Datapro Communications Pty Ltd ABN 88 423 720 983
The Customer (which for the purpose of this Hire Agreement includes its employees, servants and agents) hereby Hires from Datapro Communications Pty Ltd (“DataPRO”) the Equipment as selected in the on- line store Checkout for a maximum period of 32-days (21-days Hire and 11- days Shipping both way) and includes all items, leads, articles, accessories, documents (including operating manuals) supplied with Equipment as listed on the website as inclusions upon the following terms and conditions.
1. CASUAL HIRE
- A Hire day is 24 hours. A Hire week is 168 hours (7-days) and includes Saturday, Sunday and Public Holidays. The Hire period commences on the day the equipment is delivered to the customer and continues until the Customer delivers the Equipment back to the Australia Post, Parcel Post delivery office handling the Shipping during business hours on a business day. A business day excludes Saturdays, Sundays and Public Holidays. (see clause 6 Delivery and Return of Equipment).
- When the equipment is not returned at the end of the maximum Hire period specified in the Hire agreement, then Hire charges will continue to accrue at the same daily rate as in the Hire agreement until the business day on which the equipment is returned complete with all the accessories and undamaged as per clause 1.1 above.
- Notwithstanding clause 1.2 above, the Hire period as selected in the on- line store Checkout is the Maximum period for which charges at the daily Hire rate can be accepted. Should the Customer wish to Hire the Equipment for a period longer than 21-days then this should be done on-line as a new Hire Agreement.
- A Hire fee at the daily rate and subject to the maximum total charges set out in the online store Checkout will continue to be charged until the equipment is returned complete with all the accessories and undamaged to the closest Australia Post Office parcel post depot as per clause 1.1. Where equipment or accessories are lost or equipment or accessories are damaged, then under clause 20 of the terms and conditions, the Hire fee at the daily rate shall continue to be charged and payable until replacement equipment or accessories are purchased and delivered to DataPRO and/or damaged equipment or accessories are replaced or repaired to serviceable condition and returned to DataPRO.
- A minimum transaction charge of $120.00 plus freight and GST will apply to any invoice.
- The Shipping costs shown in on-line store Checkout covers the cost of return freight back to DataPRO. The costs for Shipping the Equipment to the Customer including GST is paid by DataPRO. All other charges and return Shipping charges are to the Customer account if some of the Equipment or accessories were not returned in the first instance.
- Equipment returned to Australia Post Office for return shipping by 09.00am on any business day will be recorded as being received by close of business on the previous calendar day. Equipment received after 09.00am by Australia Post Office will be recorded as being received on that business day and DataPRO reserves the right to charge a further day Hire rate should it chose to do so.
- The Customer acknowledges that at all times the property in and ownership of the equipment remains with DataPRO and the Customer will not remove any stickers or other identification from the equipment giving notice of DataPRO ownership of the equipment.
2. DEBIT AUTHORITY
When the Customer has given a credit card or account debit authority, DataPRO are hereby authorized to debit all fees and charges payable under this agreement to the Customer’s card or account, whether owing now or in the future until such time as the equipment is considered returned in the same manner as issued.
3. OTHER CHARGES
The Customer shall be responsible for the payment of all costs, taxes, charges, imposts and expenses which arise or are incurred by virtue of any other equipment hire if this needs to be sourced outside of the Country. DataPRO reserves the rights to adjust any Hire fee if there is any adverse currency fluctuation between the country of Hire and the country of source. this Hire including:
- Any Stamp Duty or like or similar duty applicable to Hire transactions or Hire business.
- Any Goods or Services Tax or taxes in the manner or nature of a Goods and Services Tax.
- Any Value Added Tax or a tax in the manner or nature of a Value Added Tax.
- Any Sales Tax or tax of a similar manner or nature.
- Any Hire Tax or tax on rentals.
- Any customs duties and tariffs.
If any of the above taxes or duties apply in the country of rental, then such applicable tax and/or duty will be paid by the Customer in addition to the Hire fee. The Customer indemnifies DataPRO in respect of any claims for such costs, charges, imposts and expenses applied or incurred.
Payment shall be made on-line at the time of Hiring for the nominated period and other charges selected and/or added. Payment on extended Hire period up to a Maximum of 21-days shall be debited against Customer’s credit card or account. Payment of Hire periods longer than 21-days shall be considered as two separate Hire Agreements as per clause 1.3. Payment terms on additional charges such as replacement of equipment (if damaged, lost or stolen) accessories, manuals, cleaning and repairs are strictly seven(7) days from date of invoice unless otherwise agreed to.
5. OVERDUE PAYMENTS
If any amount is due and unpaid, the Customer agrees to pay interest on the overdue amount at the rate of 9% p.a. calculated daily until payment in full is received and the Equipment has been returned, whichever is the latter. The Customer is liable for all additional costs DataPRO may incur, including legal, administrative and collection costs to recover unpaid amounts or equipment.
6. SHIPPING, DELIVERY AND RETURN OF EQUIPMENT
Shipping to the Customer shall commence no later than 24 hours after receipt of payment. Delivery shall be by Australia Post, Parcel
Post delivery system to the nominated address. Shipping can be as long as 5 to 7 business days depending on the Customers address details as entered in the online Checkout process. DataPRO assumes no responsibility for Shipping lead times either arriving earlier or later than the stated Shipping lead times. Delivery of Equipment to the Customer shall be deemed to have taken place at the nominated Customers delivery address (as nominated in the online store Checkout), when signed for by the Customer, employees, servants and agents. If no one is there to accept responsibility of the Equipment, then the Equipment will be returned to the local Australia Post office awaiting collection by the Customer. The first Hire day will commence on the day delivery was first attempted. In some situations, Customers may be able to pick up the Equipment by arrangement. In these instances, delivery of Equipment to the Customer shall be deemed to have taken place upon Customer picking up the Equipment. In these instances, the Hire days shall commence immediately the Customer takes possession of the Equipment. Return of the Equipment to DataPRO is the sole responsibility of the Customer to deliver it to the nearest Australia Post, Parcel Post delivery office. Upon receipt of the equipment by Australia Post the Equipment is considered to be returned. The Customer agrees not to send the equipment by any other means unless agreed to by DataPRO.
7. CUSTOMER’S COVENANTS
The Customer agrees with DataPRO that:
- the Equipment shall remain the property of DataPRO and the Customer is only a bailee of the Equipment on the terms and conditions as set out in the Hire Agreement;
- the Customer shall not sell, charge, pledge or part with possession of the Equipment;
- the Customer shall keep the Equipment at the delivery address specified in the Hire Agreement unless prior written permission has been obtained from DataPRO to relocate the Equipment elsewhere;
- the Customer shall use the Equipment in a careful and proper manner and not interfere or tamper with or let anyone else do so;
- the Customer shall notify DataPRO immediately if any judgment or order is levied against the Customer or property of the Customer or if a petition is presented for the liquidation of the Customer or an Administrator or Receiver is appointed, or a scheme of arrangement is proposed:
- the Customer shall permit DataPRO its agents or servants to enter the premises where Equipment is located at all reasonable times in order to inspect the Equipment or carry out repairs to the Equipment;
- the Customer requires and will utilize the Equipment for its business purposes;
- the Customer shall keep the Equipment in a safe and proper location;
- the Customer shall not alter or modify the Equipment without the prior written consent from DataPRO
- the Equipment shall at all times, whilst in the care, custody or control of the Customer, be at the risk of the Customer;
- The Customer accepts full responsibility for all equipment rented, including its use in accordance with any operating instructions provided or Government Acts and Regulations.
- The Customer will in respect of the Equipment comply with all Laws of Australia.
- The Equipment when returned to DataPRO will not have any information contained in or associated with it which would, if received by DataPRO or any other person, be in breach of any Australian Law(s).
DataPRO warrants that the Equipment rented is of merchantable quality and reasonably fit for the purpose for which it was designed and its capabilities documented in the Manufacturers data sheet applicable to that model and manufacturing date. Nothing in these terms and conditions shall restrict, modify or exclude any conditions, warranties, rights or liabilities which may at any time be implied in this Hire Agreement by any law where to do so would render any provisions of this Hire Agreement void or unenforceable. Other than expressly provided for in this Hire Agreement the Customer acknowledges that it has not relied upon any statement or representation by DataPRO in respect of the Equipment or the use of the Equipment by the Customer irrespective of whether or not the Customer’s purpose for the use of the Equipment is known to DataPRO. The Customer acknowledges that under no circumstances is DataPRO responsible or liable for any failure or unsuitability of the Equipment to perform the purpose required by the Customer.
DataPRO shall at its expense when it deems necessary provide maintenance and recalibration for Equipment and shall use its best endeavors to expeditiously repair or replace Equipment which may become defective during the Hire period through no fault of the Customer. If the Equipment does not operate properly the Customer shall notify DataPRO and request instructions before taking any action. The responsibility for advising DataPRO of any need for recalibration rests with the Customer. DataPRO may at its sole and absolute discretion and for such length of time as it deems expedient replace Equipment with another of such type or model as shall for the time being be available and Equipment so substituted shall be subject to these terms and conditions.
10. TERM OF HIRE
The term of
hire shall be that which is nominated in the on-line store checkout and Hire
shall commence on the date the equipment was delivered in accordance with
clause 6 of the Hire Agreement.
The Customer is responsible for the safekeeping of the Equipment and shall bear the risk of any loss, theft, damage or destruction of Equipment and if the Equipment shall require repair or recalibration or replacement as a result of the Customer’s use of the Equipment the Customer shall bear the total cost of any such repair or recalibration or replacement including any freight charges there occasioned. Any repairs carried out by DataPRO will be charged at our normal hourly rates. The Customer shall pay to DataPRO the total new replacement cost as assessed by DataPRO of the Equipment which is lost, stolen, destroyed or damaged beyond repair. The Customer shall pay to DataPRO a reasonable calibration and refurbishing fee in the event that ownership labels, calibration seals or anti-tamper notices affixed to Equipment are removed or defaced. Any item, article, accessory, document or thing supplied in conjunction with the Equipment (including operation manuals) not returned or are returned in damaged condition to DataPRO upon cessation of the Hire period shall be paid for by the Customer with a fee determined by DataPRO being charged to the account of the Customer. In respect of damage or loss of Equipment, or failure to return all of the Equipment (including all accessories), the Hire period shall continue, and the Customer shall continue to pay Hire until the Equipment has been repaired and returned (including all accessories) to DataPRO, or the replacement cost of new Equipment or accessories has been paid by the Customer. The Customer indemnifies DataPRO for all loss or damage suffered as a consequence of such damage or loss to, or failure to return, the Equipment and accessories.
12. CUSTOMER DEFAULT, TERMINATION & REPOSSESION
- If the Customer is in breach of this Hire Agreement then DataPRO shall be entitled to treat this Hire Agreement as breached and repudiated by the Customer and with or without notice accept the repudiation and terminate this Hire Agreement whereupon the Customer shall immediately, at its own cost and expense, return the Equipment to DataPRO and failing such return DataPRO may repossess the Equipment and charge the Customer for all of its costs and expenses incurred in doing so. Any such termination shall not prejudice any right to recover any unpaid Hire and the rights and obligations under clause 12. Further, DataPRO shall be entitled to recover all damages including any consequential damages incurred
- Where the Hire Agreement is terminated under clause 12.1 the Customer consents to DataPRO, its servants and agents entering its premises, or any other premises where the Equipment is located, using such force as is necessary to repossess the Equipment. The Customer must provide DataPRO with all reasonable assistance in order to locate and collect the Equipment. If the Equipment is not available for collection at the nominated time and or place the Customer will be liable for any additional costs DataPRO incur. DataPRO will not be liable for any damage to property caused by any person in collecting the equipment.
The Customer agrees to indemnify DataPRO and be responsible for all costs, charges and other liabilities incurred by DataPRO as a result of the Customer’s breach of any of these terms and conditions or as a result of DataPRO’s enforcement of any of these terms and conditions or arising out of or in any way connected with the use of the Equipment.
14. SEPARATE ITEMS OF EQUIPMENT
Where more than one item of Equipment is supplied under this Hire Agreement, in interpreting this Hire Agreement, the singular shall be read as the plural where appropriate and the Hire shall be apportioned to each item of Equipment as set forth in the Hire Agreement and the conditions herein set forth shall apply separately to each individual item of Equipment as though each item of Equipment was subject to a separate Agreement.
- If the Equipment does not function as specified in the on-line documents and data sheets for the particular piece of equipment, AND you are not trying to use the equipment for what it is not intended for then in the event of any breach by DataPRO of the Hire Agreement then to the extent permitted by law DataPRO liability (if any) for any loss, damage or injury whatsoever shall be restricted to the amount of the Hire for the duration of the Hire period in which the breach occurs and DataPRO shall not be liable for any item of so called consequential loss. If this Hire Agreement constitutes a supply of goods or services to a consumer, as defined in the Consumer Guarantees Act 1993, as amended, nothing in this Hire Agreement excludes, restricts or modifies any condition, warranty or other obligation in relation to this Hire Agreement and the goods or the services to be supplied, where to do so would be unlawful. In such case, DataPRO’ sole liability for breach of any such condition, warranty or other obligation, including consequential loss, shall be limited to one of replacement of goods; supply of equivalent goods; refund of the invoiced value of the goods; the repair of the goods; or in relation to the services either the supply of the services again or refund of the original fee.
- If the Equipment is returned or repossessed, DataPRO is not liable to the Customer for any consequential damage or other damage arising out of or by reason of any Customer data or information being contained in the Equipment.
- DataPRO will not be liable for any failure to deliver the Equipment or perform services under this Hire Agreement if the failure arises as a consequence of fire, embargo, strike, inability to secure materials or labour, or any other matters beyond the control of DataPRO. In addition, DataPRO will not be liable for any delay or failure to deliver by any freight company or delivery service to deliver the Equipment to the Customer or any consequential loss or damage arising in respect of delivery of the Equipment.
16. PERSONAL PROPERTY SECURITY ACT 1999
The customer acknowledges that DataPRO has a Security Interest (as that term is defined in the Personal Property Security (PPS) Act 1999) in all goods supplied. They will assist as required to ensure that that Security Interest becomes a “Perfected Security Interest” (as defined in the PPS Act 1999).
17. INTELLECTUAL PROPERTY RIGHTS
All rights pertaining to industrial or intellectual property including but not limited to copyrights patents and trademarks are expressly reserved. The Customer shall not make any copies or authorise or allow any copying of anything supplied such as software programs and operating manuals except with the prior written authority of DataPRO and the owner/licensor and in accordance with the license terms as applicable. All copies must be delivered up with the Equipment.
DataPRO is entitled to separately charge for consumables including but not limited to thermocouple wire, labels additional clamp sizes if required to be supplied by DataPRO for the operation of the Equipment.
Unless indicated elsewhere in this Hire Agreement it is the Customers responsibility to ensure that the Equipment is fully insured against, damage, theft and loss whilst in the care of the Customer.
The Customer shall notify DataPRO of any event resulting in the damage, theft or loss within 2 business days. The Customer whether insured or not shall be wholly responsible to pay both the Hire days utilized and the costs of replacing damaged, stolen or lost Equipment and where insured to recoup the money from their insurance company.
These Terms and Conditions constitute the entire agreement between DataPRO and Customer with respect to the Equipment and shall not be amended except in writing by DataPRO. This Hire Agreement shall be governed in all respects by the laws of Australia and the jurisdiction of the State of Victoria shall apply to any dispute arising out of this Hire Agreement.
21. CONSUMER GUARANTEES ACT 1993
Where the provisions of the latest Consumer Guarantees Act applies, nothing in these conditions limits any rights the buyer may have under that Act which is paramount. Where the goods are acquired for the purposes of a business (where “business” is as defined in the act), the buyer expressly agrees that the provisions of the Act do not apply.
22. HEALTH & SAFETY
The Customer shall abide by all relevant statutory and common- law obligations directly or indirectly relating to or touching upon its possession or use of the equipment including without derogating from the generality of the foregoing, the provisions of the Health & Safety in Employment Act 1992. The Customer further acknowledges that the equipment (Electrical Test & measurement) rented shall be used by a competent and licensed person such as an electrician or electrical engineer and shall indemnify DataPRO against any claims arising out of neglect, injury whether to body or property for not abiding by this requirement.
The Hire Agreement shall be governed in all respects by the laws of Australia and the jurisdiction of the State of Victoria shall apply to any dispute arising out of this Hire Agreement.