These terms and conditions apply to the hire of sports and recreation equipment as set out in an Equipment Schedule from Proactivity Pty Ltd ('Proactivity', 'we', 'us', 'our' as the context requires). You, the customer, may hire Equipment from us by completing and signing (or otherwise accepting online in the manner required by Proactivity) an Equipment Schedule and any other documents as required by Proactivity. You agree to receive Equipment Schedules from us electronically and accept that the parties to this agreement consent to electronic signing pursuant to the Electronic Transactions (Victoria) Act 2000 (Vic). These terms and conditions, when accepted by you, create a legally binding contract between you and Proactivity. An Equipment Schedule is an offer to hire the requested Equipment. A contract is only formed once Proactivity confirms its acceptance of an Equipment Schedule including having confirmed the availability of the requested Equipment for the requested Equipment Hire Period.
In this agreement:
- Commencement Date
- means the date when the Customer takes possession of the Equipment.
- means the person or entity named in the Equipment Schedule.
- means the sports and physical training equipment specified in an Equipment Schedule.
- Equipment Hire Charge
- means the amounts shown on the Equipment Schedule payable by the Customer to hire the Equipment for the Equipment Hire Period.
- Equipment Hire Period
- means from Commencement Date until the end of the period set out in the Equipment Schedule.
- Equipment Schedule
- means a document which Proactivity may require the Customer to sign (or accept in a way Proactivity requires) including particulars of the Equipment, the Equipment Hire Period, the Equipment Hire Charge and any special conditions or relevant information relating to the use of the Equipment as specified by Proactivity.
- Returns Policy
- means Proactivity's policy for the return and replacement of Equipment as updated from time to time and available here.
The descriptions and images of the Equipment on Proactivity's website, or other marketing materials, are for illustrative purposes only. The models shown might be generic. We make reasonable effort to describe the features, performance attributes and dimensions fairly. If any particular feature, performance attribute or dimensions are critical to you, please let us know.
2. Hire of Equipment
- The hiring of the Equipment begins from the Commencement Date and continues for the Equipment Hire Period.
- You must ensure that any person taking delivery of the Equipment on your behalf is authorised by you to do so and that you will not allege that any such person is not so authorised.
- You must ensure that you (or another person authorised by you) is at the delivery address, as designated in the Equipment Schedule, to receive delivery, and collection, of the Equipment between the times notified to you by Proactivity. If you are not present at the delivery address you must contact Proactivity to arrange a new delivery (or collection) date and time. You will be liable for any costs associated with any rescheduled delivery or collection of the Equipment.
- You are entitled to use the Equipment for the Equipment Hire Period and for any agreed extension of that period.
- You are responsible for the Equipment.
- You must ensure the Equipment is ready and available for collection by or on behalf of Proactivity at the end of the Equipment Hire Period or otherwise when arranging for the early return of the Equipment. Please contact Proactivity in accordance with the Returns Policy to book a time for collection.
- Proactivity will not refund any hire charge monies if the you elect to return the Equipment prior to the end of the Equipment Hire Period. Responsibilities and costs associated with the return of Equipment, including any early returns, will be coordinated in accordance with the terms of the Returns Policy.
3. Equipment Hire Charge
- You must pay the full amount of the Equipment Hire Charge in advance to Proactivity at the time of placing your online order. If Proactivity subsequently identifies that the Equipment is not available for delivery on your requested dates, Proactivity will refund all amounts paid and this agreement will be at an end.
- You must also pay for any damage to the Equipment caused by you, fair wear and tear excepted. Any such amounts will be as reasonably determined by us and notified to you. If you fail to pay an amount payable under this agreement, you must also pay Proactivity, on demand, interest on that amount at a rate equal to the current Commonwealth Bank of Australia unsecured overdraft rate plus 2% for the period that amount remains unpaid.
4. Personal and payment information
As part of this agreement, Proactivity may be required to retain your contact and payment information on file which includes your name, address email, contact number and credit card details for security reasons. We will keep this information secure and ensure it is destroyed at the conclusion of this agreement.
5. Use of the Equipment
- You acknowledge and agree that the use of the Equipment carries with it dangers and risks of injury and you agree to accept all dangers and risks.
- The Equipment must not be used by anyone other than the customer without the expressed permission of Proactivity.
- Children must not use the Equipment except if directly supervised by a responsible adult.
- You must operate, maintain and store the Equipment strictly in accordance with any instruction provided by Proactivity, with due care and diligence, only for its intended use and in accordance with any manufacturer's instructions and recommendations whether supplied by Proactivity or otherwise posted on the Equipment as to the operation, maintenance and storage of the Equipment.
- You must report to Proactivity and provide full details to us of any accident or damage to the Equipment within 2 business days of the accident or damage occurring.
- You must ensure the Equipment is returned to Proactivity clean and in good repair.
6. Your warranties and other assurances
- You warrant to us on a continuing basis that:
- the Equipment will only be used in accordance with the conditions outlined in this agreement and the Equipment Schedule;
- the particulars in the Equipment Schedule are correct in every respect and are not misleading in any way including, without limitation, by omission;
- the Equipment will not be used for any illegal purpose;
- you will not modify, or permit any modification of, the Equipment in any way; and
- you agree that the Equipment complies with its description, is in merchantable condition and is fit for the hirer's purpose.
- You further acknowledge and agree with Proactivity as follows:
- the Equipment at all times remains the exclusive property of Proactivity;
- you must not sell, charge, pledge or part with possession of the Equipment except to Proactivity.
- you must keep the Equipment at the address specified in the Equipment Schedule;
- you will permit Proactivity or our employees, contractors or agents to enter the premises where the Equipment is located at all reasonable times to inspect, carry out repairs or retrieve the Equipment; and
- the Equipment will at all times, whilst in the care, custody or control of the customer, be at the risk of customer.
- You further acknowledge and agree that you will seek medical advice before using the Equipment, and you will not be entitled to a claim against Proactivity for an injury resulting from not seeking such guidance prior to usage. You also acknowledge that while the functions and attributes of the Equipment may be explained by Proactivity to you that in no way has Proactivity its employees or agents recommend the suitability of this Equipment for you. This advice must only be acquired from a medical practitioner and you therefore must not make any claims against Proactivity, its officers, employees or agents resulting from your use of the Equipment.
To the fullest extent permitted by law you release, discharge and indemnify Proactivity from any and all claims and demands on Proactivity, its officers, employees and agents arising out of or consequent on the use or misuse of the Equipment during the Equipment Hire Period.
8. Loss, damage or breakdown of the Equipment
- You acknowledge and agree that you will be responsible for any loss or damage to the Equipment irrespective of how the loss or damage occurred (fair wear and tear excepted) during the Equipment Hire Period.
- If there is a breakdown or failure of the Equipment you must return the Equipment to us at our expense and you must not attempt to repair the equipment. Returns are to be booked in accordance with the Returns Policy.
You must ensure that you have adequate insurance in respect of the Equipment to its full insurable value and to otherwise cover all liabilities incurred as a result of your use of the Equipment.
10. Liability and disclaimer
- You will assume all risks and liabilities for and in respect of the equipment and for all injuries to or deaths of persons and any damage to property howsoever arising from your possession, use, maintenance, repair or storage of the Equipment.
- To the extent permitted by law Proactivity disclaims all liability for and does not give any warranties to the customer as to the condition of the Equipment.
11. Title to the Equipment
- You acknowledge and agree that Proactivity retains title to the Equipment and that your rights to the use of the Equipment is merely as a bailee only.
- You do not have any right to pledge Proactivity's credit in connection with the Equipment. You agree not to do so.
- You must not offer or purport to sell, assign, sub-let, lend, pledge, mortgage let or hire or otherwise part with or attempt to part with personal possession or otherwise not to deal with the Equipment.
Proactivity may retake possession of the Equipment if you breach any provision of this agreement.
13. Completion of the hire period
The Equipment Hire Period is completed when the Equipment has been collected by or on behalf of Proactivity in the same condition as when it was hired.
- [Non Merger] The covenants, agreements and obligations contained in this agreement will not merge or terminate upon the termination of this agreement and to the extent that they have not been fulfilled or satisfied, or are continuing obligations, they will remain in force and effect.
- [Severance] If any provision of this agreement is wholly or partly invalid, unenforceable, illegal, void or voidable, this agreement must be construed as if that provision or part of a provision had been severed from this agreement and the parties remain bound by all of the provisions and part provisions remaining after severance.
- [Governing Law] This Agreement is governed by the laws of Victoria. Each party submits to the non-exclusive jurisdiction of the Courts exercising jurisdiction in connection with matters concerning this agreement.
- [Interpretation] In this Agreement, unless the context otherwise requires:
- a reference to the singular includes the plural and vice versa;
- a reference to any party to this agreement includes the party's executors, administrators, successors or permitted assigns, and where applicable, its servants and agents;
- a reference to an individual will include corporations and vice versa; and
- if a word or expression is defined, its other grammatical forms have a corresponding meaning.