Terms and Conditions of Tree Rental
F&J Caccaviello(ACN 14739394807) (TRADING AS “The Cherry Boys”)
TERMS AND CONDITIONS
"Contract Invoice" means the contract invoice on the reverse of thispage.
"Customer" means the customer named in the Contract Invoice.
"Fee" means the fee for the rental of the Rental Goods as set out in the Contract Invoice plus any GST.
"GST" means GST within the meaning of the A New Tax System (Goods and Services Tax) Act 1999 (Cwth) (as amended).
"Rental Period" means the period as set out in the Contract Invoice or as extended by agreement pursuant to clause 3.2.
"Location" means the address of the Cherry Boys identified at the top of the Contract Invoice.
“Rental Goods” means a cherry tree(s) including any cherries produced by the Rental Goods (cherries), as set out in the Contract Invoice.
"Terms and Conditions" means these hire terms and conditions.
These Terms and Conditions and the Contract Invoice constitute the entire agreement between the parties with respect to the Rental Goods.
3 RENTAL PERIOD
3.1 Notwithstanding any other provision of the agreement between the parties with respect to the Rental Goods, the Rental Period may be terminated in accordance with clause 13.
3.2 The Rental Period may be extended by agreement between the Cherry Boys and the Customer subject to payment of such additional fees as may be agreed by the Cherry Boys and the Customer.
3.3 The Cherry Boys, its servants or agents may at any time within on one months notice in writing to the Customer, without cause, terminate the agreement, and refund the Customer (less any amount of benefit already received by the Customer as at the date of termination).
4. Customer acknowledges and agrees that:
they are entering into an agreement to rent a cherry tree and are entitled to the produce, ‘cherries’, that naturally derives from the Rental Goods during the Rental Period;
The Rental Goods (Cherries) are highly susceptible to climatic, weather and natural conditions, including bird, fungal and insect attack and no guarantee is made as to the continued existence, productivity or health of the Rental Goods;
They accept the Rental Goods on an as is where is basis;
Whilst every effort is made by the Cherry Boys to ensure the Rental Goods are available to the Customer and its produce is fit for consumption, the circumstances set out in 4(ii) of these Terms and Conditions may result in the Rental Goods being destroyed and not fit for consumption and that such circumstances are outside the control of the Cherry Boys;
The Location is a working farm and access involves inherent risks associated with farm activities; and
The Cherry Boys are in no way responsible or liable in the event the Rental Goods are effected by the events set out in clause 4(ii) of these Terms and Conditions.
5 CHERRY BOYS’ OBLIGATIONS
The Cherry Boys agree to:
5.1 provide the Rental Goods to the Customer in an accessible condition, well maintained but subject always to the circumstances set out in 4(ii) of these Terms and Conditions and the effects such conditions can have on the produce of the Rental Goods.
5.2 Provide access to the Rental Goods and the Location on reasonable notice by the Customer, but in any event no less than 24 hours notice. Access is strictly limited to Mon-Sun 8.30am-4.00pm and these Terms and Conditions.
5.3 Notify the Customer by email and/or mobile text message asset out in the Contract Invoice, at least 3 days prior to the Customer needing to attend their Rental Goods and harvest the produce in respect of their Rental Goods. The Customer must harvest the Rental Goods within 7 to 10 days of receiving notice from the Cherry Boys that the Rental Goods are ready for harvest.
5.4 Spray, weed, water, fertilise and generally maintain the Rental Goods in accordance with prudent farming practices.
6 CUSTOMER'S OBLIGATIONS
The Customer agrees:
6.1 To access or enter the Location only after complying with the notification requirements in clause 4.2.
6.2 To comply with all Cherry Boys’ reasonable instructions relating to the use and/or access of the Rental Goods and the Location.
6.3 To immediately leave the Location on the request of the Cherry Boys’ or any of their officers, agents or assigns (acting reasonably).
6.4 That the Rental Goods remain the sole and absolute property of the Cherry Boys and that the Customer shall not assign, sell, pledge, underlet, lend or otherwise deal with the Rental Goods without the express written consent of the Cherry Boys.
6.5 Any failure by the Customer to harvest the Rental Goods within 10 days following notice by the Cherry Boys in accordance with clause 5.3 of these Terms and Conditions, will result in the Customer being charged an additional handling charge of $55.00 (including GST) which will include the Cherry Boys picking, packing and storing the produce of the Rental Goods. Further additional costs will be incurred by the Customer should they wish to have the Rental Goods produce delivered.
6.6 That they will not intentionally or recklessly break, damage or harm the Rental Goods.
6.7No alcohol must be consumed at the Location.
7.1 The Customer agrees to pay the Cherry Boys the Fee for the Rental Goods for the Rental Period plus any GST.
7.2 Subject to clause 7.3, the Fee must be paid to Cherry Boys prior to or on the commencement of the Rental Period.
7.3 If payment of the Fee is not received by the Cherry Boys by the due date, the Cherry Boys may suspend or cancel the Rental Agreement.
8 USE, OPERATION AND MAINTENANCE
8.1 The Customer agrees that the use of and access to the Rental Goods and the Location carries with it dangers and risks of injury and the Customer agrees to accept all such dangers and risks.
8.2 To the full extent permitted by law, all warranties and conditions relating to the rental of the Rental Goods are excluded from the agreement between the Cherry Boys and the Customer.
8.3 The Rental Goods or access to the Location must not be used or accessed by anyone other than the Customer without the express permission of the Cherry Boys and the Customer must not tamper with the Rental Goods or any other Rental Goods at the Location.
8.4 If there is an issue with the Rental Goods the Customer shall notify the Cherry Boys immediately.
9 LIABILITY AND INDEMNITY
9.1 The Customer assumes all risks and liabilities in relation to the Rental Goods and access to the Location.
9.2 To the full extent permitted by law, the Customer releases and indemnifies the Cherry Boys from and in respect of all claims and demands for any direct, indirect, incidental or consequential loss, injury or damage to persons or property howsoever caused arising out of or consequent on the use or misuse of the Rental Goods or access granted to the Customer at the Location.
9.3 The Customer indemnifies the Cherry Boys in respect of any damage caused to the Rental Goods, whether caused by intentional, reckless or negligent conduct or behaviour by the Customer or anyone else who accesses the Location.
9.4 If anything in this indemnity Clause 9 is unenforceable, illegal or void then it is severed and the rest of this indemnity remains in force.
10 TITLE TO EQUIPMENT
10.1 The Customer acknowledges that the Cherry Boys retain title to the Rental Goods and that the Customer has rights to use and access the Rental Goods as a mere bailee only.
10.2 The Customer agrees not to sell, assign, let, sub-let, lend, pledge, mortgage, hire or otherwise encumber, alter, attempt to repair or deal with the Rental Goods unless otherwise agreed with the Cherry Boys.
11.1 The Cherry Boys may terminate the Contract Invoice and repossess the Rental Goods if:
(a) the Customer fails to pay the Fee; or
(b) the Customer breaches the Terms and Conditions or the Contract Invoice.
11.2 In the event of termination pursuant to clause 11.1, the Cherry Boys will have an immediate right to possession of the Rental Goods and payment of any amounts owed by the Customer including any costs or expenses incurred by the Cherry Boys in respect of the termination.
12 GOVERNING LAW
These Terms and Conditions and the Contract Invoice are governed by the laws of Victoria and each party submits to the exclusive jurisdiction of the Court of that State.