / Hiring from Mulbury
Definitions “Equipment” means the items hired out by the Owner to the Hirer. “Hirer” means any person who requests the Owner to hire Equipment to it, including its employees and agents. “Owner” means Mulbury or Deval Pty Ltd its employees and agents. ‘Terms’ means these terms and conditions.
Terms of Payment. The Hirer agrees to pay the Owner’s hire charge and any other charges, including charges for loss, damage and repairs or any tax, GST, duty, levy, or other expenses paid or payable by the Owner. If not otherwise speci ed by the Owner in writing all hiring charges including taxes and duties are to be paid prior to delivery of the Equipment. The Hirer agrees to provide the Owner with the Hirer’s credit card number, expiry date and any other information which may be necessary to debit the Hirer’s credit card prior to delivery of the Equipment. Subsequent charges for loss, damage, repairs or other expenses are to be paid within seven days of the relevant invoice. The Hirer hereby authorises the Owner to debit the Hirer’s credit card with the amount shown on the relevant invoice if the Hirer has not paid that amount within seven days of the date of the relevant invoice. The Hirer agrees to pay any expenses incurred or loss su ered by the Owner as a result of breach by the Hirer of its obligations pursuant to these Terms (including legal costs on a solicitor-client basis) and to pay all costs and expenses incurred by the Owner, its legal advisers, mercantile agents and others in respect of anything instituted or being considered against the Hirer, whether for debt, possession of any Equipment or otherwise. The Hirer acknowledges and agrees that the Owner may pay a rebate, commission or other nancial bene t to event organisers or like suppliers in connection with the hiring of the Equipment to the Hirer.
The Owner agrees to hire the Equipment to the Hirer on these Terms and the terms of the booking. If there is any inconsistency, these terms prevail.
By Owner The Owner may terminate hire of the Equipment any time on the earlier of: (a) the expiry of the hire period designated on the form; and
(b) the Hirer being in breach of these Terms, in which case the Hirer shall have no claims against the Owner for such termination.
4.2 By Hirer The Hirer may terminate the hire of the Equipment by:
(a) Returning the Equipment to the Owner during normal working hours;or
If the Owner has agreed in writing beforehand to collect the Equipment on termination, notifying the Owner that the Equipment is ready for collection, provided that
(b) the Hirer keeps the Equipment safe until collection.
4.3 Effect of Termination
(a) upon termination of hire, the Owner is entitled to take possession of the Equipment immediately and for this purpose the Hirer irrevocably appoints the Owner as the Hirer’s agent and authorises the Owner to:
(i) enter upon any land or premises upon which the Equipment is situated or where the Owner has any reason to believe that the Equipment may be situated; and
(ii) remove the Equipment whether or not it is axed to the land or premises, connected to property or Equipment not owned by the Owner, in use by the Hirer or any other person or containing property not owned by the Owner, in use by the Hirer or any other person or containing property not owned by the Owner.
(b) if the Equipment is not finally returned or if the Owner has agreed beforehand to collect, ready for pick-up by the Owner at the expiration or termination of the hire period the Hirer shall pay an additional charge of 100% the daily rate for every additional day or part thereof that the Equipment is retained by the Hirer unless otherwise speci ed by the Owner.
5. The Hirer’s Obligations The Hirer will:
(a) hire the Equipment at its own risk, and bear responsibility for the Equipment hired from the time of its delivery into the possession of the Hirer until collection by or return to the Owner;
(b) where necessary be responsible to obtaining the necessary permits and/or plans and pay such fees as may be required to use the Equipment.
(c) upon installation, delivery or collection of the Equipment, immediately examine the Equipment to satisfy itself as to its condition and suitability and tness for the purpose to which it requires the Equipment. In accepting the Equipment, the Hirer acknowledges that it has duly examined the Equipment and has satis ed itself as required. The Hirer acknowledges that it has not in any way relied upon the skill or judgement or any representation made by or on behalf of the Owner in respect of the Equipment, its purpose, suitability or performance. Should the Hirer alter its installation or delivery requirements prior to, during, or after installation or delivery, the Hirer is liable for all extra costs of the Owner’s employees and shipping;
(d) not remove the Equipment from the location designated in the order form, and must not sub-hire, part with possession or part with control of, the Equipment, without the Owner’s written permission.
(e) assume the risk of and indemnify and hold the Owner harmless from and against any and all property damage and personal injury resulting from:
(i) the use of the Equipment;
(ii) contact with underground cables, pipes, services or other obstructions; and (iii) all necessary surface repairs.
(f) use the Equipment in a proper, safe and prudent manner and only for the purpose and capacity for which it was designed;
(g) comply with any written instructions given to the Hirer or accompanying the Equipment;
(h) ensure all Equipment is returned or ready for collection by the Owner’s driver, in a clean, dry and properly packed condition and, if being collected, is readily accessible; and
(i) will pay for all cleaning or drying costs and for any damage resulting from not properly drying, cleaning and/or packing the Equipment.
Property The Hirer acknowledges that the Owner may inspect the Equipment at any time during the period of hire, whether notice of such inspection is given to the Hirer or not, and the Hirer shall provide all assistance and co-operation necessary to facilitate such inspection of the Equipment. The Hirer shall indemnify the Owner in relation to any action of trespass or any other action or claim against the Owner in the course of the Owner exercising its right to inspect the Equipment. The Hirer acknowledges that all property in and title to the Equipment at all times remains with the Owner, the Hirer does not acquire any property in or title to the Equipment and the Hirer’s interest in the Equipment is as bailee of the Owner only.
Loss of or Damage to Equipment If the Equipment is lost, breaks down or is damaged, the Hirer must immediately notify the Owner of the details. Notifcation shall not absolve the Hirer from its obligations under these Terms. In the event that the Equipment breaks down or becomes unsafe to use, the Hirer shall immediately stop using the Equipment and take all steps necessary to prevent the Equipment from sustaining any further damage. The Hirer must also take all steps necessary to prevent injuries from occurring to any person or property as a result of the condition of the Equipment and must not repair or attempt to repair the Equipment without the Owner’s prior written consent. If the Equipment is lost or damaged and the loss of or damage to the Equipment is caused by the negligence or willful act or omission of the Hirer or the breach of any of these Terms by the Hirer, the Hirer shall without limitation be liable for;
(a) any costs incurred by the Owner in repairing or replacing the Equipment;
(b) hire charges for the Equipment until the Equipment is repaired or replaced; and (c) any other costs whatsoever incurred or loss su ered by the Owner as a result of the damage to or loss of the Equipment.
8. Release and Indemnity The Hirer hereby releases the Owner from, and agrees to indemnify the Owner in respect of any third party claims, action, suits, demands, costs and expenses for damage or injury to person or property arising directly or indirectly out of the hire or use of the Equipment by the Hirer or the Hirer’s breach of any of these terms.
9. Damage Waiver
Please note this is separate and distinct from insurance (refer clause 10). The Hirer agrees to pay a damage waiver to the Owner to cover any costs associated with any accidental damage to a particular item of Equipment, provided that the replacement cost and/or the cost of repairs to any Equipment which was damaged does not exceed 10% of the hiring fee for the particular item of Equipment. If the damage exceeds 10% of the hiring fee for the particular item of Equipment, then clause 7 shall apply. The damage waiver does not apply to or cover any other damage to or loss of Equipment including, without limitation:
(a) damage resulting from overloading, exceeding rated capacity, misuse, abuse or improper servicing of Equipment;
(b) damage or loss due to disappearance of the Equipment;
(c) damage caused by the use or operation of Equipment in contravention of any of hese Terms; and
(d) damage to, or loss of, the Equipment from any unknown cause.
10. Insurance The Hirer will maintain at its own expense all appropriate policies of insurance:
(a) for theft and damage to the Equipment hired in an amount not less than the full replacement cost of the Equipment; and
(b) for liability, property and casualty insurance coverage in amounts necessary to fully protect the Owner and its Equipment against all claims, loss or damage whatsoever.
11. Limitation of Liability To the full extent permitted by law, all warranties, conditions and guarantees that may otherwise apply or be implied are excluded and the Owner’s only obligation resulting from a breach by it or of any condition, warranty or guarantee that cannot be excluded is limited to replacing the Equipment or supplying Equipment similar to the Equipment, repairing the Equipment, paying the cost of replacing the Equipment or paying the cost of repairing the Equipment.
12. Security Interest
(a) These Terms create a security interest in favour of the Owner in the Equipment pursuant to the Personal Property Securities Act 2009 (Cth).
(b) The Hirer undertakes to immediately do such acts and provide such information as in the Owner’s opinion may be necessary or desirable to enable the Owner to perfect any security interest created or provided for by these Terms, as a perfected security interest with rst priority.
(c) To the fullest extent permitted by law, the Hirer waives any rights it may have now or in the future to receive a copy of any veri cation statement or other con rmation related to the interests created or provided for, or perfected in the manner contemplated by, these Terms.
13. Force Majeure If the Owner is unable at any time to perform any of its obligations whether wholly or partly by reason of any cause beyond its control (including without limitation, acts of God, inclement weather, strikes, lockouts, res, riots, civil commotion or unrest, interference by civil or military authorities or act of war) the Owner may give written notice to that e ect to the Hirer, giving full particulars of such force majeure in which case the obligations of the Owner under these Terms shall, to the extent that they are a ected by the force majeure, be suspended during the term of the force majeure. The Owner shall not be liable for any loss or damage su ered by the Hirer as a result of any delays caused by such force majeure events.
14. Credit Reporting The Hirer authorises the Owner to:
(a) obtain from a credit reporting agency a credit report containing personal
information about the Hirer and the Hirer’s guarantors pursuant to section
18K(1)(b) of the Privacy Act 1988;
(b) obtain a report from a credit reporting agency and other information in
relation to the Hirer’s commercial credit activities;
(c) in accordance with section 18N(1)(b) of the Privacy Act 1988, give to and
obtain from any credit provider that may be named in a credit report issued by a credit reporting agency information about the Hirer’s credit arrangements, which may include information about credit worthiness, credit standing, credit history or credit capacity; and
(d) use any credit information for the purposes of this contract (section 18L(4) of the Privacy Act 1988) and assisting the Hirer to avoid defaulting on its payment obligations, notifying credit providers of a default, and assessing credit worthiness.
15. Jurisdiction These terms and conditions are governed by the Laws of Victoria and the Hirer and the Owner submit to the jurisdiction of the courts of that State.
16. Charge The Hirer charges in favour of the Owner all its estate and interest in any land and in any other assets whether tangible or intangible in which the Hirer now has any legal or bene cial interest or in which the Hirer may later acquire any such interest with payment of all monies owed by the Hirers and agree upon request in writing, to execute a registrable instrument transferring to the Owner, the Hirers estate and interest by way of security.
17. Miscellaneous If any of the Terms becomes void or unenforceable for any reason then that part will be severed from these Terms to the intent that all other parts that do not become void or unenforceable will remain in full force and e ect and be una ected by any severance of other parts. Failure by the Owner to insist upon strict performance of any of these Terms, or to exercise in whole or in part any right that it may have under these Terms or at law, shall not be deemed to be a waiver of any rights that the Owner may have and shall not be deemed a waiver of any subsequent breach by the Hirer of any of these Terms.
Our goods come 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 goods repaired or replaced if goods fail to be of acceptable quality and the failure does not amount to a major failure.
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