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1.1 “TPHP” means Corbley Pty Ltd (as Trustee for A & M Corbley Trust) T/A The Party Hire Place, its successors and assigns or any person acting on behalf of and with the authority of Corbley Pty Ltd (as Trustee for A & M Corbley Trust) T/A The Party Hire Place.
1.2 “Client” means the Client or any person acting on behalf of and with the authority of the Client, as specified in any invoice, document or order, and if there is more than one Client is a reference to each hirer jointly and severally.
1.3 “Equipment” means all Equipment (including any accessories) supplied on hire by TPHP to the Client (and where the context so permits shall include any incidental supply of services). The Equipment shall be as described on the invoices, quotation, authority to hire, or any other work authorisation forms as provided by TPHP to the Client.
1.4 “Minimum Hire Period” means the Minimum Hire Period as described on the invoices, quotation, authority to hire, or any other forms as provided by TPHP to the Client.
1.5 “Price” means the cost of the hire of the Equipment as agreed between TPHP and the Client subject to clause 4 of this contract.
2.1 The Client is taken to have exclusively accepted and is immediately bound, jointly and severally, by these terms and conditions if the Client places an order for, or accepts delivery of, the Equipment.
2.2 These terms and conditions may only be amended with TPHP’s consent in writing and shall prevail to the extent of any inconsistency with any other document or agreement between the Client and TPHP.
3 Change in Control
3.1 The Client shall give TPHP not less than fourteen (14) days prior written notice of any proposed change of ownership of the Client and/or any other change in the Client’s details (including but not limited to, changes in the Client’s name, address, contact phone or fax number/s, or business practice). The Client shall be liable for any loss incurred by TPHP as a result of the Client’s failure to comply with this clause.
4 Price and Payment
4.1 At TPHP’s sole discretion the Price shall be either;
(a) as indicated on invoices provided by TPHP to the Client in respect of Equipment supplied on hire; or
(b) TPHP’s current Price, at the date of delivery of the Equipment, according to TPHP’s current Price list; or
(c) TPHP’s quoted Price (subject to clause 4.2) which shall be binding upon TPHP provided that the Client shall accept in writing TPHP’s quotation within thirty (30) days.
4.2 The TPHP reserves the right to change the Price in the event of a variation to TPHP’s quotation.
4.3 At TPHP’s sole discretion:
(a) a non-refundable deposit may be required; and/or
(b) a bond may be required, which shall be refunded upon return of the Equipment in a condition acceptable to TPHP.
4.4 Time for payment for the Equipment being of the essence, the Price will be payable by the Client on the date/s determined by TPHP, which may be:
(a) on delivery of the Equipment; or
(b) before delivery of the Equipment; or
(c) the date specified on any invoice or other form as being the date for payment; or
(d) failing any notice to the contrary, the date which is seven (7) days following the date of any invoice given to the Client by TPHP.
4.5 Payment may be made by cash, cheque, bank cheque, electronic/on-line banking, credit card (plus a surcharge of two and a half percent (2.5%) of the Price) or by any other method as agreed to between the Client and TPHP.
4.6 Unless otherwise stated the Price does not include GST. In addition to the Price the Client must pay to TPHP an amount equal to any GST TPHP must pay for any supply of Equipment on hire by TPHP under this or any other agreement. The Client must pay GST, without deduction or set off of any other amounts, at the same time and on the same basis as the Client pays the Price. In addition the Client must pay any other taxes and duties that may be applicable in addition to the Price except where they are expressly included in the Price.
5 Hire Period
5.1 Hire charges shall commence from the time the Equipment departs from TPHP’s premises, and will continue until the return of the Equipment to TPHP’s premises, and/or until the expiry of the Minimum Hire Period, whichever last occurs.
5.2 The date upon which the Client advises of termination shall in all cases be treated as a full day’s hire.
5.3 No allowance whatsoever can be made for time during which the Equipment is not in use for any reason, unless TPHP confirms special prior arrangements in writing. In the event of Equipment breakdown, and provided the Client notifies TPHP 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.
6.1 Delivery (“Delivery”) of the Equipment is taken to occur at the time that TPHP (or TPHP’s nominated carrier) delivers the Equipment to the Client’s nominated address.
6.2 At TPHP’s sole discretion, the cost of delivery is in addition to the Price.
6.3 Where TPHP is to deliver the Equipment the Client shall make all arrangements necessary to be present at the address in order to take delivery of the Equipment whenever it is tendered for delivery. In the event that the Client is unable to take delivery of the Equipment as arranged, or in the event Client (or their nominated agent) is not present at the address, then TPHP shall be entitled to charge a reasonable fee for redelivery.
6.4 The TPHP may deliver the Equipment by separate instalments. Each separate instalment shall be invoiced and paid for in accordance with the provisions in these terms and conditions.
6.5 Any time or date given by TPHP to the Client is an estimate only. The Client must still accept delivery of the Equipment even if late and TPHP will not be liable for any loss or damage incurred by the Client as a result of the delivery being late.
7.1 The TPHP retains property in the Equipment nonetheless all risk for the Equipment passes to the Client on delivery.
7.2 The Client accepts full responsibility for the safekeeping of the Equipment and indemnifies TPHP 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.
7.3 The Client will insure, or self insure, TPHP’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.
7.4 The Client accepts full responsibility for and shall keep TPHP indemnified against all liability in respect of all actions, proceedings, claims, damages, costs and expenses in respect of any injury to persons, damage to property, or otherwise arising out of the use of the Equipment during the hire period and whether or not arising from any negligence, failure or omission of the Client or any other persons.
8.1 The Equipment is and will at all times remain the absolute property of TPHP, and the Client must return the Equipment to TPHP upon request to do so.
8.2 If the Client fails to return the Equipment to TPHP as is required under this agreement or when requested to do so, then TPHP or TPHP’s agent may (as the invitee of the Client) enter upon and into any land and premises owned, occupied or used by the Client, or any premises where the Equipment is situated and take possession of the Equipment, without being responsible for any damage thereby caused. Any costs incurred by TPHP as a result of TPHP so repossessing the Equipment shall be charged to the Client.
8.3 The Client is not authorised to pledge TPHP’s credit for repairs to the Equipment or to create a lien over the Equipment in respect of any repairs.
9 Personal Property Securities Act 2009 (“PPSA”)
9.1 In this clause financing statement, financing change statement, security agreement, and security interest has the meaning given to it by the PPSA.
9.2 Upon assenting to these terms and conditions in writing the Client acknowledges and agrees that these terms and conditions constitute a security agreement for the purposes of the PPSA and creates a security interest in all Equipment that has previously been supplied and that will be supplied in the future by TPHP to the Client.
9.3 The Client undertakes to:
(a) promptly sign any further documents and/or provide any further information (such information to be complete, accurate and up-to-date in all respects) which TPHP may reasonably require to:
(i) register a financing statement or financing change statement in relation to a security interest on the Personal Property Securities Register;
(ii) register any other document required to be registered by the PPSA; or
(iii) correct a defect in a statement referred to in clause 9.3(a)(i) or 9.3(a)(ii);
(b) indemnify, and upon demand reimburse, TPHP for all expenses incurred in registering a financing statement or financing change statement on the Personal Property Securities Register established by the PPSA or releasing any Equipment charged thereby;
(c) not register a financing change statement in respect of a security interest without the prior written consent of TPHP;
(d) not register, or permit to be registered, a financing statement or a financing change statement in relation to the Equipment in favour of a third party without the prior written consent of TPHP.
9.4 The TPHP and the Client agree that sections 96, 115 and 125 of the PPSA do not apply to the security agreement created by these terms and conditions.
9.5 The Client waives their rights to receive notices under sections 95, 118, 121(4), 130, 132(3)(d) and 132(4) of the PPSA.
9.6 The Client waives their rights as a grantor and/or a debtor under sections 142 and 143 of the PPSA.
9.7 Unless otherwise agreed to in writing by TPHP, the Client waives their right to receive a verification statement in accordance with section 157 of the PPSA.
9.8 The Client must unconditionally ratify any actions taken by TPHP under clauses 9.3 to 9.5.
9.9 Subject to any express provisions to the contrary nothing in these terms and conditions is intended to have the effect of contracting out of any of the provisions the PPSA.
10 Security and Charge
10.1 In consideration of TPHP agreeing to supply Equipment, the Client charges all of its rights, title and interest (whether joint or several) in any land, realty or other assets capable of being charged, owned by the Client either now or in the future, to secure the performance by the Client of its obligations under these terms and conditions (including, but not limited to, the payment of any money).
10.2 The Client indemnifies TPHP from and against all TPHP’s costs and disbursements including legal costs on a solicitor and own client basis incurred in exercising TPHP’s rights under this clause.
10.3 The Client irrevocably appoints TPHP and each director of TPHP as the Client’s true and lawful attorney/s to perform all necessary acts to give effect to the provisions of this clause 10 including, but not limited to, signing any document on the Client’s behalf.
11 Defects, Warranties and Returns, Competition and Consumer Act 2010 (CCA)
11.1 The Client must inspect the Equipment on delivery and must within forty-eight (48) hours of delivery notify TPHP in writing of any evident defect/damage, shortage in quantity, or failure to comply with the description or quote. The Client must notify any other alleged defect in the Equipment as soon as reasonably possible after any such defect becomes evident. Upon such notification the Client must allow TPHP to inspect the Equipment.
11.2 Under applicable State, Territory and Commonwealth Law (including, without limitation the CCA), certain statutory implied guarantees and warranties (including, without limitation the statutory guarantees under the CCA) may be implied into these terms and conditions (Non-Excluded Guarantees).
11.3 The TPHP acknowledges that nothing in these terms and conditions purports to modify or exclude the Non-Excluded Guarantees.
11.4 Except as expressly set out in these terms and conditions or in respect of the Non-Excluded Guarantees, TPHP makes no warranties or other representations under these terms and conditions including but not limited to the quality or suitability of the Equipment. The TPHP’s liability in respect of these warranties is limited to the fullest extent permitted by law. 11.5 If the Client is a consumer within the meaning of the CCA, TPHP’s liability is limited to the extent permitted by section 64A of Schedule 2.
11.6 If TPHP is required to rectify, re-supply, or pay the cost of re-supplying any services or Equipment under this clause or the CCA, but is unable to do so, then the owner may refund any money the Client has paid for the services or Equipment but only to the extent that such refund shall take into account the value of any services or Equipment and consumables which have been provided to the Client which were not defective.
11.7 If the Client is not a consumer within the meaning of the CCA, TPHP’s liability for any defect or damage in the services or Equipment is:
(a) limited to the value of any express warranty or warranty card provided to the Client by TPHP at TPHP’s sole discretion;
(b) limited to any warranty to which TPHP is entitled, if TPHP did not manufacture the Equipment;
(c) otherwise negated absolutely.
11.8 Notwithstanding clauses 11.1 to 11.7 but subject to the CCA, TPHP shall not be liable for any defect or damage which may be caused or partly caused by, or arise as a result of:
(a) the Client failing to properly maintain or store any Equipment;
(b) the Client interfering with the Equipment in any way without TPHP’s written approval to do so;
(c) the Client using the Equipment for any purpose other than that for which it was designed;
(d) the Client continuing the use of the Equipment after any defect became apparent or should have become apparent to a reasonably prudent operator or user;
(e) the Client failing to follow any instructions or guidelines provided by TPHP;
(f) fair wear and tear, any accident, or act of God.
12 Client’s Responsibilities
12.1 The Client shall:
(a) satisfy itself at commencement that the Equipment is suitable for its purposes.
(b) at all times, keep the Equipment within their control, not assign the benefit of this Agreement nor be entitled to lien over the Equipment.
(c) not fix any of the Equipment in such a manner as to make it legally a fixture forming part of any freehold.
(d) subject to clause 13:
(i) ensure that all persons assembling or disassembling the Equipment are suitably instructed.
(ii) only use the Equipment in suitable weather conditions, where there are no heavy winds or weather warnings.
(iii) be fully responsible for ensuring that the ground on which the Equipment will be assembled is stable, dry, clear of sharp or damaging objects, will not cause any damage to the Equipment, and is not prone to flooding.
(iv) ensure that the Equipment is assembled a safe distance from other obstructions such as trees, which may damage the Equipment.
(v) upon pitching the Equipment, ensure all lines are tight in order to avoid sagging, which may compromise the Equipment.
(vi) use the Equipment properly, safely, and as intended, including using all ground sheets, guy ropes, poles, zips and any other safety structures.
(e) maintain and return the Equipment dry, clean, empty (where applicable), and in the same state as when received by the Client. In the event the Equipment (or part thereof) is lost, not returned, damaged (including bent pegs), or unclean in any way, then cleaning, repair and/or replacement charges may apply in the amount that TPHP reasonably determines.
(f) ensure that the Equipment will only be used by the number of occupants/users disclosed to, and accepted by, TPHP.
(g) not alter or make any additions to the Equipment, including but without limitation altering, make any additions to, defacing or erasing any identifying mark, or number on or in the Equipment or in any other manner interfere with the Equipment.
(h) not exceed the recommended or legal load and capacity limits of the Equipment.
(i) not use or carry any illegal, prohibited or dangerous substance in or on the Equipment.
(j) not use naked flames, gas fires, gas appliances, heaters, candles or other hot things in or around the Equipment.
(k) not use cooking or other gas appliances of any kind inside or around the Equipment.
(l) not use aerosols and chemicals, including hairspray and insect repellent, inside or near the Equipment. These substances will damage the Good’s waterproofing.
(m) agree that, if necessary, to clean the Equipment only with a soft damp cloth. The Client further agrees to never use soap, detergents, chemicals, abrasives or rough brushes or fabrics to clean the Equipment, as these may damage the Equipment. The Client accepts that under no circumstances is the Equipment to be machine washed, tumble-dried or wrung out.
(n) not allow pets inside or around the Equipment.
(o) notify TPHP 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.
(p) indemnify and hold harmless TPHP in respect of all claims arising out of the Client’s use of the Equipment.
12.2 Immediately on request by TPHP the Client will pay:
(a) the new list price of any Equipment (or part thereof) that is for whatever reason destroyed, written off or not returned to TPHP.
(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 TPHP’s reasonable opinion) in any way whatsoever other than by the ordinary use of the Equipment by the Client.
(f) any lost hire fees TPHP would have otherwise been entitled to for the Equipment, under this Agreement, or any other hire agreement.
(g) the cost of fuels and consumables provided by TPHP and used by the Client.
(h) any insurance excess payable in relation to a claim made by either the Client or TPHP in relation to any damage caused by, or to, the hire Equipment whilst the same is hired by the Client and irrespective of whether charged by the Client’s insurers or TPHP’s
13 Assembly and/or Disassembly by TPHP
These terms and conditions shall be applicable where TPHP assembles and/or disassembles the Equipment:
13.1 The Client will be responsible for:
(a) ensuring that there is adequate access, time and space for set-up, delivery, pack-up, pick-up and that the designated area is safe and free of obstructions or hazards;
(b) ensuring that the appropriate permissions to use the site, and install and remove the Equipment, are granted, and informing any site owner of the potential property disturbance which may arise from the Equipment or the setup thereof;(c) locating, marking and protecting any underground utilities, other surfaces and objects.
13.2 The TPHP will under no circumstances be held liable for damage to items left in, or around, the Equipment.
13.3 In the event of any delays due to free access being unavailable, the Client shall reimburse TPHP for all associated costs (including, but not limited to, lost hire fees and labour costs, which will be charged at reasonable, or at TPHP’s prevailing, rates.
13.4 The risk of security and all weather related risk remains with the Client until the Equipment are actually disassembled by TPHP.
14 The TPHP’s Right of Entry and Inspection
14.1 The TPHP reserves the right to inspect the Equipment at any time during the Hire Period.
14.2 The Client authorises TPHP, its agents and representatives, at all times without notice to enter onto, and to remain on, (at all necessary times) any premises where the Equipment is located in order to inspect and/or collect the Equipment without being liable in any way for trespass. The Client also assigns TPHP all the Client’s rights to enter onto, and remain on, such premises until the Equipment have been inspected and/or collected.
15 Wet Hire
15.1 “Wet Hire” shall mean that the Equipment is hired with an operator who shall at all times remain an employee of TPHP.
15.2 In the event of “wet” hire of the Equipment the operator of the Equipment remains an employee of TPHP and operates the Equipment in accordance with the Client’s instructions. As such TPHP shall not be liable for any actions of the operator in following the Client’s instructions.
16.1 The TPHP may cancel these terms and conditions or cancel delivery of Equipment at any time before the Equipment is delivered by giving written notice to the Client. On giving such notice TPHP shall repay to the Client any sums paid in respect of the Price. The TPHP shall not be liable for any loss or damage whatsoever arising from such cancellation.
16.2 In the event that the Client cancels delivery of the Equipment the Client shall be liable for any and all loss incurred (whether direct or indirect) by TPHP as a direct result of the cancellation (including, but not limited to, any loss of profits).
17 Default and Consequences of Default
17.1 Interest on overdue invoices shall accrue daily from the date when payment becomes due, until the date of payment, at a rate of two and one half percent (2.5%) per calendar month (and at TPHP’s sole discretion such interest shall compound monthly at such a rate) after as well as before any judgment.
17.2 If the Client owes TPHP any money the Client shall indemnify TPHP from and against all costs and disbursements incurred by TPHP in recovering the debt (including but not limited to internal administration fees, legal costs on a solicitor and own client basis, TPHP’s contract default fee, and bank dishonour fees).
17.3 Without prejudice to any other remedies TPHP may have, if at any time the Client is in breach of any obligation (including those relating to payment) under these terms of hire TPHP may repossess the Equipment as per clause 8.2, or suspend or terminate the supply of Equipment to the Client and any of its other obligations under the terms and conditions. The TPHP will not be liable to the Client for any loss or damage the Client suffers because TPHP has exercised its rights under this clause.
17.4 Without prejudice to TPHP’s other remedies at law TPHP shall be entitled to cancel all or any part of any order of the Client which remains unperformed in addition to and without prejudice to any other remedies TPHP may have and all amounts owing to TPHP shall, whether or not due for payment, become immediately payable in the event that:
(a) any money payable to TPHP becomes overdue, or in TPHP’s opinion the Client will be unable to meet its payments as they fall due; or
(b) the Client becomes insolvent, convenes a meeting with its creditors or proposes or enters into an arrangement with creditors, or makes an assignment for the benefit of its creditors; or
(c) a receiver, manager, liquidator (provisional or otherwise) or similar person is appointed in respect of the Client or any asset of the Client.
18 Privacy Act 1988
18.1 The Client agrees for TPHP to obtain from a credit reporting agency a credit report containing personal credit information about the Client in relation to credit provided by TPHP.
18.2 The Client agrees that TPHP may exchange information about the Client with those credit providers either named as trade referees by the Client or named in a consumer credit report issued by a credit reporting agency for the following purposes:
(a) to assess an application by the Client; and/or
(b) to notify other credit providers of a default by the Client; and/or
(c) to exchange information with other credit providers as to the status of this credit account, where the Client is in default with other credit providers; and/or
(d) to assess the creditworthiness of the Client.
The Client understands that the information exchanged can include anything about the Client’s creditworthiness, credit standing, credit history or credit capacity that credit providers are allowed to exchange under the Privacy Act 1988.
18.3 The Client consents to TPHP being given a consumer credit report to collect overdue payment on commercial credit (Section 18K(1)(h) Privacy Act 1988).
18.4 The Client agrees that personal credit information provided may be used and retained by TPHP for the following purposes (and for other purposes as shall be agreed between the Client and TPHP or required by law from time to time):
(a) the provision of Equipment on Hire; and/or
(b) the marketing of services by TPHP, its agents or distributors; and/or
(c) analysing, verifying and/or checking the Client’s credit, payment and/or status in relation to the provision of Equipment on hire; and/or
(d) processing of any payment instructions, direct debit facilities and/or credit facilities requested by the Client; and/or
(e) enabling the daily operation of Client’s account and/or the collection of amounts outstanding in the Client’s account in relation to the hire of the Equipment.
18.5 The TPHP may give information about the Client to a credit reporting agency for the following purposes:
(a) to obtain a consumer credit report about the Client;
(b) allow the credit reporting agency to create or maintain a credit information file containing information about the Client.
18.6 The information given to the credit reporting agency may include:
(a) personal particulars (the Client’s name, sex, address, previous addresses, date of birth, name of employer and driver’s licence number);(b) details concerning the Client’s application for credit or commercial credit and the amount requested;
(c) advice that TPHP is a current credit provider to the Client;
(d) advice of any overdue accounts, loan repayments, and/or any outstanding monies owing which are overdue by more than sixty (60) days, and for which debt collection action has been started;
(e) that the Client’s overdue accounts, loan repayments and/or any outstanding monies are no longer overdue in respect of any default that has been listed;
(f) information that, in the opinion of TPHP, the Client has committed a serious credit infringement (that is, fraudulently or shown an intention not to comply with the Client’s credit obligations);
(g) advice that cheques drawn by the Client for one hundred dollars ($100) or more, have been dishonoured more than once;
(h) that credit provided to the Client by TPHP has been paid or otherwise discharged.
19.1 The failure by TPHP to enforce any provision of these terms and conditions shall not be treated as a waiver of that provision, nor shall it affect TPHP’s right to subsequently enforce that provision. If any provision of these terms and conditions shall be invalid, void, illegal or unenforceable the validity, existence, legality and enforceability of the remaining provisions shall not be affected, prejudiced or impaired.
19.2 These terms and conditions and any contract to which they apply shall be governed by the laws of the state in which TPHP has its principal place of business, and are subject to the jurisdiction of the courts in that state.
19.3 Subject to clause 11, TPHP shall be under no liability whatsoever to the Client for any indirect and/or consequential loss and/or expense (including loss of profit) suffered by the Client arising out of a breach by TPHP of these terms and conditions (alternatively TPHP’s liability shall be limited to damages which under no circumstances shall exceed the Price of the Equipment hire).
19.4 The Client shall not be entitled to set off against, or deduct from the Price, any sums owed or claimed to be owed to the Client by TPHP nor to withhold payment of any invoice because part of that invoice is in dispute.
19.5 The TPHP may license or sub-contract all or any part of its rights and obligations without the Client’s consent.
19.6 The Client agrees that TPHP may amend these terms and conditions at any time. If TPHP makes a change to these terms and conditions, then that change will take effect from the date on which TPHP notifies the Client of such change. The Client will be taken to have accepted such changes if the Client makes a further request for TPHP to provide any Equipment to the Client.
19.7 Neither party shall be liable for any default due to any act of God, war, terrorism, strike, lock-out, industrial action, fire, flood, storm or other event beyond the reasonable control of either party.
19.8 The Client warrants that it has the power to enter into this agreement and has obtained all necessary authorisations to allow it to do so, it is not insolvent and that this agreement creates binding and valid legal obligations on it.
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