Standard Rental Agreement Terms

Introduction

1. These are the standard terms that apply to the Rental Agreement between the Owner and the Borrower, unless otherwise agreed between the Owner and the Borrower.
2. Capitalised terms used in this document have the meanings given in clause 3 of the Circular Marketplace Terms and Conditions.

Conditions Of Use Of The Goods

1. The Borrower warrants that it has reviewed the Listing description and satisfied itself that the Owner’s Goods are fit for the Borrower’s purpose.
2. The Borrower must:
   1. take proper care of the Goods, including keeping the Goods safe and secure against less, theft, damage or unauthorised use;
   2. ensure that all persons who use the Goods:
      1. are competent and (where applicable) qualified to use the Goods;
      2. use the Goods with due care and skill and in the manner they were designed to be used;
      3. comply with all applicable laws and regulations; and
      4. comply with all manufacturer’s instructions and health and safety information provided with the Goods;
   3. not use the Goods or allow the Goods to be used for any unlawful purpose;
   4. immediately cease using the relevant Goods if any Goods are damaged, faulty or break down;
   5. immediately notify the Owner if any Goods are lost, stolen, damaged, faulty or break down;
   6. not remove, deface or obscure, and not allow any other person to remove, deface or obscure, any marks of identification or ownership or registration on the Goods;
   7. keep the Goods in its possession or control and not attempt to sell, pledge, charge, hire out or otherwise deal with the Goods;
   8. not do anything that would invalidate the Owner’s insurance;
   9. return the Goods:
      1. clean;
      2. in the same order and condition (including with all packaging, manuals and accessories) as at the commencement of the rental (fair wear and tear excepted);
      3. at the time agreed with the Owner; and
      4. in accordance with the arrangements set out in the Listing or otherwise agreed with the Owner; and
   10. not assign or transfer the Rental Agreement.

Ownership

1. Legal and beneficial ownership of the Goods remains with the Owner at all times. The Goods shall be deemed at all times to be personal property, whether or not they may be attached to any other property.
2. The Borrower:
   1. agrees that the rental of the Goods creates a security interest over the Goods, and all of the Borrower’s present and future rights in relation to the Goods and any proceeds, in favour of the Owner that may be registered on the personal property securities register under the Personal Properties Securities Act 1999 (PPSA);
   2. must provide all information and do all things including the execution of documents as the Owner may require for the purpose of ensuring that the Owner has a perfected first ranking security interest in the Goods and any proceeds under the PPSA;
   3. must not, and must not attempt to, sell, assign, pledge, mortgage, charge, encumber, hire, license, or part with possession or permit any lien to exist in respect of the Goods or grant any security interest over the Goods to any third party;
   4. agrees that sections 114(1)(a), 133 and 134 of the PPSA do not apply to the enforcement by the Owner of any security interest created or provided for by this Rental Agreement to which Part 9 of the PPSA applies, and waives any right it may have under sections 116, 120(2), 121, 125, 127, 129 and 131 of the PPSA on such enforcement; and
   5. waives any right it may have to receive from the Owner a copy of any financing statement, financing change statement or verification statement that is registered, issued or received at any time in relation to the Goods.
3. The Borrower must immediately notify the Owner if the Goods have a lien attached or are threatened with seizure. The Borrower must indemnify and hold the Owner harmless against all loss and damages caused by such action.
4. If the Borrower is in breach of the Rental Agreement (including by failing to pay any payment to Circular Marketplace when due), or on termination of the rental or the Rental Agreement for any reason, the Owner or its agent will be entitled to enter upon the Borrower’s premises at any reasonable time and repossess the Goods.

Risk And Responsibility

Unless otherwise agreed between the Owner and Borrower:

1. the Borrower is responsible for any damage (excluding fair wear and tear), loss or theft of the Goods for the period from when the Goods are collected from the Owner to when they are returned by the Borrower, even where such damage, loss or theft is due to causes outside the Borrower’s control; and
2. the Borrower must fully compensate the Owner for the replacement and/or repair (as applicable) of the Goods that is required as a result.

Liability

1. The maximum aggregate liability of the Owner under or in connection with the Rental Agreement, whether in contract, tort (including negligence), breach of statutory duty or otherwise, must not exceed the Rental Fees paid by the Borrower.
2. Except for the Borrower’s liability to pay the Rental Fees, neither party is liable to the other under or in connection with the Rental Agreement for any loss of profit, data, savings, business, revenue, and/or goodwill, or any indirect, consequential, incidental or special loss or damage of any kind.
3. Where the Borrower is, or represents that it is, renting the Goods for the purposes of trade (as defined in the Consumer Guarantees Act 1993) (CGA), the parties agree that:
   1. to the maximum extent permissible by law, the CGA and any other applicable consumer protection legislation does not apply to the rental of the Goods or the Rental Agreement; and
   2. it is fair and reas onable that the parties are bound by this clause 5.3.
4. Where the Borrower is a consumer (as defined in the CGA), nothing in the Rental Agreement has the effect of contracting out of the CGA or any other consumer protection law that cannot be excluded. To the extent the Owner’s liability cannot be excluded but can be limited, the Owner’s liability will be limited to the Rental Fees paid by the Borrower.
5. Neither party will be responsible, liable, or held to be in breach of the Rental Agreement for any failure to perform its obligations under the Rental Agreement or otherwise, to the extent the failure is directly caused by the other party failing to comply with its obligations under the Rental Agreement, or by the negligence or misconduct of the other party or its personnel.

Termination

1. The Rental Agreement may be terminated by either party on 48 hours’ notice to the other party.
2. The Owner may terminate the Rental Agreement by notice with immediate effect if:
   1. the Borrower fails to comply with any material term of the Rental Agreement;
   2. the Owner believes on reasonable grounds that the Goods may be at risk for any reason whatsoever, including the manner of its use by the Borrower, adverse weather or work conditions, or the Borrower is unable to, or might be unable to, pay any charge, cost or Rental Fee in connection with the Goods under the Rental Agreement; or
   3. any step is taken to appoint a receiver, manager, trustee in administration, liquidator, provisional liquidator, statutory manager, administrator or other like person over the whole or any part of the Borrower’s assets or business.
3. Where the Owner terminates the Rental Agreement under clause 6.2, the Borrower indemnifies the Owner against, and must pay to the Owner upon demand, any cost (including legal costs), claim, damage, expense or liability suffered or incurred by the Owner whether arising directly or indirectly from the Owner acting to recover any Goods hired or Rental Fees payable by the Borrower.
4. Expiry or termination of the Rental Agreement does not affect each party’s rights and obligations accrued before the termination or expiry date.

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