HIRE TERMS

These Hire Terms, together with any Hire Form provided to a Customer, set out the agreement (this Agreement) under the terms of which the Customer or the company which the Customer represents (the Customer, you, your) will rent the Simulator from Salvatore Crimi Gialuisi ABN 54 551 602 637 operating under the business name Dynamico Lab (Dynamico Lab, us, our).

1. HIRE FORM, THIS AGREEMENT

(a) These Hire Terms will apply to all the Customer’s dealings with Dynamico Lab, including being incorporated in all agreements, quotations or orders under which Dynamico Lab is to rent a Simulator to the Customer (each a ‘Hire Form’) together with any additional terms included in such a Hire Form (provided such additional terms are recorded in writing).

(b) The Customer will be taken to have accepted this Agreement if:

(i) the Customer accepts a Hire Form; or

(ii) if the Customer orders, accepts or pays for any Simulator provided by Dynamico Lab after receiving or becoming aware of this Agreement.

(i) the Customer has read, understood and agree to these Hire Terms; and

(ii) the Customer:

(A) will provide a copy of the Customer’s valid driver’s licence to Dynamico Lab before renting any Simulator; and

(B) is aged 18 years or above and has the legal capacity to enter into this Agreement.

(d) In the event of any inconsistency between these Hire Terms and any Hire Form, the clauses of these Hire Terms will prevail to the extent of such inconsistency, except for any terms in the ‘Special Conditions’ within a Hire Form, which will prevail over the Hire Terms to the extent of any inconsistency.

2. HIRE

(a) Dynamico Lab rents to the Customer and the Customer accepts from Dynamico Lab the Hire of the Simulator upon and subject to the provisions of this Agreement.

(b) Dynamico Lab rents the Simulator to the Customer on the terms of this Agreement in consideration for the Customer’s acceptance of the terms of this Agreement, including the Customer’s agreement to pay any fees that become payable under this Agreement.

(c) Unless otherwise agreed between the parties in writing, the Customer must rent the Simulator for at least the Minimum Hire Term. Any Hire Periods under the Minimum Hire Term will be charged the Hire Fees for the Minimum Hire Term.

3. PRE-HIRE

The Customer warrants that they:

(a) have heard and understood any verbal directions, read and understood written instructional manual and/or completed an induction session provided by Dynamico Lab;

(b) understand the limitations of the Simulator and will not use the Simulator in a way which exceeds those limitations in any way (including any specific Simulator Limitations); and

(c) ensure that the Authorised Recipient for Delivery (if different from the Customer) taking delivery of the Simulator 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.

4. PAYMENT

4.1. FEES

The Customer must pay the Fees to Dynamico Lab, in the amounts and at the times set out in the Hire Form or as otherwise agreed in writing.

4.2. TIME FOR PAYMENT

Unless otherwise agreed in writing, if Dynamico Lab issues an invoice to the Customer for any Fee, payment must be made by the time(s) specified in such invoice or, if no time is specified in the invoice, within 7 days of receipt of the invoice.

4.3. PAYMENT METHOD

The Customer must pay Fees using the fee payment method specified in the Hire Form.

4.4. Late payment

If the Customer fails to pay any amounts due to Dynamico Lab under an invoice by the specified due date, Dynamico Lab retains the right, without limiting any other rights under this Agreement, to charge the Customer interest at a rate of 10% per annum on the outstanding amount. However, before applying this interest, Dynamico Lab will provide the Customer with a written notice giving an additional 7 days to complete the payment. If payment is still not received by the end of this 7-day grace period, interest will accrue from the expiration of that period until the date the full payment is received by Dynamico Lab.

4.5. online payment partner

Dynamico Lab may process payments using an online payment partner (Online Payment Partner). In addition to this Agreement, the Customer’s hire of the Simulator will be subject to the terms and the privacy policy of the Online Payment Partner, including any ‘no refunds’ or ‘disputes’ policies, available on the Online Payment Partner’s website.

4.6. GST

Unless otherwise indicated, amounts stated in a Hire Form do not include goods and services tax (GST). In relation to any GST payable for a taxable supply by Dynamico Lab, the Customer must pay the GST subject to Dynamico Lab providing a tax invoice.

4.7. CARD SURCHARGES

Dynamico Lab reserves the right to charge credit card surcharges in the event payments are made using a credit, debit or charge card (including Visa, MasterCard or American Express).

4.8. CREDIT CARD STORAGE

The Customer authorises Dynamico Lab to store the Customer’s credit card details for use at a later date if required in relation to any additional charges set out in this Agreement or loss or damage to the Simulator caused or contributed to by the Customer.

5. SIMULATOR USE

5.1. Devlivery and Collection

(a) Dynamico Lab will deliver the Simulator to the Delivery and Collection Address and perform the set up Services at the Start Time on the Start Date;

(b) Subject to clause 16, the Customer must ensure that the Simulator is available for collection and ready for Dynamico Lab to perform the pack down Services at the Delivery and Collection Address at the Return Time on the Return Date in the same condition as it was on the Start Date.

(c) For the purposes of this clause, ‘same condition’ means the same state (excluding ordinary wear and tear) and complete with all the parts and accessories in the same state of cleanliness as the Simulator was on Start Date.

(d) If the Simulator is not available for the pack down Services and collection on the Return Date at the Delivery and Collection Address at the Return Time, the Customer must promptly pay the Late Charge for each 24 hour period after the Return Date during which the Simulator is not made available to Dynamico Lab.

(e) Where the Customer hires the Simulator and/or the Services are to be provided in a Remote Site, the Customer will pay the Remote Area Charges specified in the Hire Form.

5.2. USE

(a) The Customer must ensure that the Simulator is only used:

(i) at the Delivery and Collection Address;

(ii) for the Purpose;

(iii) by people aged 14 years and over and at a minimum height of 150cm;

(iv) in accordance with the Simulator manufacturer’s requirements, recommendations and any applicable verbal directions and instruction manuals provided by Dynamico Lab; and

(v) in accordance with all Laws, rules and regulations applicable to the Simulator and its use.

(b) The Customer must not, and must not allow any third party to:

(i) move the Simulator including relocating it to any place other than the Delivery and Collection Address. For the avoidance of doubt, the Simulator must remain stationary at all times unless permitted by Dynamico Lab;

(ii) use the Simulator for any dangerous or illegal purpose;

(iii) use the Simulator in any way which exceeds the Simulator Limitations;

(iv) use the Simulator, or allow the Simulator to be used, when it is damaged or unsafe;

(v) make any alterations to the Simulator;

(vi) affix or install any accessories, equipment or device on or to the Simulator without Dynamico Lab’s prior written consent; or

(vii) sub-hire the Simulator.

(i) when the Simulator is unattended, keep it locked and keep the keys under the Customer’s control at all times.

5.3. CLEANLINESS

(a) The Customer acknowledges that the Simulator is rented out to the Customer in a clean condition. The Customer must return the Simulator in the same state of cleanliness (inside and out) that it was in on the Start Date (Clean). If the Simulator is not Clean upon return, a cleaning fee will apply as set out in the Hire Form or otherwise provided to the Customer by Dynamico Lab (Cleaning Fee).

(b) The Cleaning Fee charged to the Customer will be Dynamico Lab’s reasonable costs of ensuring the returned Simulator is Clean, as reasonably determined by Dynamico Lab and which may exceed Flat Cleaning Fees.

(c) Without limiting any other clause in this Agreement, if the returned Simulator is not Clean, Dynamico Lab may charge the Customer one of the Flat Cleaning Fees, being:

(i) if the Simulator requires a standard clean (e.g. if there is excessive dirt in the Simulator), the Standard Cleaning Fee; and

(ii) if the Simulator requires extensive cleaning or detailing (e.g. if there are stains on upholstery), the Extensive Cleaning Fee.

(d) The Customer is responsible for removing all personal items and/or food from the Simulator prior to returning it. Dynamico Lab has no responsibility for any personal items that are in the Simulator upon return.

6. FAULTY SIMULATOR

(a) If the Simulator is faulty, breaks down or becomes unsafe to use during the Hire Term (Breakdown), or otherwise while in the possession of the Customer, then the Customer must:

(i) immediately notify Dynamico Lab of the Breakdown;

(ii) not attempt to use or repair the Simulator unless instructed by Dynamico Lab; and

(iii) after Dynamico Lab receives the Customer’s notification, Dynamico Lab will respond promptly and exercise reasonable attempts to diagnose and repair the Breakdown remotely.

(b) If the Breakdown was not caused or contributed to by a breach of this agreement, or otherwise caused or contributed to by the Customer, then:

(i) if repairs cannot be completed within a reasonable time, Dynamico Lab will endeavour to replace the Customer’s Simulator with a similar model and, if such a replacement is not possible, Dynamico Lab will provide the Customer with a refund to the value of the remainder of the Hire Term; and

(ii) any refund under this clause is not an admittance of fault by Dynamico Lab.

7. ACCIDENTS

If the Simulator is involved in an accident or claim during the Hire Term, or if damage or loss is sustained to the Simulator or the property of any third party in connection with the Simulator, the Customer must:

(a) promptly report the incident to the local police (if required by Law);

(b) promptly report the incident in writing to Dynamico Lab;

(c) not, without Dynamico Lab’s prior written consent, make or give any offer, promise of payment, settlement, waiver, release or admission of liability in relation to the incident, except as required by Law;

(d) permit Dynamico Lab or an insurer to bring, defend, enforce or settle any legal proceedings in the Customer’s name in relation to the incident; and

(e) provide to Dynamico Lab, within a reasonable time, any statement, information or assistance which Dynamico Lab or an insurer requests, including by attending a lawyer’s office or a court to give evidence.

8. LOSS, DAMAGE AND PERSONAL INJURY

The Customer will be fully responsible to Dynamico Lab for:

(a) any loss or damage to the Simulator during the Hire Term, or otherwise when the Simulator is in the Customer’s possession, notwithstanding whether the loss or damage was the Customer’s fault, and must give reasonable notice to Dynamico Lab in writing of any such loss or damage;

(b) all reasonable costs incurred by Dynamico Lab in recovering possession of the Simulator and repairing or replacing the Simulator; and

(c) all personal injury or damage to the property of any person which is caused or contributed to by the Simulator during the Hire Term, or otherwise when the Simulator is in the Customer’s possession.

9. INSURANCE

(a) The Customer acknowledges that it is the Customer’s responsibility to ensure it affects and maintains an adequate insurance policy for use of the Simulator during the Hire Term and Dynamico Lab will have no obligations or requirements to insure the Customer’s use of the Simulator under this Agreement. The Customer is strongly encouraged to take out adequate insurance to cover all potential liabilities that could arise from their use of the Simulator.

(b) Dynamico Lab reserves the right to apply any insurance policy it holds in respect of the Simulator during the Hire Term, to damage or loss caused or contributed to by the Customer, however Dynamico Lab is under no obligation to. If Dynamico Lab chooses to make a claim under an applicable insurance policy in accordance with this clause in respect of any damage or loss during the Hire Term, the Customer will be required to pay any excess payable by Dynamico Lab in respect of such a claim.

(c) Subject to any insurance policy of Dynamico Lab that covers the Customer, which Dynamico Lab has indicated it will claim against to cover the Customer, if the Simulator is damaged, destroyed, abandoned, or stolen during the Hire Term, or otherwise while the Simulator is in the Customer’s possession, the Customer must compensate Dynamico Lab for any costs of recovery, repair or replacement of the Simulator.

10. SECURITY DEPOSIT AND CREDIT CARD AUTHORISATION

10.1. SECURITY DEPOSIT

(a) To rent the Customer the Simulator Dynamico Lab requires the payment of a Security Deposit as set out in the hire form or as otherwise specified by Dynamico Lab, to cover any fees, damage or issues with the Simulator (Security Deposit).

(b) Upon return of the Simulator, Dynamico Lab may claim the Security Deposit against any amount owed by the Customer to us under this Agreement.

(c) Dynamico Lab will hold the Security Deposit for a reasonable period of time after the return of the Simulator, until Dynamico Lab is reasonably satisfied that there have not been any damage or other costs incurred by the Customer in relation to the Simulator (Holding Period). If, after the Holding Period, the Customer does not owe any amounts to Dynamico Lab, or if the owing amounts have been claimed from the Security Deposit and there is a remaining amount, then the relevant remaining amount will be paid back to the Customer’s original payment method.

10.2. CREDIT CARD AUTHORISATION

(a) The Customer authorises Dynamico Lab:

(i) to keep the credit card details they provide as part of paying the Security Deposit (Credit Card) on file; and

(ii) to use the Credit Card to recoup any amounts owed to Dynamico Lab within a reasonable time after the return of the Simulator, to the extent those amounts exceed the Security Deposit.

(b) The Customer authorises and requests that Dynamico Lab debits payments from the Credit Card in accordance with this clause ‎10.

(c) The Customer must ensure that the Credit Card has at all times available capacity to be charged any amount potentially payable under this Agreement.

11. DAILY MAINTENANCE

(a) The Customer acknowledges and agrees that the Customer is responsible for the performance and cost of basic daily maintenance and care of the Simulator, including regularly cleaning the Simulator.

(b) The Customer is required to regularly check the Simulator for any defects in its operations or safety during the course of its use.

12. PERSONAL PROPERTY

Dynamico Lab is not liable to any person for any loss of, or damage to, personal property that is left in the Simulator after its return to Dynamico Lab or stolen from the Simulator or otherwise lost or damaged during the Hire Term.

13. OWNERSHIP, POSSESSION AND TITLE

13.1. OWNERSHIP

(a) The Simulator is, and will at all times be and remain, the property of Dynamico Lab, notwithstanding delivery of the Simulator to the Customer or the possession and use of the Simulator by the Customer.

(b) The Customer will not have any right, title or interest in or to the Simulator except as expressly set out in this Agreement.

(c) Dynamico Lab reserves the right to fit all Simulators with a GPS or other similar tracking device in order to locate the Simulator at all times.

13.2. POSSESSION

(a) The Customer must not (and must ensure any other user of the Simulator does not), without Dynamico Lab’s prior written consent, part with possession of the Simulator during the Hire Term.

(b) In the event that the Customer chooses to terminate this agreement, the Customer acknowledges and agrees that Dynamico Lab, its employees and agents are hereby authorised to enter any place where the Simulator is located and use reasonable force to retake possession of the Simulator without liability for trespass or damage.

13.3. ENCUMBRANCES

The Customer must not allow any Security Interest, encumbrance, charge or lien of any kind to arise or remain in relation to the Simulator, including a repairer’s lien, except if:

(a) a repairer’s lien arises, the Customer must take all necessary steps to have it removed or satisfied, or, at Dynamico Lab’s option, Dynamico Lab may remove or satisfy the lien at the Customer’s cost; and

(b) a Security Interest, lien or charge that arises by Law in respect of unpaid rates, taxes, fees or duties of any kind, in which event the Customer must pay any money due so that the Simulator will be free of the lien or charge.

14. PERSONAL PROPERTY SECURITIES

(a) The Customer acknowledges and agrees that:

(i) Dynamico Lab may register any security interest it has in connection with this Agreement (including any security interest over the Equipment arising out of the application of the PPSA to this Agreement) on the PPS Register; and

(ii) if requested by Dynamico Lab, the Customer must immediately sign any documents, provide all necessary information and do anything else required by Dynamico Lab to ensure that any security interest created is perfected and to enable Dynamico Lab to gain first priority for its security interest.

(b) The Customer agrees that sections 115(7), 117, 118, 120, 121(4), 130, 135 and 143 of the PPSA will not apply to this Agreement;

(c) Notwithstanding any exclusions in clause 15(b), the Customer acknowledges the application and importance of the following provisions of the PPSA, which shall remain unaffected and continue to apply to this Agreement: sections 123, 125, 126, 128, 129 and 142.

(d) In this clause:

(i) “PPSA” means the Personal Property Securities Act 2009 (Cth) and its regulations as amended and in force from time to time;

(ii) “PPS Register” means the Personal Property Securities Register established under the PPSA; and

(iii) a term used in this clause is taken to have the meaning defined under the PPSA.

15. EARLY RETURN

(a) Notwithstanding any other clause in this Agreement, Dynamico Lab may demand the early return of the Simulator to the Return Address, or retake possession of the Simulator, if Dynamico Lab reasonably suspects that:

(i) damage to the Simulator or injury to any person in connection with the Simulator is reasonably likely;

(ii) the Simulator may be used for an unlawful purpose; or

(iii) if the agreement is terminated in accordance with clause 18.

(b) If the Customer elects to return the Simulator to the Return Address, or otherwise Dynamico Lab, before the Return Date, the Customer will not be entitled to any compensation or refund unless expressly agreed between the parties.

16. RISK and LIABILITY

16.1. RISK

(a) The Customer will bear all risk of loss or destruction of, or damage to, the Simulator during the Hire Term, or otherwise when the Simulator is in the Customer’s possession.

(b) The Customer assumes all risks and liability for the Simulator and for its use, operation, daily maintenance, repair and storage (including but not limited to loss of profits, loss of revenue, consequential damage, inconvenience or loss of use for any period of time) and for injuries to or deaths of persons and damage to property arising in connection with such use, operation, maintenance, repair or storage.

16.2. LIABILITY

(a) To the maximum extent permitted by law and subject to clause 16.2(b), the total liability of each party in respect of loss or damage sustained by the other party in connection with this agreement is limited to the amount paid by the Customer to Dynamico Lab in most recent Hire Form preceding the date of the event giving rise to the relevant liability.

(b) Clause 16.2(a) does not apply to the Customer’s liability in respect of damage sustained by Dynamico Lab arising from the Customer’s negligent, fraudulent or criminal act or omission.

17. WARRANTIES

(a) To the maximum extent permitted by applicable law, all express or implied representations and warranties not expressly stated in this agreement are excluded.

(b) Nothing in this agreement is intended to limit the operation of the Competition and Consumer Act 2010 (Cth) (ACL). Under the ACL, the Customer may be entitled to certain remedies (like a refund, replacement or repair) if there is a failure with the goods or services Dynamico Lab provides.

18. TERMINATION

18.1. TERMINATION BY DYNAMICO LAB

Dynamico Lab may terminate this Agreement in whole or in part immediately by written notice to the Customer if the Customer is in breach of any term of this Agreement.

18.2. TERMINATION BY THE CUSTOMER

(a) The Customer may terminate this Agreement in whole or in part by written notice to Dynamico Lab.

(b) If the notice under clause 19.2 is:

(i) 5 days or more prior to the Start Date, Dynamico Lab will provide the Customer with a full refund of the Booking Deposit paid; or

(ii) Less than 5 days prior to the Start Date, Dynamico Lab will provide the Customer with a full refund of the Booking Deposit paid, minus a 50% cancellation fee (Cancellation Fee); and

(iii) after the Start Date, the Customer will not be entitled to any refund unless the Simulator is not of an acceptable quality in accordance with the Competition and Consumer Act 2010 (Cth) (ACL).

18.3. EFFECT OF TERMINATION

Upon termination of this Agreement, the Customer must promptly:

(a) pay any payments required by Dynamico Lab in respect of the period of the Hire Term prior to the date of termination; and

(b) subject to any contrary direction in writing given by Dynamico Lab, make available the Simulator and any other goods included in a Hire Form to the Delivery and Collection Address.

18.4. SURVIVAL

Any provision of this Agreement which, by its nature, would reasonably be expected to be performed after the termination, will survive and be enforceable after such termination.

19. GENERAL

19.1. GOVERNING LAW AND JURISDICTION

This agreement is governed by the law applying in Western Australia, Australia. Each party irrevocably submits to the exclusive jurisdiction of the courts of Western Australia, Australia and courts of appeal from them in respect of any proceedings arising out of or in connection with this agreement. Each party irrevocably waives any objection to the venue of any legal process on the basis that the process has been brought in an inconvenient forum.

19.2. BUSINESS DAYS

If the day on which any act is to be done under this agreement is a day other than a Business Day, that act must be done on or by the immediately following Business Day except where this agreement expressly specifies otherwise.

19.3. AMENDMENTS

This agreement may only be amended in accordance with a written agreement between the parties.

19.4. WAIVER

No party to this agreement may rely on the words or conduct of any other party as a waiver of any right unless the waiver is in writing and signed by the party granting the waiver.

19.5. SEVERANCE

Any term of this agreement which is wholly or partially void or unenforceable is severed to the extent that it is void or unenforceable. The validity and enforceability of the remainder of this agreement is not limited or otherwise affected.

19.6. JOINT AND SEVERAL LIABILITY

An obligation or a liability assumed by, or a right conferred on, two or more persons binds or benefits them jointly and severally.

19.7. ASSIGNMENT

A party cannot assign, novate or otherwise transfer any of its rights or obligations under this agreement without the prior written consent of the other party.

19.8. COUNTERPARTS

This agreement may be executed in any number of counterparts. Each counterpart constitutes an original of this agreement and all together constitute one agreement.

19.9. COSTS

Except as otherwise provided in this agreement, each party must pay its own costs and expenses in connection with negotiating, preparing, executing and performing this agreement.

19.10. ENTIRE AGREEMENT

This agreement embodies the entire agreement between the parties and supersedes any prior negotiation, conduct, arrangement, understanding or agreement, express or implied, in relation to the subject matter of this agreement.

20. DEFINITIONS

In addition to capitalised terms defined in the Hire Form, capitalised terms used in this Agreement will have the following meanings:

Term

Meaning

Business Day

means a day (other than a Saturday, Sunday or any other day which is a public holiday) on which banks are open for general business in Western Australia, Australia.

Customer, you, your

means a person described as such in a Hire Form.

Fees

has the meaning set out in the Hire Form.

Hire Form

has the meaning set out in clause 1(a) of these Hire Terms.

Hire Term

means the period of Simulator Hire, from the Start Date, set out in the Hire Form.

Late Charge

means

(a) the amount set out in the Hire Form including GST if the Simulator is returned after the Return Time on the Return Date; or

(b) the amount set out in the Hire Form including GST per day if the Simulator is returned after the Return Date.

Laws

means any applicable statute, regulation, by-law, ordinance or subordinate legislation in force from time to time in the relevant jurisdiction(s) where the Simulator is used and includes any industry codes of conduct.

PPSA

means the Personal Property Securities Act 2009 (Cth) and PPS Register means the register established and maintained under that Act.

Return Address

means the return address set out in the Hire Form.

Return Date

has the meaning set out in the Hire Form.

Security Interest

has the meaning given to it in the PPSA.

Start Date

has the meaning set out in the Hire Form.

Simulator

means the Simulator specified in a Hire Form.

23. INTERPRETATION

In this Agreement, the following rules of interpretation apply:

(a) (singular and plural) words in the singular includes the plural (and vice versa);

(b) (gender) words indicating a gender includes the corresponding words of any other gender;

(c) (defined terms) if a word or phrase is given a defined meaning, any other part of speech or grammatical form of that word or phrase has a corresponding meaning;

(d) (person) a reference to “person” includes an individual, the estate of an individual, a corporation, an authority, an association, consortium or joint venture (whether incorporated or unincorporated), a partnership, a trust and any other entity;

(e) (party) a reference to a party includes that party’s executors, administrators, successors and permitted assigns, including persons taking by way of novation and, in the case of a trustee, includes any substituted or additional trustee;

(f) (this agreement) a reference to a party, clause, paragraph, schedule, exhibit, attachment or annexure is a reference to a party, clause, paragraph, schedule, exhibit, attachment or annexure to or of this Agreement, and a reference to this Agreement includes all schedules, exhibits, attachments and annexures to it;

(g) (document) a reference to a document (including this Agreement) is to that document as varied, novated, ratified or replaced from time to time;

(h) (headings) headings and words in bold type are for convenience only and do not affect interpretation;

(i) (includes) the word “includes” and similar words in any form is not a word of limitation;

(j) (adverse interpretation) no provision of this Agreement will be interpreted adversely to a party because that party was responsible for the preparation of this Agreement or that provision; and

(k) (currency) a reference to $, or “dollar”, is to Australian currency, unless otherwise agreed in writing.

Australia

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