Roll Cage Equipment Hire Agreement
Application of Terms and Conditions
Following are the list of application of terms and conditions to hire roll cage equipment
Rental of Equipment
- ColdXpress rents the roll cage Equipment to you from the Delivery Date until the earlier of the Return Date or the date this agreement is terminated under clause 10 (Rental Period).
- ColdXpress has agreed to rent the roll cage Equipment to you for the safe carriage of cold goods that ColdXpress freights to you. You acknowledge that the Equipment is only to be used for the storage of goods supplied by ColdXpress (Permitted Use), must not to be used for the storage of any other goods or materials and that the Rent has been discounted to reflect that limitation.
Delivery and return of Equipment
- During each Delivery Day that this Agreement runs, ColdXpress will deliver to you the number of Roll Cages specified number in XDock. You must make that same number of Roll Cages available for collection by ColdXpress at the Delivery Point at the end of the Rental Period. You bear all costs of collecting and returning the Equipment to the Delivery Point.
- You agree that a record in XDock stating the number of Roll Cages that has been delivered to any given Ritchie’s store on a Delivery Day is conclusive and final evidence of the number of Equipment actually delivered, except in the case of manifest error.
- You must return the Equipment to the Delivery Point by the Return Date in the same condition as when the Equipment was delivered. You acknowledge ColdXpress may have commitments to third parties to provide the Equipment on or following the Return Date. Without limiting any other provision of this agreement, you will be responsible for, and must pay on demand, all liabilities, costs and expenses incurred by ColdXpress in connection with you breaching your obligation to return the Equipment in accordance with this agreement by the Return Date.
- If the Equipment has been damaged while in Your possession, You will pay ColdXpress within 7 days of being invoiced for the cost of repair of the damaged Equipment.
Increase in number of Equipment
During the term of this agreement, ColdXpress may increase the number of roll cage Equipment ColdXpress rents to you pursuant to this agreement by written notice.
Your general obligations
- comply with all laws relating to the Equipment and its use;
- use or permit use of the roll cage Equipment only for the Permitted Use and strictly in accordance with all directions, instructions and guidelines relating to the Equipment and its use given by ColdXpress or the Equipment manufacturer;
- not make any addition or modification to the Equipment;
- not alter any identifying mark or number on the Equipment including any mark that identifies the Equipment as the property of ColdXpress;
- at all times keep the Equipment under your control and not attempt or purport to sell, lease, licence, mortgage, charge or otherwise encumber or dispose of the Equipment or your interest as tenant in the Equipment;
- keep the Equipment at Your Premises;
- not allow any third party to have possession of the Equipment;
- keep the Equipment safe and secure and protected against all usual risks including theft, wilful or malicious damage, accident and disaster and immediately notify ColdXpress of any theft of, damage to or malfunctioning of the Equipment; and insure the Equipment for its full replacement value while it remains in your possession.
You acknowledge that:
- you will use the Equipment at your own risk entirely;
- subject to clause 2, the Equipment is the absolute property of ColdXpress and you do not have any property in the Equipment; and
- subject to clause 2, you do not have any right or obligation to purchase the Equipment, whether after the Return Date or otherwise.
- ColdXpress will invoice you for, and you must pay, the Rent at the time specified in the reference schedule.
Costs, taxes, etc
In addition to the Rent, you must pay to ColdXpress:
- At the same time as the Rent is due, any GST payable in respect of the rental of the Equipment to you. ColdXpress agrees to provide you with a valid tax invoice in respect of all such GST;
- on demand from ColdXpress, all taxes (in addition to GST but not including taxes on ColdXpress’s income) and duties payable in connection with the rental of the Equipment to you; and
- on demand from ColdXpress, any expenses incurred by ColdXpress in exercising its rights under this agreement (including any expenses ColdXpress reasonably incurs in re-possessing or attempting to re-possess the Equipment in accordance with clause 11).
Term and Termination
- Either you or ColdXpress may terminate this agreement at any time on 7 days written notice.
- ColdXpress may terminate this agreement immediately by notice in writing to you, if you:
- breach a term of this agreement and fail to remedy that breach within seven (7) days after receiving notice in writing from ColdXpress to do so;
- cease or threaten to cease carrying on business; or
- enter into or become subject to any form of insolvency administration or become unable to pay your debts as and when they fall due.
Repossession of Equipment
- Where this agreement is terminated, ColdXpress may repossess the Equipment, without any requirement to first notify you.
- You grant ColdXpress (and any person notified to you by ColdXpress) an irrevocable licence to enter Your Premises to exercise ColdXpress’s rights under clause 1.
- Repossession of the roll cage Equipment under this clause 10 does not limit any right, remedy or claim that ColdXpress otherwise has against you.
You indemnify ColdXpress against:
- any loss or damage to the roll cage Equipment during the period that it is in your possession or under your control;
- liability for any death, injury or damage to any person or property arising, directly or indirectly, in connection with the Equipment or its use; and
- any breach by you of this agreement or any negligent act or omission by you in connection with this agreement or the exercise of your rights under it.
This clause 12 survives expiry or earlier termination of this agreement.
ColdXpress exclusions and limitation of liability
- You warrant that, on delivery of the Equipment you will inspect the Equipment and satisfy yourself as to the quality, condition, safety and suitability of the Equipment for the Permitted Purpose. If you do not notify ColdXpress of any defect in the Equipment within 48 hours after delivery, you will be taken to have satisfied yourself as to the condition of the Equipment. You agree that, except for any conditions or warranties required to be implied by law that cannot be excluded (Non-Excludable Conditions), no warranty or condition as to the quality, condition, safety, suitability or otherwise of the Equipment is given by ColdXpress and all implied conditions or warranties (except for any Non-Excludable Conditions) are hereby excluded.
To the maximum extent permitted by law, ColdXpress’s liability for breach of any Non-Excludable Condition is limited at ColdXpress’s option, to:
- replacement, or payment of the cost of replacement, of the goods or services to which the breach relates; or
- repair, or payment of the cost of repair, of those goods or services.
To the maximum extent permitted by law:
- ColdXpress excludes liability under or in connection with this agreement (including for negligence) for all loss of profit or loss of opportunity and all indirect or consequential losses or liabilities; and
- except for breach of any Non-Excludable Condition, ColdXpress’s liability under or in connection with this agreement (including for negligence) is limited to an amount of $100.00.
- You agree that, subject to clause 2, the Equipment remains ColdXpress’s property and ColdXpress may register a purchase money security interest over it under the Personal Properties Securities Act (the Act). You must provide all information ColdXpress requires to register that security interest. You waive your right to receive copies of any financing statement, financing change statement or verification statement from ColdXpress and agree that sections 95, 118, 121(4), 125, 130, 132 and 135 of the Act do not apply to the extent they impose obligations on ColdXpress. To the extent permitted by law, you waive your rights to obtain information from us under section 275 of the Act and agree not to make any request for such information.
- If the Equipment is lost or materially damaged ColdXpress may, in its discretion, assign title to the lost or damaged Equipment to you and demand you pay ColdXpress the market value of the Equipment (prior to the damage occurring) as a debt due and payable on demand.
- This agreement is governed by the law in force in Victoria.
- You may not assign any of your rights or obligations under this agreement without the prior written consent of ColdXpress and no assignment of any obligation will be effective until the assignee has covenanted in favour of, and in form satisfactory to, ColdXpress, to assume and to be bound by the obligations assigned.
- No failure to exercise or delay in exercising any right given by or under this agreement to a party constitutes a waiver and the party may still exercise that right in the future and any waiver of any provision of this agreement or a right created under it must be in writing signed by the party giving the waiver and is only effective to the extent set out in that written waiver.
- All notices or other communications (Notice) given in connection with this agreement must be in writing. A Notice may be given by prepaid post or by electronic message to the recipient’s current address for service for Notices as set out in this agreement or as amended by Notice from time to time.
Rules of Interpretation
In this agreement, unless the context otherwise requires:
- words defined in the body of these terms and conditions or in the reference schedule have their defined meaning wherever used in this agreement;
- if you comprise two or more persons, these terms and conditions bind both of you jointly and each of you individually even if only one of you has signed; and
- a reference to a person includes a body corporate and unincorporated body or other entity.