1. Hire Arrangement

1.1  The Owner has agreed to lease to the Customer the Cool Room for the Hiring Fee, plus any Delivery Fee, during the Hire Term on the terms and conditions set out herein.  

2. Retention of Title 

2.1 Ownership and title of the Cool Room will at all times remain with the Owner.  

2.2 The Customer is prohibited from:

2.2.1 creating any security interest of any kind over the Cool Room, 

2.2.2 offering or purporting to sell, assigning, sub letting, mortgaging or otherwise parting with possession of the Cool Room.

3. Hire Term 

3.1  The Hire Term shall commence  on the Commencement Date and Time and will end  on the Collection Date and Time upon which the Cool Room is collected by the Owner, subject to the remaining clauses hereof.  

4. Deposit Amount Required

4.1 The Deposit Amount Required is the amount payable by the Customer to the Owner upon confirmation of a booking.

4.2 The Deposit Amount Required will be applied in full toward the Hiring Fee.  

4.3  If the Customer cancels the booking at least six (6) months prior to the Commencement Date and Time, the Owner will refund the Deposit Amount Required to the Customer.

4.4 In the event that the Customer cancels the booking within six (6) months from the Commencement Date and Time, then the Deposit Amount Required is forfeited to the Owner. 

5. Security 

5.1 At the time of making a booking and paying the Deposit Amount Required, the Owner requires the Customer to:

(a)    Provide it with a copy of the Customer's current driver's licence as proof of identity.  

(b)    Provide it with a copy of their current credit or visa debit card as security ('Credit card').  

5.2 The Customer hereby authorises and directs the Owner to debit the Credit Card for payment of any monies owed by the Customer to the Owner for the Hiring Fee in addition to any Delivery Fee, interest payable for unpaid Hiring Fee or legal collection costs (on an indemnity basis).

6. Hiring Fee

6.1 The balance of the Hiring Fee is due and payable twenty eight (28) days prior to the Commencement Date and Time, on the date as specified at Item 8 of the Schedule.  

6.2 Should the Customer fail to make payment of the balance of the Hiring Fee on or before the Balance Due Date, the Hiring Fee (less the Deposit Amount Required) becomes due and payable to the Owner and the Customer irrevocably authorises the Owner to debit the Credit Card of the Customer for the amount owing.  

7. Delivery  Fee

7.1 If the Customer requires the Cool Room to be delivered in excess of twenty (20) kilometres from Berry in NSW, the Customer agrees to pay the Delivery Fee, in addition to the Hiring Fee. 

7.2 The Delivery Fee is due and payable on the Balance Due Date.

8. Risk 

8.1 Risk in relation to the Cool Room passes to the Customer upon delivery of the Cool Room to the Customer. 

8.2  The Customer will assume all risks and liabilities for and in respect of the Cool Room and for all injuries to or deaths of persons and any damage to property howsoever arising for the Customer's possession, use, or storage of the Cool Room.

9. Delivery and Collection 

9.1 The Cool Room will be delivered to the Site by the Owner on the Commencement Date and Time. 

9.2 The Cool Room will be collected from the Site by the Owner on the Collection Date and Time. 

9.3 The Customer must arrange and at all times provide reasonable and adequate access to the Site for delivery and collection of the Cool Room by the Owner. 

9.4  If any additional costs are incurred by the Owner to deliver the Cool Room to the Customer due to a breach of clause 9.3, such costs are to be met in full by the Customer.

10. Use of the Cool Room 

10.1 The Customer must ensure that during the Hire Term the Cool Room is kept secure and is protected from theft or damage. 

10.2 The Customer must immediately notify the Owner of any malfunction, mechanical failure, damage to, or loss of, the Cool Room when such malfunction, mechanical failure, damage to, or loss occurs. 

10.3 The Customer is prohibited from transporting the Cool Room and the Cool Room must remain in the location that it is positioned on the Site when delivered by the Owner.  

10.4 When using the Cool Room, the Customer must: 

10.4.1  not undertake any modification, alteration or addition to the Cool Room;

10.4.2 not use the Cool Room when damaged or unsafe; 

10.4.3  not store any illegal, prohibited or dangerous substances in the Cool Room; 

10.4.4  only use the Cool Room for a lawful purpose; 

10.4.5 not exceed the recommended load capacity of the Cool Room; and

10.4.6 follow all instructions (verbal or written), manuals, operational and safety instructions relating to operating the Cool Room. 

11. Cleaning

11.1      Prior to collection of the Cool Room by the Owner, the Customer must take all reasonable steps to ensure that the Cool Room is returned to same condition in which it was received by the Customer, save for any fair wear and tear.

12. Mechanical Failure, Repairs and Replacements 

12.1  In the event of failure or damage to the Cool Room the Customer must immediately notify the Owner. 

12.2 In the event that a breakdown, failure, or damage is not caused by the Customer, and is due to a fault or defect in the Cool Room (including parts), then the Owner may elect, at its absolute discretion, to either:

(a)    if appropriate, provide a replacement Cool Room; or 

(b)    if appropriate, repair the Cool Room; or 

(c)    provide the Customer with a refund.

12.3 Notwithstanding if the failure or damage is not due to negligence, misuse, or any act or omission by the Customer, the Customer will not be entitled to recover from the Owner any sum for loss, delay, inconvenience or of any other kind due to the failure of the Cool Room. 

12.4 If the Cool Room fails, breaks down or is damaged as a result of an act, omission, negligence, or the misuse of the Cool Room by the Customer, then the Owner will repair and make good the Cool Room and the Customer shall be responsible for the entire cost of any repair of any breakdown failure or damage.  

12.5 In such circumstances of 12.4, the Hiring Fee, any Delivery Fee, or the Deposit Amount Required will not be returned to the Customer.  

12.6 If the Customer fails to make payment of the costs associated with repairing the Cool Room and the Owner is required to take legal enforcement action, the Customer shall be responsible for any costs relating to that legal enforcement action, on a full indemnity basis. 

13. Insurance 

13.1 The Owner shall maintain at all times a Public Liability insurance policy in the sum of $10 million.  

13.2 The Owner will also maintain a policy of insurance for the replacement value of the Cool Room against loss, damage, theft or attempted theft of the Cool Room.  

13.3 The Customer shall be responsible for all policies of insurance with respect to any goods stored in the Cool Room, and any person using the Cool Room.  

13.4 The Customer must not do any act (or omission) that may void the Owner's insurance.

13.5 In the event that the Owner is required to make a claim on its insurance arising from or related to in any way to an act, omission or negligence by the Customer, then the Customer must reimburse the Owner for any excess fee payable for each and every claim and in the event that the insurance is insufficient to cover the repair or replacement of the Cool Room, the Customer shall make payment of such deficiency.  

14. Assignment 

14.1 The Customer must not resell, sublease, assign or transfer any of its rights in relation to the hire arrangement. 

15. Indemnity and Release 

15.1 The Customer releases, discharges, indemnifies and will keep indemnified the Owner against all claims, demands, writs, summonses, actions, suits, proceedings, judgments, orders, damages, costs, losses and expenses of any nature whatsoever which the Owner may suffer or incur in connection with death, personal injury and/or damage of any kind arising out of or in relation to the use by the Customer of the Cool Room; any act, neglect, default or omission by the Customer or any person or persons using the Cool Room with the Customer's consent or approval express or otherwise or any breach of the terms of conditions contained herein by the Customer. 

16. Liability 

16.1 The Owner will at no time be liable to the Customer for any loss, claim or expense caused by any factor beyond the Owner's reasonable control or any direct or indirect inconvenience, loss or expense caused by the breakdown or damage to the Cool Room, including food spoilage or any other consequential loss.  

16.2 In any event, the Owner's liability under this hire arrangement is limited to either replacing the Cool Room and/or reimbursement of the Hiring Fee. 

17. Warranties

17.1 To the extent permitted by Law, the Owner provides no warranties as to the quality or fitness for purpose of the Cool Room. 

18. Intellectual Property 

18.1 All intellectual property shall at all times remain the property of the Owner and nothing in this Agreement grants a right or licence over the intellectual property to the Customer.  

19. Default 

19.1 The Customer shall be in default if it fails to pay any costs by the due date or fails to perform any of its obligations as required by these terms and conditions.

19.2 In the event that the Customer is in default then the Owner may, in its absolute discretion, terminate the agreement, immediately retake possession of the Cool Room and the Customer shall be liable for all costs (whether paid or not).  

19.3 All expenses and costs (including legal costs) incurred by the Owner in relation to the recovery of any costs for the collection of the Cool Room will be payable by the Customer on a full indemnity basis.

20. Dispute Resolution 

20.1 If a dispute arises out of or relates to the terms and conditions, including any dispute as to breach of the Hire Arrangement or as to any claim in equity or under any Statute, a party cannot commence any Court or Arbitration proceedings relating to the dispute unless that party has complied with the following clauses, except where that party seeks urgent interlocutory relief.  

20.2 A party claiming that a dispute has arisen must given notice to the other party specifying the nature of the dispute.  

20.3 On receipt of that notice by the other party, the parties must try in good faith to resolve the dispute expeditiously using informal dispute resolution techniques such as mediation, expert evaluation or determination or similar techniques as agreed between the parties.  

20.4 If the parties do not agree within seven (7) days of receipt of the notice, or any further period as agreed between the parties, as to: 

(a)            the dispute resolution technique and procedure to be adopted; 

(b)            the timetable for all steps in those procedures; 

(c)             the selection and compensation of the independent person required for such techniques, 

then the parties must mediate the dispute in accordance with the Mediation rules of the Law Society of New South Wales and must request the President of the Law Society of New South Wales or the President's nominee to select the Mediator and determine the Mediator's remuneration. 

21. GST 

21.1 GST is payable by the Customer on all costs and other payments due to the Owner.  

21.2 Any amount referred to as payable by the Customer is to be treated as GST-inclusive, unless otherwise specified. 

22. Governing Law 

22.1 These terms and conditions will be governed by and construed in accordance with the laws of the State of New South Wales and the parties submit to the Courts located in New South Wales. 

23. Force Majeure

23.1 No party shall be liable to the other where any force majeure event prevents or delays the performance by that party of its obligations under this Agreement. 

25. Definitions

In these terms and conditions:

Balance Due Date means the date as specified at Item 8 of the Schedule.

Commencement Date and Time means the date and time specified at Item 1 of the Schedule.

Collection Date and Time means the date and time specified at Item 2 of the Schedule.

Cool Room means the type of cool room(s) hired by the Customer as specified in Item 4 of the Schedule.

Customer means the person(s) specified at Item 9 of the Schedule.

Delivery Fee means the fee specified at Item 6 of the Schedule.

Deposit Amount Required means the deposit payable by the Customer pursuant to clause 7 and as specified in Item 5 of the Schedule.

GST means a goods and services tax.

Hiring Fee means the amount specified at Item 5 of the Schedule.

Owner means J.M Dudgeon & B.R Watson.

Site means the Site to which the Cool Room shall be delivered to or collected from for the use of the Customer as specified in Item 3 of the Schedule.