1.1 Any Cabin leased by the Lessor (“My Cabin Mate”) to You is leased subject to these terms and conditions (“Terms”). By leasing and taking possession the Cabin from (“ My Cabin Mate “) You are deemed to have accepted these Terms.
2. USE OF CABIN
2.1 You may only use the Cabin for reasonably suitable purposes and comply with all statutory provisions relating to its use of the Cabin.
2.2 You shall not, nor permit any person, to:
(a) damage or move the Cabin;
(b) modify and/or alter (structural or otherwise) the Cabin in any manner;
(c) keep any animal (including domestic pets) in the Cabin;
(d) smoke in the Cabin;
(e) keep or store anything that presents a fire risk (e.g. no gas heaters, cooking appliances and/or flammable liquids and substances);
(f) keep or store anything that may damage the Cabin and in particular the carpet;
(g) paint, mark or otherwise change the appearance of the Cabin;
(h) use nails and/or any other thing which may cause permanent holes and/or marks in the Cabin; and/or
(i) use the Cabin for any unlawful purpose.
2.3 My Cabin Mate does not give any warranty or representation (express or implied) that the Cabin is suitable or will remain suitable for use by You or that any use of the Cabin.
2.4 The Cabin is not intended for permanent or long term use. If You wish to use the Cabin for such purposes You must obtain all the necessary consents/permits from the Council at Your cost and You fully indemnify (including client/solicitor costs) My Cabin Mate against any action taken by the Council against it.
3. DELIVERY AND CABIN SITE
3.1 You must ensure that My Cabin Mate has suitable access to the Site and You will not move or attempt to move the Cabin once it has been placed on the Site.
3.2 My Cabin Mate will not be liable for any loss (including consequential loss) from any delay in delivery.
3.3 My Cabin Mate will remove the Cabin within 10 working days of the end of lease. In order to remove the Cabin You grant My Cabin Mate and its representatives a licence to enter onto the Site and remove the Cabin.
4. RENT AND OTHER PAYMENTS
4.1 You will pay My Cabin Mate the Rent in advance at the intervals shown out on the front page. The Rent, Bond and the Delivery Fee must be paid prior to the Cabin being delivered unless otherwise agreed in writing. In addition, You will pay any additional delivery or removal charges (e.g. hiab or crane hireage, ferry costs etc.).
4.2 All Rent shall be paid by automatic payment to the bank account nominated by My Cabin Mate
4.3 My Cabin Mate reserves the right to charge interest at a rate of 10% per month or part thereof on any moneys unpaid seven (7) days after the due date.
4.4 You may not deduct or withhold any amount (whether by way of set-off, counterclaim, retention or otherwise) from any money owing to My Cabin Mate.
4.5 You shall be liable for all costs of repossession, debt collection, recovery or enforcement including all expenses and legal costs (on a client solicitor basis) incurred by My Cabin Mate. My Cabin Mate may charge $5.00 per phone call/text message, $15.00 per email/letter and $50.00 for each Site visit in connection with the recovery or attempted recovery of any monies owed by You to My Cabin Mate.
5.1 Risk in the Cabin shall pass to You when the Cabin is delivered to the Site. You are responsible for ensuring that full replacement insurance is put in place in the joint names of the parties with a reputable insurance company.
5.2 You shall not, nor permit any person, to do anything which may void the insurance for the Cabin.
5.3 You shall indemnify My Cabin Mate against all damages, losses or liabilities which may arise in respect of the Cabin, its use by You or by any other party which are not covered by insurance.
5.4 Where any damage, loss or liability arises in respect of the Cabin is caused (directly or indirectly) by You, and My Cabin Mate claims on its insurance You shall pay any applicable insurance excess up to $2,500.00.
6. KEY AND LOCK
6.1 My Cabin Mate will supply You with one (1) key to the Cabin on delivery. You will be liable for the cost of replacing any key not returned and/or any replacement key provided to You (including the cost of any courier or delivery charges). My Cabin Mate will provide any replacement key as soon as possible but it may take up to five (5) working days.
6.2 You shall not change the lock without first obtaining written consent from My Cabin Mate to do so.
7. MAINTENANCE AND DAMAGE
7.1 The Cabin will be delivered to You in good condition. The condition and any damage will be recorded by the parties on the Inspection Condition Report on delivery.
7.2 You must return the Cabin in the same condition as recorded in Cabin Inspection Report (subject to any fair wear and tear arising from reasonable use of the Cabin). You must pay for the cost of repair of any broken/cracked glass, damage to the door, walls, window, light fittings, carpet and power points in the Cabin.
7.3 You must immediately notify My Cabin Mate of any accident or defect (e.g. any leak, crack in a window) in the Cabin.
7.4 If the Cabin is damaged or returned to My Cabin Mate in a dirty condition You will be liable for the cost of making good that damage and any cleaning costs. Where Your bond does not cover the cost of such repairs and cleaning You will be required to pay the remainder to My Cabin Mate (subject to the default interest charges set out at clause 4.3).
8. RIGHT OF INSPECTION
8.1 My Cabin Mate and its representatives may inspect the Cabin on giving You 24 hours written notice to do so. No such notice is required in the case of an emergency.
9. OWNERSHIP OF THE CABIN
9.1 Notwithstanding that You have possession and use of the Cabin during the Term of the Agreement, the Cabin shall at all times remain the property of My Cabin Mate. You must not remove nor permit anyone to remove the My Cabin Mate name plates attached to the Cabin. You hold the Cabin as “Bailee” and as such must return the cabin to My Cabin Mate on request.
10. PROHIBITION TO SELL OR CHARGE THE CABIN OR ASSIGN AGREEMENT
10.1 You will not:
(a) sell, transfer or sign or sublease, mortgage, pledge or otherwise deal with the Cabin;
(b) assign Your rights under this Agreement; and/or
(c) give any security interest over the Cabin to anyone other than My Cabin Mate.
10.2 If You sell the goods, the proceeds of sale are deemed to be held on trust for My Cabin Mate and My Cabin Mate shall have the right to trace the proceeds of any such illegal sale.
11.1 The lease is for the Term shown on the front page. If My Cabin Mate permits You to keep possession of the Cabin after the expiry of the Term, the lease of the Cabin shall:
(a) revert to a month-to-month lease;
(b) be terminable by You on giving My Cabin Mate one calendar months written notice to do so; and
(c) continue to be subject to these terms and conditions.
11.2 The Guarantor(s) acknowledges their obligations continue during any such month-to-month lease.
11.3 You may apply to My Cabin Mate in writing at any time during the Term and request that the lease be terminated. My Cabin Mate may, at its own discretion, agree to such early termination upon conditions determined by My Cabin Mate.
12. TERMINATION AND REPOSSESSION
12.1 A “Default Event” shall be one or more of the following:
(a) any default by You under this Agreement;
(b) You become insolvent or are adjudged bankrupt;
(c) a receiver, liquidator, official assignee or statutory manager of Your assets is appointed;
(d) You make or propose an arrangement or compromise with creditors; or
(e) any other event which in the sole discretion of My Cabin Mate gives rise to concern as to the timely payment of the Customer’s debts.
12.2 Where a Default Event occurs, and without prejudice to any other remedies, My Cabin Mate may:
(a) demand immediate payment of the arrears, as well as payment in advance for the Cabin; or
(b) terminate this Agreement and take possession of the Cabin but without releasing You from any liability in respect of any breach or non-observance of any of the provisions contained or implied in these Terms.
If My Cabin Mate terminates this Agreement, You irrevocably grant to the My Cabin Mate and its’ representatives the right to enter upon the Site, without notice and without liability whatsoever, to repossess the Cabin.
12.3 If this lease is terminated by reason of default (then without prejudice to its other rights at law or in equity) My Cabin Mate may demand immediate payment of all or any of the following:
(a) all arrears of the Rent and other money then due and payable by You under the lease;
(b) the costs of repossession of the Cabin;
(c) My Cabin Mate loss on the lease to be notified by My Cabin Mate to You; and
(d) default interest, along with all costs and expenses incurred by My Cabin Mate in enforcing this Agreement.
13. CONSUMER GUARANTEES ACT
13.1 Nothing in the Terms is intended to have the effect of contracting out of the provisions of the Consumer Guarantees Act except to the extent permitted by the Act, and the Terms are to be modified to the extent necessary to give effect to that intention.
14.1 My Cabin Mate may with Your consent photograph the Cabin after delivery and use that image on its Facebook page and/or website www.mycabinmate.com.au. My Cabin Mate agrees not to identify You without Your permission and will only generally describe the location by town or city.
15. PERSONAL PROPERTY SECURITIES ACT 2009(“PPSA”)
15.1 Where the Term of the lease is for 1 year or longer, You grant a security interest (as defined by the PPSA) in favour of My Cabin Mate . You agree to provide all information necessary for My Cabin Mate to register a financing statement to perfect its security interest on the Personal Property Securities Register prior to the delivery of the Cabin. You waive Your right to receive a copy of any verification statement or financing change statement under the PPSA. My Cabin Mate will discharge the financing statement within 15 working days after You have performed all obligations under the security agreement.
16. CREDIT ENQUIRIES
16.1 You authorise My Cabin Mate to make such enquiries from third parties as to Your credit worthiness as required by My Cabin Mate from time to time.
16.2 You authorise My Cabin Mate to collect, retain and use any information it, and divulge it to third parties for debt collection purposes. My Cabin Mate agrees not to on-sell the information to third parties for marketing purposes.
17. INTELLECTUAL PROPERTY
17.1 The specifications and design of the Cabin(s), My Cabin Mate documentation (including this Agreement) and all marketing and promotional materials, along with My Cabin Mate trade marks and trade name are the sole property of My Cabin Mate (“Intellectual Property”) No right or licence is granted to You under this Agreement to use any of the Intellectual Property without first obtaining My Cabin Mate written consent.
18. PRIVACY ACT 1988
18.1 For the purposes of the Privacy Act 1988, My Cabin Mate will collect and use personal information about You for the purpose of the leasing the Cabin to You. My Cabin Mate will take all reasonable precautions to protect Your personal information and use it for proper purposes. However, You acknowledge that such personal information may be disclosed to debt collection agencies as set out at clause 16. You have the right to access and correct Your personal information.
19.1 In the event of default by You, You irrevocably appoint My Cabin Mate as its attorney to do on behalf of You anything that You ought to do under this Agreement.
20.1 Except as expressly provided for under the Terms, the liability of My Cabin Mate whether in contract, tort or otherwise for any loss, damage or injury arising directly or indirectly from any defect in or non-compliance of the Cabins or from any other breach of My Cabin Mate obligations under the Terms shall not in any event exceed an amount equivalent to the price invoiced by My Cabin Mate for the Cabin. My Cabin Mate shall not be liable for any consequential injury or specific damage or loss of any kind whatsoever.
21. CUSTOMERS COMPLIANCE AND INDEMNITY
21.1 You shall comply with the provisions of all statutes and all rules or regulations in force in relation to the Cabin and its use and occupation of the Cabin.
21.2 You shall indemnify My Cabin Mate against all liabilities, costs, expenses, damages and losses (including any direct, indirect or consequential losses) for any breach of this Agreement.
22.1 This Agreement contains the entire agreement between You and My Cabin Mate in relation to the Cabin and cannot be altered, amended, modified or otherwise changed except in writing signed by both parties.
22.2 Notices to You under this Agreement may be sent Your address and/or email as shown in this Agreement.
22.3 No indulgence granted to You by My Cabin Mate shall in any way prejudice My Cabin Mate rights.
23.1 Each Guarantor:
(a) guarantees (jointly and severally if more than one) repayment to My Cabin Mate of all amounts payable by You pursuant to this Agreement, and the performance of all Your obligations under this Agreement;
(b) acknowledges that My Cabin Mate has entered into this Agreement with You at the request of the Guarantor, that My Cabin Mate might not have done so without the Guarantor’s guarantee, and that My Cabin Mate doing so is a benefit to the Guarantor;
(c) agrees that if for any reason any amounts payable by You under this Agreement or any collateral securities are not recoverable by My Cabin Mate, whether as a matter of law or as a matter of fact, the Guarantor will indemnify My Cabin Mate against any resulting loss, and will pay the amount of any such loss to My Cabin Mate as a principal debtor and on demand.
(d) agrees that their obligations as a Guarantor are absolute and unconditional, and will not be released or in any way affected by:
(i) this Agreement being unenforceable or otherwise defective; or
(ii) any variation or release of this Agreement, or any other Guarantor; or
(iii) any concessions by My Cabin Mate to You or to any other Guarantor; or
(iv) the insolvency, bankruptcy or liquidation (as appropriate) of You or any other Guarantor; or
(v) any other act, omission, or rule of law which would, were it not for this clause, release a guarantor or indemnifier, and irrevocably waives any rule of law to a different effect.
(e) Acknowledges that the Guarantor is not a “Debtor” for the purposes of the PPSA and, to the extent permissible by law, waives any notices or rights of a Debtor under PPSA to the extent inconsistent with these terms.
(f) Acknowledges that the Guarantor has either had independent legal advice prior to executing these terms or, if that has not occurred, that is solely the Guarantor’s own choice freely made, and as a result the Guarantor irrevocably waives any rights which the lack of that independent advice might otherwise have given the Guarantor