Terms & Conditions

1. In this Hire Agreement:

a. “Customer” means the person named as customer in the particulars of the Hire Agreement or the person who requests to hire the Equipment from Flex Fitness Equipment;

b. “Equipment” means the equipment detailed in the particulars of the Hire Agreement and any other equipment hired by Flex Fitness Equipment to the Customer from time to time;

c. “Flex Fitness Equipment” means Ruby Distributors Pty Ltd (ACN 163 627 174) trading as Flex Fitness Equipment and each related entity (as defined in the Corporations Act 2001) of Ruby Distributors Pty Ltd (ACN 163 627 174) from time to time and any of Flex Fitness Equipment’s assigns. This agreement extends to a company which is not now, but is in the future a related entity of Ruby Distributors Pty Ltd (ACN 163 627 174);

d. “Hire Agreement” means this hire agreement and any particulars of hire provided by Flex Fitness Equipment to the Customer from time to time;

e. “Hire Charges” means all fees, charges, costs and expenses charged by Flex Fitness Equipment to the Customer from time to time and includes any amounts the Customer is liable to pay Flex Fitness Equipment under this Hire Agreement;

f. “Intellectual Property” means all copyrights, patents, trademarks, business names and trade secrets of Flex Fitness Equipment;

g. “PPSA” means the Personal Property Securities Act 2009;

h. “PPSR” means the Personal Property Securities Register; and

i. The expressions “accession”, “collateral”, “financing statement”, “financing change statement”, “security agreement”, “security interest”, “perfected security interest” and “verification statement” have the meanings given to them under, or in the context of the PPSA.
2. This Hire Agreement applies to the exclusion of any other agreement, term or condition proposed by the Customer, unless otherwise agreed by Flex Fitness Equipment and the Customer in writing.

3. Flex Fitness Equipment agrees to hire the Equipment to the Customer on the terms set out in this Hire Agreement. Each Hire Agreement is not a separate agreement but forms a part of the agreement between Flex Fitness Equipment and the Customer, together with any credit application, guarantee and indemnity or other contractual document.

4. The Customer is deemed to have accepted the terms of this Hire Agreement from the date on which the Customer signs this Hire Agreement or the date on which the Customer takes possession of the Equipment, whichever is earlier.

5. The Customer agrees to receive all documentation from Flex Fitness Equipment by electronic means.

6. Flex Fitness Equipment may in its absolute discretion decline to hire Equipment to the Customer at any time if it has reasonable cause to do so.

7. The terms of this Hire Agreement may be changed from time to time by Flex Fitness Equipment giving notice of the amendment to the Customer. Notice is deemed given when Flex Fitness Equipment does any of the following:

a. sends notice of the amendment to the Customer at any address (including an email address) supplied by the Customer;
b. publishes the amended terms on its website www.flexequipment.com.au; or
c. displays the amended terms at any premises from which Flex Fitness Equipment conducts hire operations.

8. The Customer MUST:

a. be over the age of 18 years;
b. have appropriate knowledge and experience to operate the Equipment;
c. deliver the Equipment to Flex Fitness Equipment when it is due back;
d. return the Equipment to Flex Fitness Equipment clean and in good repair;
e. operate the Equipment safely, strictly in accordance with the law, only for its intended use, and in accordance with any manufacturer’s instructions whether supplied by Flex Fitness Equipment or posted on the Equipment;
f. ensure that any person collecting or taking delivery of the Equipment on behalf of the Customer is authorised by the Customer to do so and the Customer will not allege that any such person is not so authorised;
g. ensure that all persons operating or erecting the Equipment are suitably instructed in its safe and proper use and/or are fully experienced in doing so;
h. safely secure all items loaded in or on the Equipment or in or on the Customer’s vehicle, and indemnify Flex Fitness Equipment in respect of any injury and/or damage caused by items falling from the Equipment or from any vehicle or trailer operated by or on behalf of the Customer;
i. operate the Equipment with an adequate power source;
j. report and provide full details to Flex Fitness Equipment of any accident, damage or breakdown within 2 business days of the accident, damage or breakdown occurring;
k. keep and maintain the Equipment in a clean condition and good and substantial working order and repair, service the Equipment at its own expense in a skilful and proper manner and supply all oil and grease necessary for service and maintenance;
l. allow Flex Fitness Equipment access to the Equipment for inspection at any reasonable time and provided the Customer has been given reasonable prior notice in that regard.

9. The Customer must NOT;

a. be under the age of 18 years or allow any person under the age of 18 years to operate Equipment;
b. tamper with, damage or attempt to repair the Equipment;
c. sell or on-hire the Equipment;
d. lose or part possession with the Equipment or remove the Equipment from the address provided by the Customer to Flex Fitness Equipment without the written consent of Flex Fitness Equipment except for the purpose of returning the goods to Flex Fitness Equipment’s premises;
e. rely upon any representation or warranty relating to the Equipment or its operation other than those contained in the Hire Agreement;
f. allow any person that is not a party to this Hire Agreement to operate or use the Equipment;
g. operate the Equipment if affected by drugs and/or alcohol, or allow any person that is not a party to this Hire Agreement to operate the Equipment if they are affected by drugs and/or alcohol;
h. exceed the recommended or legal load and capacity limits of the Equipment;
i. use or carry any illegal, prohibited or dangerous substance in or on the Equipment;
j. deface, obscure or remove any of Flex Fitness Equipment’s Intellectual Property from the Equipment (where applicable);
k. repackage the Equipment under any other name.

10. Flex Fitness Equipment is the exclusive owner of all of its Intellectual Property. The Customer may not challenge or dispute Flex Fitness Equipment’s ownership of any Intellectual Property claimed by Flex Fitness Equipment. The Customer must not do anything or omit to do anything which could detrimentally affect the ownership of Flex Fitness Equipment’s Intellectual Property.

11. The Customer acknowledges and agrees that:

a. it will pay the Hire Charges, without any deduction or set off in law or in equity whatsoever, at the time and in the manner stated in the particulars to Hire Agreement or at the time stated in any invoice issued by Flex Fitness Equipment to the Customer;
b. immediately on request by Flex Fitness Equipment, the Customer will pay to Flex Fitness Equipment, without any deduction or set off in law or in equity whatsoever:
(i) the purchase price (as determined by Flex Fitness Equipment) of any Equipment which is for whatever reason not returned to Flex Fitness Equipment including but not limited to if the Equipment is destroyed or stolen;
(ii) any costs incurred in cleaning the Equipment if it is not returned in a clean condition suitable for re-hire;
(iii) the full cost of repairing any damage (including replacing any damaged or missing parts) to the Equipment caused or contributed to by the Customer, unless expressly agreed otherwise in the Hire Agreement;
(iv) all charges payable in respect of the Hire Agreement or arising from the Customer’s use of the Equipment;
(v) costs incurred in delivering and recovering possession of the Equipment;
(vi) interest for late payment of amounts owing by the Customer at the rate of 10% per annum calculated daily.

12. Without limiting the ability of Flex Fitness Equipment to recover all amounts owing to it, the Customer authorises Flex Fitness Equipment to charge any amounts owing by the Customer to any credit card or account details of which are provided to Flex Fitness Equipment by the Customer from time to time. The Customer further authorises Flex Fitness Equipment to retain the Customer’s credit card or account details to facilitate credit card or online payments.

13. The hire of the Equipment under this Hire Agreement is for a definite period as follows:
a. if Flex Fitness Equipment registers its security interest on the PPSR the hire period commences on the date the Customer takes possession of the Equipment and ends on the date the Customer is required to return the Equipment to Flex Fitness Equipment or the date the hire is terminated by Flex Fitness Equipment;
b. if clause 13(a) does not apply, the hire period is deemed to commence on the date the Customer takes possession of the Equipment and ends after 729 days.
14. If the Customer requires possession of the Equipment for a period longer than the relevant period specified in clause 13(a) or (b) then the Customer must, at least 20 business days prior to the expiry of that period, give notice to Flex Equipment to that effect, including reasons. Unless Flex Fitness Equipment agrees in writing to extend the hire period beyond the relevant period, the Customer must return the Equipment to Flex Fitness Equipment before the end of the relevant period.
15. If Flex Fitness Equipment registers its interest on the PPSR then if requested by Flex Fitness Equipment the Customer must immediately sign any documents, provide all necessary information and do anything else required by Flex Fitness Equipment to ensure that Flex Fitness Equipment’s purchase money security interest or any other security interest created in favour of Flex Fitness Equipment is a perfected security interest.
16. The Customer must not enter into any security agreement that permits any other person to have or to register any security interest in respect of the Equipment or grant any other security interest in favour of any party until Flex Fitness Equipment has perfected its security interests created under this Hire Agreement.
17. The Customer must not do or permit anything to be done that may result in the security interest granted to Flex Fitness Equipment ranking in priority behind any other security interest.
18. To the fullest extent permitted by the PPSA the Customer agrees to contract out of the application of the provisions listed in sections 115(1) and 115(7) of the PPSAand the sections listed therein shall not apply.
19. The Customer hereby waives any rights the Customer may otherwise have to:
a. receive any notices or statements the Customer would otherwise be entitled to receive under sections of the PPSA including for the avoidance of any doubt the sections referred to in sections 115(1) and 115(7) of the PPSA;
b. apply to a Court for an order concerning the removal of an accession under section 97 of the PPSA;
c. object to a proposal of Flex Fitness Equipment to dispose or retain any collateral under sections 130 and 135 of the PPSA; and
d. receive a copy of a verification statement confirming registration of a financing statement, or a financing change statement, relating to any security interest created under this document.
20. If the Customer (a) defaults in the due and punctual observance of all or any of its obligations or covenants under the Hire Agreement; or (b) being a person, dies or commits an act of bankruptcy or enters into a debt arrangement or composition under the Bankruptcy Act 1966 or is unable to pay its debts or anything analogous, or having substantially similar effect, occurs; or (c) being a company, takes or shall have taken against it any action for its winding up, placement under official management, administration or receivership or is unable to pay its debts or anything analogous, or having substantially similar effect, occurs, then all monies owed by the Customer shall become immediately due and payable and Flex Fitness Equipment without prejudice to any right or remedies open to it may:
a. treat as discharged all or any obligation arising from any agreement with the Customer;
b. retain any security given or monies paid by the Customer or available though the enforcement of any guarantee, security or bond and apply this in reduction of any sum of money owed or owing by the Customer to Flex Fitness Equipment;
c. reserve the right to enter upon the Customer’s premises or enter upon any premises to which the Customer has a right of access without notice and with force if reasonably necessary to take possession of and remove the Equipment, without being liable for trespass. The Customer shall indemnify Flex Fitness Equipment for any loss or damage suffered by Flex Fitness Equipment and against all claims brought against Flex Fitness Equipment arising from Flex Fitness Equipment repossessing the Equipment;
d. take such steps as it may deem necessary to mitigate the damages suffered including the putting to use, hiring out, or sale of any goods supplied under this Hire Agreement;
e. appoint in writing any person or persons to be a receiver or receiver and manager of the property charged under clauses 21 and 22 below or any part of the charged property. The receiver so appointed shall be the agent of the Customer and the Customer shall be solely responsible for all acts and omissions by the receiver appointed under this clause and for the remuneration of the receiver. The receiver shall without the need for any consent on the part of Customer have all the powers conferred on a receiver under the Corporations Act 2001; and
f. exercise any other right or remedy available to it under the PPSA including to enforce the security interests created by this Hire Agreement.
21. The Customer hereby in favour of Flex Fitness Equipment charges with the due and punctual payment and the due, punctual and complete performance of all its liabilities and obligations hereunder or on any account whatsoever to Flex Fitness Equipment all its legal and equitable interest of whatsoever nature held in any real property both present and future and the Customer hereby consents to Flex Fitness Equipment lodging a caveat or caveats noting its proprietary interest herein.

22. The Customer grants a security interest in all of its present and after acquired property and in all of its present and future rights, title, estate and interest, whether legal and equitable, including in relation to any personal property including any debts owed to the Customer, in favour of Flex Fitness Equipment to secure the performance of its liabilities and obligations hereunder or on any account whatsoever.

23. The Customer agrees to indemnify and hold harmless Flex Fitness Equipment against all claims in respect of any injury to persons, or loss or damage to property, arising out of the delivery, servicing, storage, possession or use of the Equipment during the hire period however arising, whether from negligence of the Customer or Flex Fitness Equipment or otherwise and without limiting the generality of the foregoing whether or not the Equipment was being operated by a servant of Flex Fitness Equipment or any other person for whose acts Flex Fitness Equipment might be or is held to be responsible in connection with the operation of the Equipment.

24. All legal costs (on a full indemnity basis), charges, duties and other expenses incurred by Flex Fitness Equipment in respect of this Hire Agreement or the securities or other documentation required hereunder or in relation to registering, maintaining or releasing any security interest, charge or caveat (including the cost of registering any financing statement or financing change statement), or incurred as a result of the Customer failing to perform their covenants and obligations contained herein, shall be paid by the Customer to Flex Fitness Equipment. The expenses include, but are not limited to, the commission payable to a mercantile agent or a debt collector to pursue or recover outstanding monies pursuant to this agreement and the liability to pay this commission arises at the time the recovery is placed in the hands of the debt collector.

25. Notwithstanding anything contained herein the Customer acknowledges that no warranty or condition, express or implied, is given by Flex Fitness Equipment as to the condition of the Equipment or as to the suitability or fitness of the Equipment. Subject to the extent permitted by legislation any obligation of Flex Fitness Equipment under this Hire Agreement shall be to use its endeavours to supply Equipment and/or services or to repair or replace (at Flex Fitness Equipment’s discretion) any Equipment which is found to be defective during any applicable hire or warranty period (if any) and in no event shall Flex Fitness Equipment be liable for any other claims, losses or damages including but not limited to claims for faulty design, negligence, negligent or misleading advice, damages arising from the loss or use of the Equipment or howsoever arising and any indirect, special or consequential damage including but not limited to damages on account of prospective profits, expenditures or other commitments relating to the business or goodwill of the Customer or on account of any consequential loss or damage incurred or suffered by the Customer or clients of the Customer, which arises from or is connected in any way whatsoever with the use of the Equipment or injury to any person, corporation or other entity.

26. It is acknowledged by the Customer and Flex Fitness Equipment that the Australian Consumer Law and other laws may imply conditions or warranties in certain contracts and also give parties to those contracts certain other rights against suppliers of goods and services. To the extent such conditions, warranties or other rights are implied or given in respect of this agreement and it is not lawful or possible to exclude them, then such conditions, warranties or other rights shall (but only to the extent required by law) apply to this agreement and all other conditions, warranties or rights which might but for this provision be implied are hereby expressly excluded. Where the law implies any term or warranty into these terms and conditions which cannot be excluded, then the liability of Flex Fitness Equipment for any breach of such term will be limited in the manner permitted under section 64A of the Australian Consumer Law to one of the following (as Flex Fitness Equipment may determine):

(i) in the case of goods supplied, to any one or more of the following:
(a) replacement of the goods or the supply of equivalent goods;
(b) repair of the goods;
(c) payment of the cost of replacing the goods or of acquiring equivalent goods;
(d) payment of the cost of having the goods repaired; and

(ii) in the case of services supplied, to any one or more of the following;
(a) supply of the services again; or
(b) payment of the cost of having the services supplied again;
(c) in the event that Flex Fitness Equipment (as a deemed “manufacturer”) has a liability to the Customer (as a “Company”) then, subject to the terms of section 276A of the Australian Consumer Law such liability is limited to a liability to pay to the Customer an amount equal to whichever is the lesser of the cost of:
(A) replacing the goods;
(B) obtaining equivalent services; or
(C) having the goods repaired.

27. The Customer must immediately check all Hire Charges, and any disputes in relation to those Hire Charges must be communicated to Flex Fitness Equipment in writing within 30 days of the Hire Agreement date. In the event that no communication is received from the Customer within that 30 day period, the Hire Charges are deemed to be accepted by the Customer.

28. Flex Fitness Equipment will comply with the Australian Privacy Principles in all dealings with Customers. A copy of the Flex Fitness Equipment Privacy Statement is available upon request or by visiting www.FlexFitnessEquipment.com.au.

29. If any part of this Hire Agreement becomes void or unenforceable then that part shall be severed to the intent that all parts that are not void or unenforceable shall remain in full force and effect. If this Hire Agreement is held to be a standard form small business contract then any clause or term which is deemed to be unfair pursuant to the Australian Consumer Law by any competent authority or the Courts, will be severed from this Hire Agreement.

30. This Hire Agreement shall be governed and construed in accordance with the laws of Western Australia and the parties submit to the jurisdiction of the Courts of Perth, Western Australia and waives any right to object to any proceedings being brought in those Courts.

By hiring/renting equipment from us, you confirm that you have read, understood and accept the terms and conditions of the Hire Agreement.