General Terms for Equipment Hire
These Terms apply to all Equipment hired by the Company to the Customer. By completing or executing the Application Form or submitting an order, you agree to be bound by these Terms.
In the Terms, unless expressed or implied to the contrary, the following words have the following meanings:
ACL means the Australian Consumer Law in Schedule 2 of the Competition and Consumer Act 2010.
Application Form means the standard application form provided by the Company for the hire of the Equipment and attached to these Terms.
Bond means the bond amount set out in the Application Form.
Business Day means any day other than a Saturday, Sunday, or a bank holiday or a public holiday in Victoria and a reference to a date which does not fall on a Business Day is to be construed as a reference to the next Business Day.
Collection Fee means the collection fee specified in the Application Form.
Commencement Date means the date set out in Application Form.
Company means the entity referred to as the Company in the Parties section of the Application Form.
Customer means the person hiring the Equipment the subject of these Terms.
Debitsuccess Contract means the terms and conditions, including the application form, between Debitsuccess Pty Limited and the Customer relating to payment arrangements for the Equipment.
Delivery Fee means the delivery fee specified in the Application Form.
Equipment means the equipment set out in the Application Form.
Expiration Date means the date set out in Application Form.
Hire Fee means the hire fee specified in Application Form, or such other amount specified by the Company from time to time.
Hire Period means the period from the Commencement Date to the Expiration Date (both dates inclusive) as specified in Application Form, unless otherwise terminated in accordance with these Terms.
Interest Rate means the interest rate set by the Penalty Interest Rate Act 1983 (Vic).
Location means the address where the Equipment is held by the Customer as set out in Application Form.
Parts means any and all appliances, parts, instruments, accessories and other equipment of whatever nature constituting part of the Equipment or which may from time to time be incorporated or installed in, or attached to the Equipment.
PPSA means the Personal Property Securities Act 2009 (Cth).
PPSR means the Personal Property Securities Register established pursuant to the PPSA.
Security Interest means an interest in personal property provided for by a transaction that, in substance, secures payment of money or performance of an obligation (without regard to the form of the transaction or the identity of the person who has title to the property), and also includes a transaction which the PPSA treats as a security interest whether or not the transaction concerned, in substance, secures payment or performance of an obligation.
Secured Property means all goods that are supplied to the Customer by the Company (whether now or in the future) including the Equipment and for the avoidance of doubt the proceeds of any sale of those goods.
Sub-hirer means any party to whom the Customer has sub-hired or otherwise provided the Equipment.
Terms means these terms and conditions of equipment hire.
In these Terms, unless expressed or implied to the contrary, terms defined in the PPSA, have the same meaning.
- The Company will hire to the
- Customer the Equipment in accordance with these Terms.
- This agreement commences on the earlier of either the
- Commencement Date, or the day that the Customer takes possession of the Equipment.
- This agreement will terminate on the Expiration Date.
- The minimum Hire Period is eight (8) weeks.
- Except as otherwise agreed in writing with the Company, it is the Customer's responsibility to collect the Equipment from the Company during normal business hours.
- Within 14 Business Days from the end of the Hire Period, the Customer must contact the Company to arrange a time for the Company to collect the Equipment from the Customer's Location during business hours.
- The Customer agrees to allow the Company access to the Location to collect the Equipment.
- Delivery of the Equipment to the Location and return of the Equipment to the Company is at the Customer’s own expense.
If the Customer requires the Company to deliver the Equipment to the Location, the Customer agrees to pay the Company the Delivery Fee within 10 Business Days of the Company delivering the Equipment to the Location.
- If a Collection Fee is specified in the Application Form, the Customer must pay the Company the Collection Fee within 10 Business Days of the Company collecting the Equipment from the Location.
- The Company accepts no responsibility for any accidental damage caused to the Equipment during the course of delivery, installation or pickup of the Equipment.
- Subject to normal wear and tear expected from use of the Equipment indoors, if the Equipment is not returned to the Company in a clean condition and/or good working order, the Customer will be charged the Company's costs in bringing the Equipment to this condition.
- As at the Commencement Date, the Customer acknowledges that the Customer has inspected the Equipment and is satisfied as to the condition, quality and safety of the Equipment, its fitness for the Customer’s purposes and its compliance with its description.
The Customer will be deemed to have accepted the Equipment and risk will have passed to the Customer:
- where the Company delivers the Equipment, upon delivery of the Equipment to the Location; or
- upon the Customer or its agent taking possession of the Equipment.
- The Customer acknowledges that the Company owns the Equipment and in all circumstances the Company retains title to the Equipment. The Customer's rights to use the Equipment are as a bailee only.
The Customer must not, and must not attempt to, sell or offer for sale, assign, mortgage, pledge, charge, encumber, or otherwise dispose of or part with the Equipment or any part thereof in the Hire Period without the Company's prior written consent.
- The Customer must not attach the Equipment to any property without the Company's prior written consent. If the Equipment is attached to land, the Equipment will not become a fixture and may be removed by the Company in accordance with these Terms.
- The Customer must keep the Equipment indoors at the Location at all times during the Hire Period.
- The Customer must not remove the Equipment from the Location or part with possession of the Equipment without the Company's prior written consent.
- Cleaning and Maintenance: The Customer warrants that it will:
- keep the Equipment in proper working order and condition and in good and substantial repair at the Customer's own cost;
- not do or cause anything to be done that may endanger the safety or condition of the Equipment and must use all reasonable measures to protect the Equipment against theft and vandalism;
- not in any way alter, modify, tamper with, damage or repair the Equipment without the Company's prior written consent; and
- not deface, remove, vary or erase any identifying marks, plate, number, notices or safety information, on the Equipment.
- Operation of Equipment: The Customer warrants that it:
will operate the Equipment safely, only for its intended use and in accordance with the manufacturer's instructions;
acknowledges and accepts that operation of the Equipment may cause physical injury, and the Company will not be liable for this physical injury except as provided for in clauses 15 and 16; and
- will display all safety signs and instructions (as required by law), and ensure that all instructions and signs are observed by users of the Equipment.
- Replacement of Parts: The Customer warrants that it will:
replace all Parts, with reasonable promptness, which may from time to time become worn out, lost, stolen, compulsorily acquired, destroyed, seized, confiscated, damaged beyond repair or permanently rendered unfit for use by damage or obsolescence;
- ensure that all replacement Parts have a value and utility at least equal to the Parts replaced in their condition and repair required to be maintained under these Terms;
- accept full responsibility for the cost of replacing such Parts; and
agree that all replacement Parts will become the property of the Company free of any liens, charges or other encumbrances.
Repair of Equipment: The Customer agrees that:
- it will undertake repairs or replacement of the Equipment within a reasonable time upon receiving a written notice from the Company of any defect or deficiency in the Equipment or the Customer's operation of the Equipment or both for which the Customer is responsible under these Terms; and
- if the Customer fails to carry out its obligations under clause 6.4.1, the Company and its agents may enter the Customer's premises for the purpose of carrying out the repairs or replacement of the Equipment.
- In the event that the Equipment breaks or becomes unsafe to use during the Hire Period, the Customer must:
- notify the Company immediately;
- immediately stop using the broken Equipment;
- take all necessary steps to prevent injuries to any persons or damage to any property as a result of the condition of the Equipment; and
- not repair, or attempt to repair, the Equipment without first receiving written notice from the Company in accordance with clause 6.4.1.
- If the Equipment breaks or becomes unsafe through no fault of the Customer, and the Customer has notified the Company pursuant to clause 1.1 above, the Company will replace or repair the Equipment at the Company's option.
- If the Equipment has broken or becomes unsafe to use as a result of the Customer's acts or omissions (or its employees or contractors), the Customer will be liable for:
- any costs incurred by the Company to repair or replace the Equipment; and
- the Hire Fee for that portion of the Hire Period during which the Equipment is being repaired or replaced.
- Subject to clause 2, if the Customer notifies the Company immediately of a breakdown, the Company may determine not to charge the Hire Fee during the time in which the Equipment is not working.
- In the event that the Equipment becomes lost, damaged or stolen, the Customer must immediately notify the Company.
- If the Equipment is lost, damaged beyond fair wear and tear or stolen during the Hire Period, the Customer will be liable for:
- any costs incurred by the Company to recover the Equipment; and
- all other costs listed in clauses 3.1 and 7.3.2.
- The Customer must not sub-hire or loan the Equipment to any third party without the prior written consent of the Company, at its absolute discretion.
- The Customer must pay the Company the Hire Fee in accordance with these Terms.
- The Customer must pay the Bond to the Company on the Commencement Date. The Bond will be refunded to the Customer within 14 days of the Expiration Date, less:
- any Hire Fees in arrears; and
where the Company has repaired the Equipment, the cost of that repair.
- In addition to the fees provided in clause 10.1, the Customer agrees to pay:
- any and all rates, and other taxes such as GST (but excluding any income tax payable by the Company), outgoings, penalties, fines, demands, charges or costs, stamp and other duties;
- all repair and operating expenses in respect of the Equipment including (without limitation) and the cost of replacement Parts; and
- all other costs and expenses required under these Terms.
In the event that these Terms are terminated prior to the Expiration Date due to the default of the Customer, , the Customer acknowledges that the remaining Hire Fee up to the Expiration Date is payable by the Customer to the Company.
- Unless otherwise provided for in these Terms, all amounts payable by the Customer to the Company are payable in accordance with the payment terms set out in the Application Form, and if no payment terms are provided, all amounts payable to the Company are payable within 7 days of any invoice provided by the Company or its agent.
- If the Customer defaults in making payment to the Company in accordance with these Terms, the Company may in its absolute discretion:
- charge the Customer interest at the Interest Rate on the overdue amount; and
- require the Customer to reimburse the Company for all collection costs (on a full indemnity basis) incurred by the Company.
GST Act means the A New Tax System (Goods and Services Tax) Act 1999 (Cth) (as amended) and any related tax legislation or regulation;
GST means goods and services tax within the meaning of the GST Act and, except where the contrary intention appears, expressions used in this clause have the meanings given to them in the GST Act.
- If the party to these Terms (Supplier) makes a taxable supply (Supply) under these Terms, then the recipient of that Supply must also pay to the Supplier, at the same time as the consideration for the Supply is paid or otherwise given to the Supplier, an additional amount equal to any GST payable in connection with that Supply.
- The Supplier warrants that it is registered for GST under the GST Act.
- The Supplier’s right to payment under clause 12.1.1 is subject to a tax invoice being delivered to the recipient of that Supply to enable the recipient to claim input tax credits for the Supply.
If an adjustment due to an adjustment event results in the GST being different from that paid to the Supplier under clause 12.1.1 the Supplier:
- must refund to the recipient any excess; and
may recover from the recipient any shortfall.
- If the Company determines, in its absolute discretion, that the PPSA applies to a transaction under these Terms, the Customer agrees to:
- grant the Company a Security Interest in the Secured Property; and
- do all things necessary or reasonably requested by the Company to enable the Company to:
- register and perfect its Security Interest in the Secured Property on the PPSR;
- exercise its rights in connection with the Secured Property; and
confirm whether the Customer has complied with these Terms.
The Customer acknowledges and agrees that in relation to the part of the Secured Property that is inventory, the Customer will not allow any Security Interest to arise in respect of that Secured Property unless the Company has perfected its Security Interest in the Secured Property prior to the Customer’s possession of the Secured Property.
- If Chapter 4 of the PPSA applies to the enforcement of the Security Interest arising under or in connection with this
- greement, the Customer agrees:
to the extent that section 115(1) of the PPSA allows this, the following provisions of the PPSA will not apply to the enforcement of that Security Interest: section 95 to the extent that it requires the Company to give a notice to the Customer, section 96, section 121(4), section 125 (obligation to dispose of or retain collateral), section 130 to the extent that it requires the Secured Party to give notice to the Customer, section 132(3)(d), section 132(4), section 142 and section 143 (reinstatement of security agreement); and
- to the extent that section 115(7) of the PPSA allows this, the following provisions of the PPSA will not apply to the enforcement of that Security Interest: section 127, sections 129(2) and (3), section 132, section 134(2), section 135, sections 136(3), (4) and (5) and section 137.
- The Customer agrees to immediately notify the Company of any changes to its name or address (as specified in this agreement).
The Customer shall pay on demand any losses arising from, and any costs and expenses incurred in connection with, any action taken by the Company under or in relation to the PPSA, including any registration, or any response to an amendment, demand or a request under section 275 of the PPSA.
- Any notices or documents which are required or permitted to be given to the Company for the purposes of the PPSA must be given in accordance with the PPSA.
- The Customer waives the right to receive any notice under the PPSA (including notice of a verification statement) unless the notice is required by the PPSA and cannot be excluded.
- Nothing in these Terms is intended to exclude, restrict, or modify any guarantee, term, condition or warranty implied or imposed by law (including the ACL) which cannot be lawfully excluded or limited (Non-Excludable Guarantees).
- The Customer acknowledges that with respect to any Non-Excludable Guarantees, the Company's liability is, where permitted, limited to replacement (or the cost of replacement) of the Equipment, the supply (or the cost of supply) of equivalent Equipment or the repair (or the cost of repair) of the Equipment at the Company's option.
- Subject to the Company's obligations under the Non-Excludable Guarantees, and to the maximum extent permitted by law, the Company's maximum aggregate liability for all claims arising under or relating to these Terms or its subject matter, whether in contract, tort (including without limitation negligence), in equity, under statute, under an indemnity, is limited to an amount equal to the Hire Fee paid by the Customer under these Terms.
- Subject to clause 15.1, to the extent permitted by law (unless otherwise expressly set out in these Terms), all terms, conditions, warranties, undertakings, inducements or representations whether express or implied, statutory or otherwise, relating to the Company's obligations under these Terms are excluded.
- To the maximum extent permitted by law, neither party will have any liability to the other for fines, penalties, taxes (except GST) and any exemplary, aggravated or punitive damages, liquidated damages or any indirect or consequential loss (including but not limited to loss of business, loss of revenue, loss of contract, loss of production, lost opportunity costs), legal costs and expenses (except reasonable legal costs awarded by a court) except where such losses are covered by an insurance policy held by the party.
- To the maximum extent permitted by law, the Company will not have any liability or responsibility for any personal injury, fatigue or property damage sustained by or through use of the Equipment.
- Except to the extent excluded by law, the Customer indemnifies the Company against any losses, damages, claims, liabilities, expenses, payments or outgoings (Liabilities) incurred by the Company to the extent the Liabilities were caused by the Customer's, or its agent's, officers', sub-contractors' or employees', acts or omissions or its breach of its obligations under these Terms.
- The Customer accepts the Equipment at its own risk except where the Company owes a duty of care at law in the absence of these Terms and, save as set out in these Terms, the Company will not be liable to the Customer for any loss, damage, injury or death sustained by any person or to any property howsoever caused.
- Except in the case of legal liability caused solely by the gross negligence of the Company, the Customer indemnifies the Company for any legal liability for personal injury arising out of, or in connection with, use of the Equipment.
- Either party may terminate these Terms with immediate effect by serving a written notice on the other party if:
- the other party becomes unable to lawfully perform its obligations under these Terms;
- the other party becomes bankrupt or insolvent, executes a personal insolvency agreement, enters into liquidation, administration, receivership or ceases to carry on business; or
commits a breach of these Terms which it does not remedy (if capable of remedy) within 5 Business Days of receiving written notice of breach.
- The Company may terminate these Terms at any time for any reason for convenience by giving the Customer at least 10 Business Days' written notice.
- The Customer may terminate these Terms at any time after the 8 week anniversary of the commencement of the Hire Period by giving the Company at least 10 Business Days' written notice.
- The Company may terminate these Terms immediately if the Customer or any third party has made a false statement in the Application Form.
- These rights of termination are in addition to any other rights either party has under these Terms and does not exclude any right or remedy under law or equity.
- Despite anything to the contrary contained in these Terms:
- where the Customer and/or the Guarantor (if any) is the owner of land, realty or any other asset capable of being charged, both the Customer and/or the Guarantor agree to mortgage and/or charge all of their joint and/or several interest in the said land, realty or any other asset to the Company to secure all amounts and other monetary obligations payable under these Terms. The Customer and/or the Guarantor acknowledge and agree that the Company shall be entitled to lodge where appropriate a caveat, which caveat shall be withdrawn once all payments and other monetary obligations payable under these Terms have been met.
- should the Company elect to proceed in any manner in accordance with this clause and/or its sub-clauses, the Customer and/or Guarantor shall indemnify the Company from and against all the Company’s costs and disbursements including legal costs on a solicitor and own client basis.
- The Customer and/or the Guarantor (if any) agree to irrevocably nominate constitute and appoint the Company as the Customer's and/or Guarantor’s true and lawful attorney to perform all necessary acts to give effect to the provisions of clause 18.1.
- The Guarantor unconditionally and irrevocably guarantees the due and punctual performance by the Customer of these Terms.
The Guarantor acknowledges that the Customer is entering into these Terms on its request, it is associated with the Customer, and it receives valuable benefit from the Customer and the Guarantor entering into these Terms.
- The Guarantor unconditionally and irrevocably guarantees the due and punctual payment by the Customer of all Hire Fees and other monies at any time actually or contingently owing to the Company by the Customer under these Terms or otherwise (Guaranteed Monies).
- If the Customer defaults in the payment of the Guaranteed Monies, the Guarantor shall pay those monies immediately on demand to, or as directed by, the Company in order to discharge the debt owed to the Company in full.
- This clause 19 shall constitute a continuing guarantee and indemnity to the Company for all Guaranteed Monies which are now or may from time to time be owing or remain unpaid.
- The Guarantor's obligations under this clause 19 are primary obligations and are not ancillary or collateral to any other right or obligations. The Guarantors obligations may be enforced against the Guarantor without the Company being required to take action against the Customer whether by making a demand or under any security that it may hold for the Guaranteed Monies.
- The liability of the Guarantor under this clause 19 is absolute and unconditional and it shall not be avoided, released or affected by anything at all which, but for this provision, might operate to relieve the Guarantor of any obligation in whole or in part.
- The only contractual terms which are binding upon the Company are those set out in these Terms or otherwise agreed to in writing by the Company and those, if any, which are imposed by law and which cannot be excluded by these Terms. Any terms and conditions of the Customer included on documents submitted to the Company are expressly excluded and do not apply.
- All previous negotiations, representations, warranties, arrangements and statements (if any) whether expressed or implied, including any collateral agreement or warranty between the Customer and the Company, are excluded and cancelled.
If any of these Terms are found to be void, voidable or unenforceable the validity and enforceability of the remaining provisions shall not in any way be affected or impaired.
- A waiver by either party of any breach or failure to enforce or to insist upon the observance of a condition of these Terms will not be a waiver of any other or of any subsequent breach.
- These Terms can only be amended, supplemented or replaced by another document signed by the Customer and the Company.
- The Customer may not assign these Terms without the Company's prior written consent.
Time is of the essence in relation to these Terms.
- These Terms and any agreement including them shall be governed by the laws of the State of Victoria and the Company and the Customer submit to the jurisdiction of the Courts of that State.
- To the extent of any inconsistency between these Terms and the Application Form, the following order of preference will apply:
- Application Form
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