1.1 “Miami Portable Cooling” shall mean Miami Portable Cooling LLC, its successors and assigns or any person acting on behalf of and with the authority of Miami Port-A-Cool.
1.2 “Client” shall mean the Client or any person acting on behalf of and with the authority of the Client.
1.3 “Guarantor” mean s that person (or persons), or entity who agrees herein to be liable for the debts of the Client on a principal debtor basis.
1.4 “Equipment” shall mean Equipment supplied for rental by Miami Portable Cooling to the Client (and where the context so permits shall include any supply of services) and is as described on the invoices, quotation, authority to hire, or any other work authorisation forms as provided by Miami Port-A-Cool to the Client.
1.5 “Minimum Hire Period” shall mean the Minimum Hire Period as described on the invoices, quotation, authority to hire, or any other forms as provided by Miami Portable Cooling to the Client.
1.6 “Price” shall mean the cost of the hire of the Equipment as agreed between Miami Portable Cooling and the Client subject to clause 4 of this contract.
2.1 Any instructions received by Miami Portable Cooling from the Client for the hire of Equipment and/or the Client’s acceptance of Equipment supplied on hire by Miami Port-A-Cool shall constitute acceptance of the terms and conditions contained herein.
2.2 Where more than one Client has entered into this agreement, the Clients shall be jointly and severally liable for all payments of the Price.
2.3 Upon acceptance of these terms and conditions by the Client the terms and conditions are irrevocable and can only be amended with the written consent of Miami Portable Cooling.
2.4 The Client shall give Miami Portable Cooling not less than fourteen (14) days prior written notice of any proposed change of ownership of the Client or any change in the Client’s name and/or any other change in the Client’s details (including but not limited to, changes in the Client’s address, facsimile number, or business practice). The Client shall be liable for any loss incurred by Miami Portable Cooling as a result of the Client’s failure to comply with this clause.
3. PRICE AND PAYMENT
3.1 At Miami Portable Cooling’s sole discretion the Price shall be either;
(a) as indicated on invoices provided by Miami Portable Cooling to the Client in respect of Equipment supplied on hire; or
(b) Miami Port-A-Cool’s current Price, at the date of delivery of the Equipment, according to Miami Port-A-Cool’s current Price list; or
(c) Miami Port-A-Cool’s quoted Price (subject to clause 4.2) which shall be binding upon Miami Port-A-Cool provided that the Client shall accept in writing Miami Port-A-Cool’s quotation within fourteen (14) days.
3.2 Miami Port-A-Cool reserves the right to change the Price in the event of a variation to Miami Port-A-Cool’s quotation.
3.3 Miami Port-A-Cool shall be entitled to (at their sole discretion) charge the Client for any service visits where Equipment breakdown results from the Client’s negligence or from a lack of routine maintenance.
3.4 At Miami Port-A-Cool’s sole discretion:
(a) payment shall be due on delivery of the Equipment; or
(b) payment shall be due before delivery of the Equipment; or
(c) payment for approved Clients shall be due thirty (30) days following the end of the month.
3.5 Time for payment for the Equipment shall be of the essence and will be stated on the invoice or any other forms. If no time is stated then payment shall be due seven (7) days following the date of the invoice.
3.6 The date upon which the Client advises of termination shall in all cases be treated as a full day’s hire.
3.7 Payment will be made by cash, or by cheque, or by bank cheque, or by credit card (plus a surcharge of up to two and a half percent (2.5%) of the Price), or by direct credit, or by any other method as agreed to between the Client and Miami Port-A-Cool.
3.8 Taxes and duties that may be applicable shall be added to the Price except when they are expressly included in the Price.
4. RENTAL PERIOD
4.1 For Equipment in which a timing device is installed the hire period shall be the number of hours or part thereof recorded on the timing device whilst the Equipment is in the Client’s possession.
4.2 Where the Equipment does not have a timing device installed hire charges shall commence from the time the stated on the quotation, authority to hire, or any other work authorisation forms as provided by Miami Port-A-Cool to the Client and will continue until either the Client notifies Miami Port-A-Cool (by fax or email) that the Equipment is available for collection or the Equipment is returned to Miami Port-A-Cool’s premises, and/or until the expiry of the Minimum Hire Period, whichever last occurs. The off-hire receipt will be issued when the Equipment is collected by Miami Port-A-Cool or returned to Miami Port-A-Cool’s premises.
4.3 No allowance whatever can be made for time during which the Equipment is not in use for any reason, unless PCSA confirms special prior arrangements in writing. In the event of Equipment breakdown provided the Client notifies Miami Port-A-Cool immediately, hiring charges will not be payable during the time the Equipment is not working, unless the condition is due to negligence or misuse on the part of or attributable to the Client.
5. DELIVERY OF EQUIPMENT
5.1 At Miami Port-A-Cool’s sole discretion delivery of the Equipment shall take place when:
(a) the Client takes possession of the Equipment at Miami Port-A-Cool’s address; or
(b) the Client takes possession of the Equipment at the Client’s address (in the event that the Equipment is delivered by Miami Port-A-Cool or nominated carrier).
5.2 At Miami Port-A-Cool’s sole discretion the costs of delivery are:
(a) in addition to the Price; or
(b) for the Client’s account.
5.3 Delivery of the Equipment to a third party nominated by the Client is deemed to be delivery to the Client for the purposes of this agreement.
5.4 The Client shall be responsible for free access by Miami Port-A-Cool to the site on which the Equipment is located. If there are any delays due to free access not being available then the Client shall be responsible and shall reimburse Miami Port-A-Cool for all lost hire fees associated with the Equipment being unavailable. The Client shall also be responsible for all other expenses and costs incurred by Miami Port-A-Cool due to delays in access to the Equipment.
5.5 The failure of Miami Port-A-Cool to deliver shall not entitle either party to treat this contract as repudiated.
5.6 Miami Port-A-Cool shall not be liable for any loss or damage whatever due to failure by Miami Port-A-Cool to deliver the Equipment (or any of it) promptly, or at all, where due to circumstances beyond the control of Miami Port-A-Cool.
6.1 Miami Port-A-Cool retains property in the Equipment nonetheless all risk for the Equipment passes to the Client on delivery.
6.2 The Client accepts full responsibility for the safekeeping of the Equipment and indemnifies Miami Port-A-Cool for all loss, theft, or damage to the Equipment howsoever caused and without limiting the generality of the foregoing whether or not such loss, theft, or damage is attributable to any negligence, failure, or omission of the Client.
6.3 The Client will insure, or self insure, Miami Port-A-Cool’s interest in the Equipment against physical loss or damage including, but not limited to, the perils of accident, fire, theft and burglary and all other usual risks and will effect adequate Public Liability Insurance covering any loss, damage or injury to property arising out of the Equipment. Further the Client will not use the Equipment nor permit it to be used in such a manner as would permit an insurer to decline any claim.
6.4 The Client accepts full responsibility for and shall keep Miami Port-A-Cool indemnified against all liability in respect of all actions, proceedings, claims, damages, costs and expenses in respect of any injury to persons or damage to property arising out of the use of the Equipment during the hire period however arising and whether or not arising from any negligence, failure or omission of the Client or any other persons.
7.1 The Equipment is and will at all times remain the absolute property of Miami Port-A-Cool.
7.2 If the Client fails to return the Equipment to Miami Port-A-Cool then Miami Port-A-Cool or Miami Port-A-Cool’s agent may enter upon and into land and premises owned, occupied or used by the Client, or any premises where the Equipment is situated as the invitee of the Client and take possession of the Equipment, without being responsible for any damage thereby caused.
7.3 The Client is not authorised to pledge Miami Port-A-Cool’s credit for repairs to the Equipment or to create a lien over the Equipment in respect of any repairs.
8.1 The Client shall inspect the Equipment on delivery and shall within forty eight (48) hours notify Miami Port-A-Cool of any alleged defect, shortage in quantity, damage or failure to comply with the description or quote. The Client shall afford Miami Port-A-Cool an opportunity to inspect the Equipment (at Miami Port-A-Cool’s premises) within a reasonable time following delivery if the Client believes the Equipment is defective in any way. If the Client shall fail to comply with these provisions the Equipment shall be presumed to be free from any defect or damage. For defective Equipment, which Miami Port-A-Cool has agreed in writing that the Client is entitled to reject, Miami Port-A-Cool’s liability is limited to either repairing or replacing the Equipment, except where the Client has hired Equipment as a consumer within the meaning of the Trade Practices Act 1974 (CWlth) or the Fair Trading Acts of the relevant state or territories of Australia, and is therefore also entitled to, at the consumer’s discretion either a refund of the hire price of the Equipment, or repair of the Equipment, or replacement of the Equipment.
10.1 No Warranty is provided by Miami Port-A-Cool in respect of the condition of the Equipment or its fitness for any particular purpose. The Client shall indemnify and hold harmless Miami Port-A-Cool in respect of all claims arising out of use of the Equipment.
10. CLIENTS RESPONSABILITIES
11.1 The Client shall:
(a) at all times arrange a suitable supply of electricity for use with the Equipment;
(b) ensure that secure supplies to computer and other sensitive equipment are not jeopardised by the use of the Equipment;
(c) operate the Equipment safely, strictly in accordance with the law, only for its intended use, and in accordance with any manufacturer’s instruction (whether supplied by Miami Port-A-Cool or posted on the Equipment) or the operation instructions of the Equipment, with regard to fuse rating and type, and switching on the Equipment;
(d) keep themselves acquainted with the state and condition of the Equipment and ensure it remains safe, serviceable and clean. Routine maintenance required for the continued efficient operation of the Equipment shall be carried out by the Client in accordance with the Equipment’s operation manual;
(e) notify Miami Port-A-Cool immediately by telephone of the full circumstances of any mechanical breakdown or accident. The Client is not absolved from the requirements to safeguard the Equipment by giving such notification;
(f) satisfy itself at commencement that the Equipment is suitable for its purposes;
(g) comply with all occupational health and safety laws relating to the Equipment and its operation;
(h) on termination of the hire, the Client shall deliver the Equipment complete with all parts and accessories clean and in good order as delivered, fair wear and tear accepted, to Miami Port-A-Cool;
(i) not alter or make any additions to the Equipment including but without limitation altering, make any additions to, defacing or erasing any identifying mark, plate or number on or in the Equipment or in any other manner interfere with the Equipment;
(j) not fix any of the Equipment in such a manner as to make it legally a fixture forming part of any freehold.
11.2 Immediately on request by Miami Port-A-Cool the Client will pay:
(a) the new list price of any Equipment that is for whatever reason destroyed, written off or not returned to PCSA;
(b) all costs incurred in cleaning the Equipment;
(c) all costs of repairing any damage caused by the ordinary use of the Equipment up to an amount equal to ten percent (10%) of the new list price of the Equipment;
(d) the cost of repairing any damage to the Equipment caused by the negligence of the Client or the Client’s agent;
(e) the cost of repairing any damage to the Equipment caused by vandalism, or (in Miami Port-A-Cool’s reasonable opinion) in any way whatsoever other than by the ordinary use of the Equipment by the Client.