Transport Refrigeration Services Pty Ltd – Terms and Conditions of Rental
1.1 Accident means any collision between the Vehicle and any other object, including another vehicle, or any other incident or occurrence involving the Vehicle that results in Damages.
1.2 Agreement means these Terms and Conditions of Rental and includes the Form.
1.3 Business Day means a day on which TRS are open for business.
1.4 Business Hours means the hours of TRS’s operation of the location from which the Vehicle is rented, or to which it is returned and which are posted on TRS’ website or posted at the relevant location.
1.5 Commencement Time means the later of the date and time:
(a) Specified on the Form as the commencement time of the rental; or
(b) When the Vehicle is delivered to the Renter or to a location requested by the Renter.
1.6 Damages means any expense (excluding the cost of fuel and vehicle towing), cost (including legal costs on the indemnity basis), penalty, impost, liability or any other financial obligation of whatsoever character (including any excess payable under relevant insurance policies) incurred by TRS in respect of: (a) the loss of or damage to, the Vehicle, including, and without limitation, the cost of repairing the Vehicle (or, if in TRS’s reasonable opinion, the damage is irreparable, the replacement cost of the Vehicle), administration, appraisal, recovery services provided by or on behalf of TRS;
(b) any Third Party Damage, or any claim or demand of any third party made in respect of the Vehicle or the loss of, or loss of the use or enjoyment of, or damage to, any other vehicle or property caused by the Vehicle or resulting from its use;
(c) any claim or demand made in respect of any personal injury caused by the Vehicle or resulting from its use; or
(d) the loss of or damage to, any property, other than the Vehicle, which belongs to TRS or for which TRS is otherwise responsible or liable (either in whole or part).
1.7 Form means the form entitled Refrigerated Truck Rentals and related forms on which all personal and other details of the Renter and drivers are recorded, and which are completed at the time the Vehicle is rented.
1.8 Long Term Rental means a Rental Period greater than 30 days.
1.9 Rental Period means the period during which the Vehicle is rented by the Renter, commencing at the Commencement Time and the ending at the time:
(a) the Renter returns the Vehicle to TRS during Business Hours and TRS accepts return of the ignition key for the Vehicle;
(b) at a place agreed in writing by TRS; or
(c) when TRS receives proper confirmation of theft or destruction of the Vehicle.
1.10 Renter means the person or person (s) who have signed the Form, are noted on the Form as the renter or the entity on behalf of whom this Agreement has been signed as the renter (also referred to as the ‘hirer’ on the Form).
1.11 Rental Fees means the fees, costs, amounts and charges specified in the Form or otherwise payable under this Agreement.
1.12 TRS means Transport Refrigeration Services Pty Ltd ABN 77 002 086 697 and its successors and assigns.
1.13 Third Party Damage means any loss of or damage to third party property, including other motor vehicles and property of TRS other than the Vehicle, and any costs incurred by TRS in connection with such loss or damage.
1.14 Vehicle means the vehicle described on the Form, or any substitute that TRS supplies to the Renter, and includes all parts, tyres, tools, accessories and all other equipment in or fitted to the Vehicle by its manufacturer or TRS.
2. AGREEMENT TO RENT
2.1 Except to the extent otherwise implied by law, this Agreement sets out all the terms, conditions, warranties and undertakings on which TRS agrees to rent the Vehicle to the Renter for the Rental Period.
2.2 The Renter must not attempt to transfer or sublease the Vehicle or any other rights or obligations under this Agreement. Any attempted transfer or sublease of the Vehicle by anyone other than TRS is void. The Renter is not an agent of TRS. No one may service or repair the Vehicle without TRS’s prior express written approval.
2.3 The Renter warrants that all information provided to TRS in the Form or otherwise is true, accurate and not misleading.
The Renter(s) each agree and declare that each of the driver(s) nominated on the Form:
4. DRIVING THE VEHICLE
The Renter agrees that, during the Rental Period, they and any drivers of the Vehicle will:
(a) not allow the Vehicle to be used for any illegal purpose, race contest, reliability trial or other contest, or to carry more passengers or load than for which it was built;
(b) not be under the influence of alcohol, drugs or have a blood alcohol content that exceeds the legal limit in the State or Territory in which the Vehicle is driven;
(c) not smoke or allow anyone to smoke within the Vehicle;
(d) not refuse or fail to take any blood analysis or breath test requested by the police;
(e) not allow the Vehicle to be used to carry any passengers for payment of any kind;
(f) take all reasonable steps to safeguard the Vehicle from accident, damage or loss and not abuse or misuse the Vehicle;
(g) not allow the Vehicle to be driven when it is damaged or unsafe or to be used in conditions for which it is unsuitable;
(h) not use the Vehicle to transport property unless the Renter at his own cost obtains the necessary approvals, permits and licenses, has appropriate insurances and complies with all government requirements;
(i) not use the Vehicle for the conveyance or towing of any load which is incorrectly loaded or secured or is in excess for that for which the Vehicle was constructed;
(j) not without TRS’s prior written consent use the vehicle to carry dangerous goods or other hazardous substances as classified by the Australian Code for the Transport of Dangerous Goods by Road and Rail or relevant State, Territory or Federal legislation;
(k) not without TRS’s written consent allow any other person to drive the Vehicle;
(l) not drive or use the Vehicle in contravention of any road traffic or other applicable legislation applying from time to time in any State or Territory, including exceeding relevant speed limits;
(m) comply with any applicable road safety laws and regulations (including those relating to seat belts and use of a mobile phone whilst driving);
(n) not use the Vehicle recklessly, or with deliberate intent to cause injury, loss or damage;
(o) not use the Vehicle for committing an illegal or unlawful act; and
(p) secure and lock all doors and windows of the Vehicle and remove the keys from the Vehicle when it is parked or leaving the Vehicle unattended.
5. RETURN OF VEHICLE
5.1 The Renter will return the Vehicle to TRS:
(a) at the return location, date and time shown on the Form, or sooner if demanded by TRS on reasonable grounds, including where TRS reasonably believes that the Renter has breached, or is likely to breach, this Agreement;
(b) in the same condition as it was at the commencement of the rental, in a clean state with its body washed out, with a full tank of fuel, fair wear and tear and unforeseen breakdowns or defects excepted;
(c) Fuel will be charged at 1.5x the retail rate.
5.2 The Vehicle is not taken to have been returned until the end of the Rental Period. If the Renter returns the Vehicle outside Business Hours, the Renter remains responsible for the Vehicle until TRS has inspected and accepted its return the next Business Day.
5.3 If the Renter does not return the Vehicle to the agreed location, or returns it to a different location to that shown on the Agreement, the Renter will pay any charges incurred to cover the transport, towing and other reasonable costs of returning the vehicle to the originating location upon termination of rental, unless otherwise agreed in writing.
5.4 If the Renter does not return the Vehicle when required by this Agreement, then TRS may take steps to recover and repossess the Vehicle where and when it is found. The Renter authorises TRS to enter any premises owned or occupied by the Renter and the Renter agrees to make all reasonable efforts to obtain the right for TRS to enter any premises in order to recover and repossess the Vehicle.
5.5 TRS may terminate this Agreement and repossess the Vehicle without notice if:
(a) the Vehicle is found illegally parked or apparently abandoned;
(b) there has been a breach of this Agreement or TRS reasonably suspects that the Renter has breached this Agreement; or
(c) it is likely that damage or injury to personal property may occur,
5.6 If the Renter fails to return the Vehicle at the location, date and time shown on the Form or as otherwise directed by TRS within 24 hours of written or oral demand to Renter, Renter will be deemed to be in unlawful possession of the Vehicle without the consent of TRS and if the location of the Vehicle is unknown, TRS may report the Vehicle as stolen to the police and the Renter must pay all Rental Fees and compensate TRS for any and all Damages suffered up to the time the Vehicle is recovered by TRS.
5.7 If the Renter has breached the Agreement and the breach has caused the downtime of the Vehicle, the Renter will be liable to pay a per day loss of revenue fee based on the actual downtime of the Vehicle (or, where the actual downtime of the Vehicle is not known, a reasonable estimate of that downtime).
6. MAINTENANCE & SAFETY
6.1 The Renter agrees to check the amount of fuel, engine oil and coolant in the Vehicle at appropriate intervals and maintain them at the levels recommended in the Vehicle manufacturer’s specifications or otherwise as required to maintain the Vehicle’s efficient performance.
6.2 In the case of a Long Term Rental, the Renter acknowledges and accepts responsibility to maintain the Vehicle in a roadworthy condition for the duration of the Rental Period. Should the Rental Period span the normal maintenance intervals, it is the Renter’s responsibility to return the Vehicle to TRS for a service at TRS’ cost or changeover to a replacement Vehicle in a serviceable condition.
7. ACCIDENTS, DAMAGE AND LOSS OF PROPERTY
7.1 TRS will insure the Vehicle for such amounts and for such liabilities as TRS thinks fit. The Renter is responsible, to the fullest extent permitted by law, for all Damages howsoever caused and regardless of fault, that occur during the Rental Period. There is no cap or limit on the Renter’s liability to TRS. TRS does not waive any right to recovery, indemnity or contribution from the Renter for Damages.
7.2 The Renter will immediately inform TRS of any incident where Damages occur, or are likely to arise, howsoever caused. Failure to promptly notify TRS constitutes a breach of this Agreement. If any Damages occur, the Renter will immediately pay the TRS insurance excess and any other sums payable to TRS under this Agreement.
7.3 Provided the Renter has not violated this Agreement, if the Renter has opted-in to the damage waiver option, the Renter will be covered for the loss of or damage to the Vehicle, and Third-Party Damage subject to the limits and exclusions of TRS’ insurance policy and the Renter’s immediate payment of the excess.
7.4 Notwithstanding clause 7.3 the damage waiver does not cover, and the Renter is fully liable for: (a) damage to tyres by application of brakes, or by road cuts, puncture or bursts;
(b) Damages if the Vehicle is being used or operated in any manner or for any purpose other than for which it was designed or beyond the manufacturer’s recommended safe working limits;
(c) Damages if the Vehicle is boarded on any watercraft;
(d) Any claims for personal injury;
(e) Damages while the driver is in breach of any road rules or other state or federal laws or regulations;
(f) Damages occurring from the carriage of dangerous goods or hanging meat;
(g) Damages if the driver of the Vehicle has less than 24 months practical experience operating a similar class of vehicle;
(h) Damages if the Vehicle is operated outside of a 450km radius from TRS’s base of operations.
7.5 Payment of excess by the Renter does not, in any way, limit the Renter’s liability under this Agreement.
7.6 The Renter acknowledges that the policies of insurance taken by TRS may not be available to TRS if the Renter breach this Agreement or their actions result in the breach of TRS’ insurance policy.
7.7 The Renter acknowledges that TRS is not liable for any loss caused by the theft of any personal property from the Vehicle, for the damage to any personal property in the Vehicle or for the loss of any personal property left in the Vehicle during or after the end of the Rental Period.
7.8 The Renter acknowledges that TRS has not in any way represented itself to the Renter as a person carrying on the business of insurance.
7.9 The Renter indemnifies TRS from and against any or all claims, demands, actions, liabilities, losses, costs and expenses (including, but not limited to legal costs) incurred by TRS as a consequence of the failure for whatever reason of the due and punctual performance of the Renter’s obligations for any direct special or consequential damages relating to this Agreement.
8. NO LIABILITY OF TRS
8.1 Certain conditions and warranties are implied by statute, whether Commonwealth or State, which cannot be restricted or modified. Where TRS is permitted to limit its liability under those statutes for breach of an implied condition or warranty TRS limits its liability to replacement, repair or resupply of the Vehicle. All other warranties, conditions and other obligations which may be otherwise implied are expressly excluded in their entirety. TRS is not liable to the Renter for any special, incidental or consequential damages relating to this Agreement including the use of or liability to use the Vehicle.
9. CLAIMS AND PROCEEDINGS
9.1 The Renter agrees to report any traffic or parking infringement which occurs during the Rental Period to TRS as soon as possible after it occurs.
9.2 Where the use of a Vehicle by the Renter results in any claim, Accident, damage or loss, the Renter: (a) will immediately report such incident to the police station nearest to the scene of the incident and in writing to TRS within 24 hours;
(b) must report such incident (irrespective of whether it results in the Vehicle being damaged) to TRS as soon as possible after the incident occurs.
(c) will not, without TRS’s written consent, make or give any offer of compromise, promise of payment, settlement, waiver, release, indemnity or admission of liability (other than a true statement made under compulsion of law) in relation to any Accident;
(d) agrees TRS or its insurer may at its own cost bring, defend, enforce or settle any legal proceedings relating to the Vehicle against third parties; and
(e) will immediately complete and return TRS’s accident report form and furnish to TRS within 48 hours any statement, information or assistance which TRS or its insurer may reasonably require, including attending at lawyer’s offices and at Court to give evidence.
9.3 The Renter must promptly give to TRS any papers or other documents received by the Renter concerning an Accident. The Renter further agrees to take all reasonable steps to ensure that any other person who receives any such papers or documents concerning an Accident provides those papers and documents promptly to TRS.
9.4 TRS may terminate the rental of the Vehicle at its discretion and not provide a replacement vehicle after an Accident. In the event of termination, TRS will refund pro-rata pre-paid charges but reserves the right to set off any such pre-paid charge against all charges or Damages due and payable for the Rental Period in accordance with this Agreement.
10.1 The Renter agrees to pay TRS on demand after due allowance for any pre-payments and charges payable under this Agreement, including but not limited to:
(a) the daily rental charge for the Vehicle during the Rental Period (whether at flat rate charge or time and distance charge) and any other fees or charges in this Agreement. Distance charges are measured from the Vehicle’s odometer;
(b) fuel supplied by TRS;
(c) all monies payable by TRS or the Renter arising out of the use of the Vehicle by Renter or imposed on TRS or on the Renter, by any governmental or other competent authority (including but not limited to tolls, road user charges and traffic infringements, or other fines or penalties incurred in relation to the Vehicle during the Rental Period) together with any related legal or Court costs incurred by TRS, and
(d) all monies or Damages for which the Renter is liable to TRS under this Agreement.
10.2 For repayment of amounts payable hereunder the Renter irrevocably appoints TRS as its agent to recover amounts payable under the Renter’s insurance, including the excess and amounts payable under clause 7 or 10 relating to the Vehicle and authorises TRS to charge the Renter’s charge or credit card for all charges under this Agreement and Renter’s signature on Agreement will be considered to have been made on the applicable charge or credit card voucher (this includes any costs incurred by TRS as a result of any breach by Renter of the terms of this Agreement) .
10.3 The Renter remains primarily liable for all payments and charges payable under this Agreement and if the Renter has directed the billing for such payments and charges to be transmitted to another person, firm or corporation which upon so being billed has failed to make payment within 30 days, then the Renter shall upon demand promptly pay such payments and charges to TRS.
10.4 TRS may charge the Renter interest at the rate of 18% per annum calculated on a daily basis on all outstanding amounts payable in accordance with this Agreement, such interest to be computed from the end of the Rental Period.
10.5 Notwithstanding any other provision in this Agreement, any goods and services tax (GST) or any similar tax, stamp duty, or any other tax, duty, surcharge, levy or fee (Charge) imposed by Local, State or Federal Government that is charged or imposed anywhere in Australia and has application to any supply or use made under or in connection with this Agreement or in relation to the use or the likely use of any roads, facilities or other infrastructure by the Renter or in relation to the provision of rental or other services to the Renter, TRS may in addition to the rate, price or any other amount or consideration quoted or expressed as payable elsewhere in this Agreement, recover from the Renter an additional amount on account of the Charge. Any additional amount on account of the Charge shall be calculated without any deduction, or set-off of any other amount and is payable to TRS upon demand whether such demand is by means of an invoice or otherwise
10.6 Roads and Maritime Services ABN 76 236 371 088 (RMS) provides an E-toll facility for payment of tolls incurred by the Renter when driving the Vehicle on a toll road and the Renter must pay RMS in connection with the Renter’s use of the E-toll facility:
(a) all tolls incurred in connection with the Renter’s use of a toll road;
(b) a service fee of $3.30 including GST (or $5.00 including GST when paying by cash) for each calendar day on which a toll is incurred using the E-toll facility (of which $1.65 including GST is remitted to TRS by RMS); and
(c) any other amount that is payable pursuant to the Roads and Maritime Services Terms and Conditions.
10.7 Renters with ongoing accounts with TRS will be invoiced weekly or monthly for any toll fees as well as an admin fee of $15.00 per week or $25.00 per month depending on their billing cycle.
10.8 Renters who do not have an ongoing account with TRS will be charged on their credit card depending on the billing cycle along with a $3.00 administration fee for each toll fee incurred by the Renter. TRS may request a deposit for any cash paying customers.
11. PPSA REGISTRATION
11.1 The following terms have their respective meanings in the Personal Property Securities Act 2009 (Cth) (PPSA) – financing statement, interested person, register, proceeds, security agreement and security interest.
11.2 The Renter agrees that the Vehicle supplied by TRS will be subject to a security interest and will treat the security interest in the Vehicle as a continuing and subsisting security with priority over a registered general security and any unsecured creditors.
11.3 The Renter grants to TRS a security interest in the Vehicle and other property owned by them (including any proceeds arising from the sale of the Vehicle or in any accessions in the Vehicle or if the Vehicle becomes an accession, the accession and the Vehicle) to secure the Renter’s obligations to TRS including, but not limited to, the Renter’s obligation to make payment for the Vehicle and any Damages or other payments which may arise pursuant to this Agreement.
11.4 The Renter is responsible for all costs incurred by TRS in registering its interest under the PPSA and all costs of enforcement. Furthermore, the Renter also agrees if needed to the unconditional ratification of any actions by TRS in relation to the protection of TRS’s security interest.
11.5 The Renter agrees that TRS has unconditional access to any premises where the Vehicle is located from time to time, or where they are reasonably thought to be located and acknowledges that TRS has the right to take possession of the Vehicle. The Renter forfeits any civil or criminal claims in respect of this, and exempts and indemnifies TRS from liability for any damage that may occur in taking possession of the Vehicle.
11.6 The Renter agrees to waive, to the maximum extent possible at law, the following rights under the PPSA: (a) receipt of a verification statement pursuant to section 157 and a statement of account under section 132;
(b) to recover any proceeds under section 140;
(c) to receive notice from TRS to dispose of collateral under section 130, or to retain collateral under section 135 and to object to that notice under section 137;
(d) to redeem collateral under section 142;
(e) to reinstate a security agreement under section 143;
(f) to not have the Vehicle damaged or to be reimbursed in respect of such damage if TRS takes possession of an accession of the Vehicle (section 92 and 93) ;
(g) to refuse permission to remove an accession until security is given by TRS for reimbursement as per section 94;
(h) to receive notice of removal of an accession under section 95;
(i) to apply to court for an order concerning removal of an accession; and
(j) any other right in favour of the Renter that can be lawfully contracted out of under the PPSA (including but not limited to the provisions listed in section 115)
11.7 In addition, the Renter acknowledges that sections 96 and 125 do not apply to any security agreement created on the basis of this Agreement.
11.8 The Renter will immediately notify TRS of any change in its name, address, contact or personal details to enable TRS to register a financing change statement if required. In the absence of such notification, the last address for the Renter that TRS holds in its records is deemed to be the relevant address.
11.9 Additionally the Renter will immediately inform TRS of any changes made to its business practices which may affect TRS’s interests.
11.10 The Renter will not agree, encourage or allow any other person or entity to register a Financing Statement without the express written consent of TRS and will notify TRS as soon as the Renter is aware of any other person or entity taking steps to register an interest in the Vehicle.
12.2 If TRS do not collect Personal Information from the Renter, TRS will not be able to rent a Vehicle to the Renter and if any of the personal information a Renter provides is incomplete or inaccurate, the quality of TRS’s services may be compromised.
12.4 If the Renter incurs tolls during their Rental Period, then TRS will also pass their personal information to the electronic tolling system provider specified on the front page of the Form, this personal information will contain payment information such as credit card or debit card details.
12.5 TRS may use GPS tracking or other electronic tools (GPS Device) to enable the geographical location of the Vehicle to be tracked or located. By hiring a TRS Vehicle the Renter expressly consent to TRS using a GPS Device on the Vehicle during the Rental Period and collecting, using and retaining information from the GPS Device.
12.6 If the Renter defaults in the payment of any moneys owed to TRS under this Agreement. The Renter authorise TRS to provide information of that default to a credit reporting body and to obtain an up to date consumer credit report on the Renter’s Personal information may be used and disclosed by the credit reporting body in accordance with the Privacy Act to create or maintain a credit information file containing information about the Renter, including defaults in excess of 60 days and the debt owed to TRS.
13.1 This Agreement (including the Form) constitutes the entire agreement of the parties about its subject matter and any previous document, understanding and negotiation on that subject matter ceases to have any effect.
13.2 This Agreement and the transactions contemplated by this Agreement are governed by the law in force in New South Wales.
13.3 The Renter may not assign its rights under this Agreement.
13.4 The Renter acknowledges its interest in the Vehicle is as a bailee of TRS only and agrees not to part with possession or dispose of or encumber or assign any right or interest in the Vehicle and not to create any lien on the Vehicle for repairs.
13.5 Where the Renter is more than one person, the Renters’ liability will be joint and several.
13.6 The terms of this Agreement may be varied only by a written agreement between the parties. No right or remedy under or arising from this Agreement may be waived other than in writing signed by all the parties. Accordingly, any non-exercise or partial exercise of, or any delay in exercising any right or remedy does not constitute a waiver of that right or remedy.
13.7 If any provision of this Agreement should be held to be void, illegal or unenforceable in any way, it may be severed or read down as appropriate and the remaining provisions will not in any way be effected or impaired thereby and this Agreement will be construed so as to most nearly give effect to the intent of the parties as it was originally executed.
13.8 Headings are inserted for convenience and do not affect the interpretation of this Agreement.
May 2020 Terms and Conditions of Rental