Rental Agreement
BOAT SERVICE AND RENTAL AGREEMENT
SCHEDULE
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TERM |
MEANING |
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we, us or our |
Revelation Rentals (ABN 77 154 816 216) Address: 13 Marina Drive, Shell Cove NSW 2529 Australia |
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Boat |
“Revelation”, 38ft Cabin Cruiser Powerboat |
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Services |
The Services offered are for Charter Hire or Self-drive Hire and are either:
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Commencement Date |
The date this Agreement is accepted in accordance with its terms. |
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Booking Period |
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Fees and Payment Terms |
Self-drive Hire Fees The Hire Fee consists of a rental fee + a fully refundable security deposit. The Payment Terms are as follows:
Cancellation Fees
payable on termination of the Agreement by you in accordance with clause 1.1 Late Fee
Self-Hire Refueling Cost
You agree to pay the amount in the invoice (and any other amount due and payable to us under this Agreement), at the times and using the payment method set out in the invoice. |
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Required Insurances |
If you damage the Boat during the Booking Period:
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Our Disclosures |
Please read this Agreement carefully prior to accepting this Agreement. By accepting this Agreement, you agree that:
This Agreement does not intend to limit your rights and remedies at law, including any of your Consumer Law Rights. |
This Agreement is entered into between us and you (as described in the Schedule), together the Parties and each a Party.
1. Acceptance, Term and Booking Period
1.1 You agree to hire the Boat for the Booking Period.
1.2 This Agreement will commence on the Commencement Date, and end on the date that the Booking Period finishes, unless otherwise terminated earlier in accordance with its terms (the Term).
2. Our obligations
2.1 In consideration of you paying the Hire Fee and you complying with this Agreement, we agree to provide the Services and the Boat to you for the Booking Period, and in accordance with this Agreement.
2.2 We will have no obligation to supply the Services and the Boat to you until we have received the payment of the Bond in full (if applicable).
3. Variations
3.1 All variations to the Services and the Boat to be supplied must be agreed in writing between the Parties and will be priced in accordance with any schedule of rates provided by us, or otherwise as reasonably agreed between the Parties. If we consider that any instruction or direction from you constitutes a variation to the scope of our obligations under this Agreement, then we will not be obliged to comply with such instruction or direction unless agreed in accordance with this clause.
4. Your obligations
4.1 You agree to:
(a) comply with this Agreement, the Manual, our reasonable requests or requirements (including safety procedures and policies), and all applicable laws; and
(b) provide all assistance, information, and all things reasonably necessary to enable us to comply with our obligations under this Agreement and at law.
4.2 You acknowledge and agree that if there is a discrepancy between the terms and conditions in this Agreement and the Manual, the terms and conditions of this Agreement will prevail.
5. Payment
5.1 In consideration for us providing the Services and supplying the Boat, you agree to pay us the Fees, and any other amount payable to us under this Agreement, in accordance with the Payment Terms.
5.2 When applicable, GST is payable on the Fees and will be clearly shown on our invoices. You agree to pay us an amount equivalent to the GST imposed on these charges.
5.3 You will not be entitled to any part of the Services and we will not supply the Boat to you until the Fees have been paid in full.
6. Collection, delivery and return of Boat
6.1 You agree to collect the Boat from the collection location and by the collection time agreed between the Parties.
6.2 You agree to return the Boat to us in the Original Condition, at the return location and by the return time agreed between the Parties.
6.3 You agree that if you do not return the Boat to the return location by the return time agreed between the Parties, we may after a grace period of two hours charge you the Late Fee until you have returned the Boat to us.
6.4 You agree that the Late Fee is a genuine pre-estimate of loss, suffered or incurred by us, as a result of your delay in returning the Boat.
6.5 You agree to comply with any requirements, policies or procedures which apply at the collection location and the return location (as applicable).
7. Fuel for Self-Hire
7.1 For Self-Hire Bookings, we will provide the Boat with a full tank of fuel. You agree to return the Boat with a full tank of fuel at the end of the Booking Period. If you fail to return the Boat with a full tank of fuel, you agree to pay us the Self-Hire Refueling Cost.
8. Navigation Limits for Self-Hire
8.1 For Self-Hire Bookings, you agree to operate the Boat only within the navigation limits and geographical area specified by us. These limits and areas will be communicated to you before or at the time of collection of the Boat. Operating the Boat outside of these specified limits and areas is strictly prohibited.
9. Condition of the Boat
9.1 You agree that you are solely responsible for determining whether the Boat will be suitable and fit for your particular purposes.
9.2 By signing the Original Condition Report, you agree that the Boat has been delivered in good condition, clean, free from major damage or defect, fit for purpose and in accordance with this Agreement (Original Condition), unless expressly set out in the Original Condition Report, in which case the condition set out in the Original Condition Report will be deemed to be the Original Condition.
10. Warranties and Representations
10.1 You represent, warrant and agree that:
(a) all information and documentation that you provide to us in connection with this Agreement is true, correct and complete;
(b) you will not, and will ensure your Personnel do not, operate the Boat under the influence of alcohol or drugs;
(c) you will report any Accident which occurs during the Booking Period to us as soon as possible after it occurs;
(d) you (and to the extent applicable, your Personnel) will provide us with all documentation, information, instructions, cooperate and access reasonably necessary to enable us to provide the Services and supply the Boat;
(e) you will not use the Boat, or allow the Boat to be used, in breach of any laws or the Manual;
(f) you will keep the Boat under your custody and control at all times, and you will not sublease, rent, sell, or otherwise transfer the Boat to any other person; and
(g) you do not enter into this Agreement as a trustee of a trust.
11. Maintenance
11.1 During the Booking Period, in addition to and without limiting any other obligation under this Agreement, you agree to:
(a) only allow our Personnel to service or repair the Boat, unless otherwise agreed to by us;
(b) contact us immediately if there are any technical or mechanical issues with the Boat;
(c) protect and keep the Boat in the Original Condition (including being in good working order and condition), subject to any fair wear or tear; and
(d) prevent the Boat from being subject to any loss, theft, damage, vandalism or destruction and notify us immediately if the Boat is stolen, lost, destroyed, damaged or involved in an Accident.
12. Servicing and Repairs
12.1 You agree that you are responsible for the costs of any repair or replacement of the Boat that is necessary as result of loss, theft, damage, vandalism, misuse or neglect to the Boat during the Booking Period. Where we undertake the repairs or replacement on your behalf, you agree to pay us the costs of the repairs or replacement, as a debt due and immediately payable.
12.2 We agree to undertake a general service check of the Boat, at the times and dates as communicated by us to you, and you agree to do all things necessary to allow us to fulfil our obligations in this clause 12.2. We may, in our absolute discretion, provide you with the use of replacement Boat during any general service check.
13. Title and Risk
13.1 If the Parties agree that you are to collect the Boat from us, risk in the Boat will pass to you when have collected the Boat from the location agreed between the Parties.
13.2 If the Parties agree that we are to deliver the Boat to you, risk in the Boat will pass to you when we have delivered the Boat to the location agreed between the Parties.
13.3 You agree that once you have collected the Boat from the collection location/ the Boat has been delivered to the delivery location (as applicable and as agreed between the Parties), you will be solely responsible for the Boat until it is returned to us and it is in our full custody and control.
13.4 Title in the Boat will at all times remain with us, and you take the Boat as a bare bailee only.
14. Access
14.1 You agree to provide us (and our Personnel) with reasonable access to any premises where the Boat is located, and any other premises reasonably necessary for us to provide the Services, free from harm or risk to health or safety:
(a) at the times and on the dates requested by us to enable us to exercise any rights we may have under this Agreement; and/or
(b) to enable us to comply with our obligations under this Agreement or at law.
15. Security Interest
15.1 You acknowledge and agree that:
(a) this Agreement is a ‘security agreement’ under the PPSA;
(b) this clause 15 creates a security interest in the Boat, and any proceeds from any sale or disposal of the Boat, as security for your obligations to us;
(c) we are a secured party in relation to the Boat and any proceeds in respect of any sale or disposal of the Boat, and we are entitled to register our interest on the relevant register as either (at our discretion) a security interest, and if applicable, a ‘purchase money security interest’, and you must do all things necessary to assist us in effecting the registration;
(d) you must (at your cost), where we request, take all steps that we consider necessary or desirable to ensure our security interest in the Boat and the proceeds is enforceable, and to perfect, or better secure our position under this Agreement, or ensure our priority over all other security interests.
15.2 To the extent the law permits, you waive your right to receive any notice (including notice of a verification statement) that is required by the PPSA, including but not limited to notices under sections 157, 95, 118, 121, 130, 132 or 135. However, this does not prevent us from giving a notice under the PPSA.
15.3 To the extent permitted by law, unless we otherwise notify you, sections 95, 96, 121(4), 125, 130, 132(3)(d), 132(4), 142 and 143 of the PPSA will not apply to enforcement of our security interest.
15.4 If there is any inconsistency between our rights under this clause 15 and your rights under Chapter 4 of the PPSA, this clause prevails.
15.5 You must not disclose any information of the kind referred to in section 275 of the PPSA, to the extent permitted under that section.
15.6 Nothing in this clause 15 is intended as an agreement to subordinate a security interest arising under this Agreement and conditions in favour of any person under section 61 of the PPSA.
15.7 In this clause 15 a ‘security interest’ includes any form or lien, encumbrance or a security interest under the PPSA.
15.8 In this clause 15 terms used in this clause but not defined have the same meaning as in the PPSA.
16. Confidential Information
16.1 Subject to clause 16.2, each Party must (and must ensure that its Personnel do) keep confidential, and not use or permit any unauthorised use of, confidential information provided by the other party.
16.2 Clause 16.1 does not apply where the disclosure is required by law or the disclosure is to a professional adviser in order to obtain advice in relation to matters arising in connection with this Agreement and provided that the disclosing party ensures the adviser complied with the terms of clause 16.1.
16.3 This clause 16 will survive the termination of this Agreement.
17. Australian Consumer Law
17.1 Certain legislation, including the Australian Consumer Law, and similar consumer protection laws and regulations, may confer you with rights, warranties, guarantees and remedies relating to the Services and the hiring out of the Boat by us to you which cannot be excluded, restricted or modified (Consumer Law Rights). To the extent that you maintain Consumer Law Rights, nothing in this Agreement excludes those Consumer Law Rights.
17.2 This clause 17 will survive the termination or expiry of this Agreement.
18. Limitation on Liability
18.1 Despite anything to the contrary but subject to your Consumer Law Rights, to the maximum extent permitted by law:
(a) neither Party will be liable for Consequential Loss;
(b) a Party’s liability for any Liability under this Agreement will be reduced proportionately to the extent the relevant Liability was caused or contributed to by the acts or omissions of the other Party (or any of its Personnel), including any failure by that other Party to mitigate its loss; and
(c) in respect of any failure by us to comply with the relevant Consumer Law Rights, our Liability is limited (at our discretion) to:
(1) replacing the Boat or the supply of equivalent Boat, or the payment of the cost of replacing the Boat or of supplying equivalent Boat;
(2) the repair of the Boat, or the payment of the cost of having the Boat repaired; and/or
(3) supplying the Services again or paying the cost of having the Services supplied again.
(d) our aggregate liability for any Liability arising from or in connection with this Agreement will be limited to the amount of the Fees paid by you to us in respect of the supply of the relevant Boat and the Services to which the Liability relates.
18.2 This clause 18 will survive the termination or expiry of this Agreement.
19. Indemnity
19.1 To the maximum extent permitted by law, you are liable for and you and agree to indemnify us and hold us harmless in respect of any Liability which we may suffer, incur or are otherwise liable for as a result of, or in connection with:
(a) any property loss or damage, death or personal injury, arising from or in connection with your use of the Boat;
(b) any loss (including theft) of, or damage to, the Boat when you are responsible for the risk in the Boat in accordance with clause 13;
(c) any failure to return the Boat in its Original Condition; and
(d) all Liabilities suffered or incurred by us in repossessing or recovering the Boat in accordance with this Agreement.
19.2 This clause 19 will survive the termination or expiry of this Agreement.
20. Termination
20.1 This Agreement will terminate immediately upon written notice by a Party (Non-Defaulting Party) if the other Party (Defaulting Party) breaches a material term of this Agreement and that breach has not been remedied within 10 Business Days of the Defaulting Party being notified of the breach by the Non-Defaulting Party.
20.2 Upon expiry or termination of this Agreement:
(a) we will immediately cease supplying the Services and the Boat to you;
(b) without limiting your Consumer Law Rights, you agree that any payments made by you to us are not refundable to you;
(c) you are to pay for any Fees due and payable prior to termination, and all other amounts due and payable under this Agreement; and
(d) by us pursuant to clause 20.1 you also agree to pay our additional costs, reasonably incurred, and which arise directly from such termination (including recovery fees).
20.3 Termination of this Agreement will not affect any rights or liabilities that a Party has accrued under it.
20.4 This clause 20 will survive the termination or expiry of this Agreement.
21. General
21.1 Amendment: Subject to clause 3, this Agreement may only be amended by written instrument executed by the Parties.
21.2 Assignment: Subject to clause 21.3, a Party must not assign or deal with the whole or any part of its rights or obligations under this Agreement without the prior written consent of the other Party (such consent is not to be unreasonably withheld).
21.3 Assignment of Debt: You agree that we may assign or transfer any debt owed by you to us, arising under or in connection with this Agreement, to a debt collector, debt collection agency, or other third party.
21.4 Disputes: A Party may not commence court proceedings relating to any dispute, controversy or claim arising from, or in connection with, this Agreement (including any question regarding its existence, validity or termination) (Dispute) without first complying with this clause 21.4. A Party claiming that a Dispute has arisen must give written notice to the other Party specifying the nature of the Dispute (Dispute Notice). The Parties must meet (whether in person, by telephone or video conference) within 10 Business Days of service of the Dispute Notice to seek (in good faith) to resolve the Dispute. If the Parties do not resolve the Dispute within 20 Business Days of the date the Dispute Notice was served (or such further period as agreed in writing by the Parties), either Party may refer the matter to mediation, administered by the Australian Disputes Centre in accordance with Australian Disputes Centre Guidelines for Commercial Mediation. Nothing in this clause will operate to prevent a Party from seeking urgent injunctive or equitable relief from a court of appropriate jurisdiction.
21.5 Force Majeure: Neither Party will be liable for any delay or failure to perform their respective obligations under this Agreement if such delay or failure is caused or contributed to by a Force Majeure Event, provided that the Party seeking to rely on the benefit of this clause:
(a) as soon as reasonably practical, notifies the other party in writing details of the Force Majeure Event, and the extent to which it is unable to perform its obligations; and
(b) uses reasonable endeavours to minimise the duration and adverse consequences of the Force Majeure Event.
Where the Force Majeure Event prevents a Party from performing a material obligation under this agreement for a period in excess of 60 days, then the other Party may by notice terminate this Agreement, which will be effective immediately, unless otherwise stated in the notice. This clause will not apply to a Party’s obligation to pay any amount that is due and payable to the other Party under this Agreement.
21.6 Subcontracting: We may subcontract the provision of any part of the Services without your prior written consent. We agree that any subcontracting does not discharge us from any liability under this Agreement and that we are liable for the acts and omissions of our subcontractor.
21.7 Governing law: This Agreement is governed by the laws of New South Wales. Each Party irrevocably and unconditionally submits to the exclusive jurisdiction of the courts operating in New South Wales and any courts entitled to hear appeals from those courts and waives any right to object to proceedings being brought in those courts.
21.8 Notices: Any notice given under this Agreement must be in writing addressed to the addresses set out in this Agreement, or the relevant address last notified by the recipient to the Parties in accordance with this clause. Any notice may be sent by standard post or email, and will be deemed to have been served on the expiry of 48 hours in the case of post, or at the time of transmission in the case of transmission by email.
21.9 Relationship of Parties: This Agreement is not intended to create a partnership, joint venture, employment or agency relationship between the Parties.
22. Definitions
In this Agreement, unless the context otherwise requires, capitalised terms have the meanings given to them in the Schedule, and:
- Accident means any collision or contact between the Boat and any other object, including but not limited to a vehicle, animal or person, or any incident or occurrence that results in the Boat being damaged, lost or destroyed or any other vehicle, property, thing, animal or person being injured, killed, damaged, lost or destroyed (as applicable).
- ACL or Australian Consumer Law means the Australian consumer laws set out in Schedule 2 of the Competition and Consumer Act 2010 (Cth), as amended, from time to time.
- Agreement means these terms and conditions and any documents, attached to, or referred to, in it.
- Business Days means a day on which banks are open for general banking business in New South Wales, excluding Saturdays, Sundays and public holidays.
- Charter means a charter where you hire the Boat and we operate the vessel with professional crew, and may provide Services.
- Commencement Date means the date this Agreement is accepted in accordance with its terms.
- Consequential Loss includes any consequential loss, special or indirect loss, real or anticipated loss of profit, loss of benefit, loss of revenue, loss of business, loss of goodwill, loss of opportunity, loss of savings, loss of reputation, loss of use and/or loss or corruption of data, whether under statute, contract, equity, tort (including negligence), indemnity or otherwise. However, your obligation to pay us the Price will not constitute “Consequential Loss”.
- Consumer Law Rights has the meaning given in clause 17.1.
- Dispute has the meaning given in clause 21.4.
- Boat means the Boat and any accessories the subject of this Agreement, as particularised in the Schedule.
- Force Majeure Event means any event or circumstance which is beyond a Party’s reasonable control including but not limited to, acts of God including fire, hurricane, typhoon, earthquake, landslide, tsunami, mudslide or other catastrophic natural disaster, civil riot, civil rebellion, revolution, terrorism, insurrection, militarily usurped power, act of sabotage, act of a public enemy, war (whether declared or not) or other like hostilities, ionising radiation, contamination by radioactivity, nuclear, chemical or biological contamination, any widespread illness, quarantine or government sanctioned ordinance or shutdown, pandemic (including COVID-19 and any variations or mutations to this disease or illness) or epidemic.
- Liability means any expense, cost, liability, loss, damage, claim, notice, entitlement, investigation, demand, proceeding or judgment (whether under statute, contract, equity, tort (including negligence), indemnity or otherwise), howsoever arising, whether direct or indirect and/or whether present, unascertained, future or contingent and whether involving a third party or a Party to this Agreement or otherwise.
- Manual means any manual, provided by us to you, as to the operation, use, restrictions, guidelines or safety instructions for the Boat.
- Original Condition has the meaning given in clause 10.
- Original Condition Report means the report detailing the condition of the Boat.
- Personnel means, in respect of a Party, any of its employees, consultants, suppliers, subcontractors or agents, and in respect of you includes any guests you invite onto the Boat.
- PPSA means the Personal Property Securities Act 2009 (Cth).
- Self-Hire means you rent the Boat and we do not provide any further services or professional crew.
- Services means the services set out in the Schedule, as adjusted in accordance with this Agreement.
- Schedule means the schedule to this Agreement.