Candles by Thea Terms & Conditions
Please read these terms and conditions carefully as they govern the leasing of Items offered by Candles by Thea Pty Limited (ACN 675 421 593) (Terms). By paying the Deposit, you agree to comply with and be bound by these Terms.
In these Terms, “we” and “us” refers to Candles by Thea Pty Limited and “you” refers to any entity which will be leasing the Products set out on the Tax Invoice.
1. Definitions & Interpretation
1.1 Definitions
In these Terms:
(a) Australian Consumer Law means Schedule 2 of the Competition and Consumer Act 2010 (Cth);
(b) Deposit means the amount specified on the Tax Invoice;
(c) Items means the items set out on the Tax Invoice;
(d) Lease Period means the period commencing on the date you receive the Items and ending on the date you return the Items to us;
(e) Location means the location where the Items are to be delivered and returned as agreed between the parties in writing.
(f) Rental Fee means the amount payable by you to us for the lease of the Items as set out on the Tax Invoice;
(g) Tax Invoice means the tax invoice issued by us to you that outlines the Items to be leased, the Rental Fee, the Deposit, applicable taxes and payment terms.
1.2 Interpretation
In these Terms:
(a1) headings are for convenience only and do not affect interpretation;
(b1) the singular includes the plural and vice versa;
(c1) a reference to these Terms includes the Terms as varied, novated, supplemented, extended, replaced or restated;
(d1) the meaning of general words is not limited by specific examples introduced by “including”, “for example”, “such as” or similar expressions;
(e1) a reference to a particular person includes the person’s executors, administrators, successors and permitted assigns;
(f1) a reference to a group of persons is a reference to any two or more of them jointly and to each of them individually;
(g1) the word “person” includes an individual, a body corporate, a partnership, a joint venture, an unincorporated association and an authority or any other entity or organisation;
(h1) a reference to the word “law” includes common law, principles of equity and legislation (including regulations); and
(i1) no provision or expression is to be construed against a party on the basis that the party was responsible for its drafting.
2. Lease of Items
2.1 Agreement to Lease
We agree to lease the Items to you for the Lease Period, subject to these Terms, and you agree to lease the Items from us for the Lease Period and pay the Deposit, Rental Fee and any other charges specified in these Terms.
2.2 Delivery of Items
(a) We will deliver the Items to, and set-up the Items at, the Location on the date and time agreed between the parties in writing.
(b) You are responsible for providing access to the Location and ensuring that the Items can be delivered safely and without obstruction.
(c) Risk to the Items shall pass to you on the date and time at which we deliver the Items to, and set-up the Items at, the Location.
2.3 Condition of Items
(a) You acknowledge that you have inspected the Items and confirm that they are in good working condition and suitable for your intended use.
(b) If there is a fault with any of the Items, you will permit us or our representatives to inspect, service, repair, test and replace the Items (or any part of the Items) at any time.
(c) If, at our absolute discretion, we determine that that the fault of any of the Items is due to your action or inaction, including, but not limited to, you not using the Items in accordance with our instructions, you are responsible for the cost of repair and/or replacement of the Items (including our labour).
2.4 Return of Items
(a) We will collect the Items from the Location on the date and time agreed between the parties in writing.
(b) You are responsible for ensuring that the Items are returned in the same condition as they were received, subject to fair wear and tear.
2.5 Use and Care of Items
You must:
(a) use the Items in a careful and proper manner and in accordance with any instructions provided by us;
(b) not move the Items from the Location without our consent;
(c) not use the Items for any unlawful purpose or in any manner that is inconsistent with these Terms;
(a) take all reasonable care to protect the Items from damage, loss, or theft; and
(b) not modify, alter, or repair the Items without our prior written consent.
3. Your Promises
3.1 You promise to us that:
(a) you have read, understood, and agree to these Terms;
(b) you are legally capable of entering into binding contracts and that you are at least 18 years old;
(c) you are solvent and able to pay your debts as and when they become payable;
(d) all information provided by you is accurate and complete; and
(e) you have disclosed to us all material information which may have an effect on the Items offered to you and agree to notify us as soon as possible where any circumstances change.
3.2 You acknowledge that we have entered into this agreement in reliance of the above promises.
4. Our Promises
4.1 We promise to you that:
(a) we will use reasonable care and skill in performing our obligations under this agreement to the standard generally accepted within our industry; and
(b) If we perform our obligations negligently, then, if requested by you, we will re-perform the relevant part of our obligations.
4.2 Your request referred to in paragraph 4.1(b) must be made within 5 days of the date we completed performing that obligation.
5. Payment Terms
5.1 Deposit
You must pay Deposit to us within 7 days of the date of the Tax Invoice without set-off, counterclaim or deduction.
5.2 Rental Fee
You must pay the Rental Fee to us within 30 days of the date on which we are to deliver the Items to the Location without set-off, counterclaim or deduction.
5.3 Currency and Taxes
The Deposit and Rental Fee are in the currency, and are inclusive or exclusive of applicable taxes, as specified.
5.4 Failed Payments
In the event that you do not pay the Deposit and/or Rental Fee in accordance with these payment terms set out in this clause, we reserve the right to cancel this agreement until payment is successfully processed.
5.5 Interest
You must pay interested calculated on daily balances on any amount which you do not pay on time for the period it is unpaid. The rate of interest applying to each daily balance is 10%. You must pay this interest promptly or on demand.
6. Cancellation and Refund
6.1 Cancellation by You
(j1) If you wish to cancel your lease of the Items, you must provide written notice to us at least 30 days prior to the date on which we are to deliver the Items to the Location.
(k1) If you cancel at least 30 days prior to the date on which we are to deliver the Items to the Location, you will receive a full refund of any amounts paid.
(l1) If you cancel within 30 days of the date on which we are to deliver the Items to the Location, you will receive a full refund of any amounts paid, less the Deposit.
6.2 Cancellation by Us
(m1) We reserve the right to cancel the lease of the Items at any time due to unforeseen circumstances beyond our control, including, but not limited to, natural disasters, acts of war, or government regulations. In such cases, you will receive a full refund of any amounts paid, including the Deposit.
(n1) We are not liable or in breach of these Terms for any delays or failures in performance of our obligations under these Terms which result from circumstances beyond our control.
(o1) We may cancel this agreement if you breach any of these Terms. No refund will be issued if the cancellation is due to your breach of these Terms.
6.3 Refund Process
All refunds will be issued using the original payment method. Please allow up to 30 days for the refund to be processed.
7. Damage or Loss
7.1 Notification
You must immediately notify us if any Item is damaged, lost, or stolen during the Lease Period.
7.2 Responsibility
You are responsible for any damage to, or loss or theft of, the Items during the Lease Period, except to the extent that the damage, loss, or theft is caused by us.
8. Indemnity
You agree to indemnify, defend and hold us, and our directors, officers, employees, consultants, agents, and affiliates harmless from any and all third party claims, liability, damages or costs (including, but not limited to, legal fees) arising from:
(p1) your use of the Items;
(q1) your breach of these Terms, including any misuse or unauthorised use of the Items;
except in respect to third party claims, liability, damages or costs to the extent that we acted unlawfully, negligently or intentionally caused such claims, liability, damages or costs.
9. Disclaimer of Liability
9.1 Subject to any non-excludable consumer guarantees and other consumer protection provisions set out in the Australian Consumer Law, the Items are provided to you without any guarantees, conditions, or warranties as to their suitability, fitness for a particular purpose, quality, durability, or performance.
9.2 To the fullest extent permitted by law, we hereby expressly exclude all warranties and other terms which might otherwise be implied by statute, common law, or the law of equity, and will not be liable for any damages whatsoever. This includes, but is not limited to, any direct, indirect, special, consequential, punitive, or incidental damages, or damages for loss of use, profits, data, or other intangibles, damage to goodwill or reputation, or the cost of procurement of substitute goods and services, arising out of or related to the leasing, delivery, set-up and collection of the Items. This applies irrespective of whether such damages were foreseeable or arise in contract, tort, equity, restitution, by statute, at common law, or otherwise.
9.3 If the disclaimer of liability in clause 9.2 is found to be illegal, invalid or unenforceable, then our total liability to you in connection with the lease of the Items, whether in contract, tort (including negligence), breach of statutory duty or otherwise, shall not exceed an amount equal to the total Rental Fee paid by you under these Terms.
9.4 This disclaimer does not affect our liability for death or personal injury arising from our negligence, fraudulent misrepresentation, misrepresentation as to a fundamental matter, or any other liability which cannot be excluded or limited under applicable law.
10. Termination
10.1 Termination for Breach
We reserve the right to immediately terminate this agreement by written notice to you if:
(r1) any amount payable by you under these Terms is unpaid for 7 days after its due date (whether or not demanded by us);
(s1) you do not comply with any express or implied obligations in these Terms; or
(t1) you are declared bankrupt or placed into liquidation,
in which case, you will not be entitled to a refund of the Deposit.
10.2 Effect of Termination
Upon termination of this agreement, all rights and obligations of the parties under this agreement will cease, except for a party’s accrued rights and obligations at the date of termination and those provisions that, by their nature, are intended to survive termination, including, but not limited to indemnity, disclaimer of liability, and governing law clauses.
10.3 Refunds and Obligations
Termination of this agreement may be subject to applicable refund policies and obligations as outlined in clause 6.
11. GENERAL PROVISIONS
11.1 Amendments to Terms
These Terms may be amended, removed or varied by written agreement between the parties.
11.2 Entire Agreement
In relation to the subject matter of this agreement, these Termsembody the entire agreement between the parties and supersede any prior written or oral representations, negotiations, arrangements, understandings or agreements and all other communications between the parties.
11.3 Invalidity
If any part of these Terms is illegal, invalid or unenforceable:
(u1) the legality, validity and enforceability of any other part of the Terms will not be affected and all other clauses remain in full force and effect; and
(v1) any illegal, invalid or unenforceable part is to be read down to the extent necessary to preserve its operation; or
(w1) if it cannot be read down, it is to be severed to the extent of its illegality, invalidity or unenforceability and replaced by a legal, valid, and enforceable provision which so far as is possible will have the same economic benefit or burden for the parties as the severed provision was intended to achieve.
11.4 Governing Law
These Terms are governed by the laws of New South Wales. You agree to irrevocably and unconditionally submit to the non-exclusive jurisdiction of the courts of New South Wales (and any court of appeal) and waive any right to object to an action being brought in those courts including by claiming that the action has been brought in an inconvenient forum or that those courts do not have jurisdiction.
11.5 Rights Cumulative
Any rights, powers and remedies of a party under these Terms are in addition to other rights, powers and remedies given by law independently of these Terms.
11.6 Waiver
Any waiver or consent given by any party under these Terms will only be effective and binding if it is in writing and signed by or on behalf of that party. Without limiting the foregoing, any failure to, delay in or partial exercise or enforcement of, any right, power or remedy provided under these Terms or at law does not constitute a waiver of that right, power or remedy, nor will it affect or impair the right of a party to exercise or enforce them at a later time or to pursue remedies it may have for any subsequent breach of these Terms.