Terms & Conditions
“Australian Consumer Law” means Schedule 2 to the Competition and Consumer Act 2010 (Cth).
“Company” means Allshelter® Pty Ltd (ACN 163 288 355).
"Customer” means the party placing the Order with or purchasing Products from the Company.
"Order" means an offer by a Customer to purchase Products from the Company.
“PPS Act” means the Personal Property Securities Act 2009 (Cth) and its associated Regulations as varied from time to time.
“PPSR” refers to the Personal Property Securities Register established under the PPS Act.
“Products” includes any shelters, structures, goods, services or materials ordered by the Customer from the Company or supplied by the Company on the Order of the Customer.
MTO Product refers to made to order products which includes any Product that has been specially ordered for a Customer (whether locally or from overseas) or which is specially manufactured for the Customer or is not a stocked item.
“Sale T&Cs” means these Terms & Conditions of Sale or the current Terms & Conditions of Sale as varied and applicable from time to time.
“Warranty” means the Allshelter® Pty Ltd Warranty Terms and Conditions as varied and applicable at the time of purchase.
“Writing” includes quotes, letters, fax, email and SMS or other similar electronic communication methods.
1. Sale Terms
1.1 The current Sale T&Cs applicable from time to time shall apply to all sales agreements between the Company and the Customer including all Orders or other sales and will prevail over all prior conditions previously agreed between the parties.
1.2 The Sale T&Cs may be varied from time to time by the Company without notice and the Sale T&Cs current, as published on the website of the Company, at the time of placing any specific order or part of an order shall apply to such Orders.
1.3 The Company may, but shall not be required nor responsible to notify the Customer of the existence or content of any variations of the Sale T&Cs.
2. Order and Acceptance
2.1 Any Order submitted to the Company by a Customer shall be deemed to be made pursuant to the terms of the Sale T&Cs.
2.2 Any Order placed or made by the Customer shall be an irrevocable offer and shall constitute an unqualified acceptance by the Customer of the Sale T&Cs.
2.3 The Company reserves the right to accept or reject your offer for any reason, including without limitation, the unavailability of any Product, an error in the Product description on the Company website, or an error in your Order. The Company may require additional verification or information before accepting any Order.
2.4 The Company may accept any Order in whole or in part by providing confirmation of the Order. Acceptance may be oral or in writing at the Company’s discretion. Accepted Orders may not be varied or cancelled by the Customer without the Company’s written consent and (subject to the conditions set out herein) there is no right of return and where consent is provided may be subject to an Order Cancellation Charge of 20% of the value of the Products Ordered.
2.5 Any MTO Product shall not in any case be eligible for return.
2.6 The Company reserves the right to substitute Products that are not available for comparable Products of equal or higher specification, unless the order specifies that the Products are “not to be substituted”.
3.1 he price of the Products shall be as agreed in writing between the parties or where there is no agreed price, the price shall be the amount indicated on a Tax Invoice provided by the Company to the Customer regarding Products ordered.
3.2 If the Company’s cost of supplying the Product increases by more than 10% due to any change in the amount of any GST and other taxes, currency fluctuations, duties, freight and transport charges which may be applicable, the Company may upon written notice at any time before delivery increase the price of the Products by the same amount.
3.3 The Company may charge in addition to the price of the Products the recovery rate for delivery, freight, demurrage and handling at rates dependent on distance and volume of Products supplied. Such rates are subject to change without notice.
4. Credit granting and payment
4.1 The Company may accept an Order and require a deposit on Order and the balance prior to delivery, or may accept an Order and allow credit for part or all of its value as a condition of delivery. Credit approval once granted may be withdrawn at any time. Where credit approval has not been granted, or is withdrawn, payment for all Products supplied is required before delivery (cash or cleared funds). Where credit approval has been granted to the Customer, all Tax Invoices issued by the Company are due and payable by the date for payment agreed in writing by the Customer and the Company but if no agreement in writing is made then no later than thirty (30) days from the date of the Tax Invoice.
4.2 he Company may charge in addition to the price of the Products an Account Fee for the administration and finance cost of credit at a rate dependent on the amount and value of credit granted. The rate of such Account Fee is specified in the Account opening letter and is subject to change on provision of written notice.
5. Credit Policy and Default
5.1 The Customer shall be in default of the Sales T&Cs and the agreement with the Company in the event that the Customer:
5.1.1 fails to make any payment payable pursuant to the Sales T&Cs within the payment terms; or
5.1.2 breaches any of the warranties, obligations or agreements set out in the Sales T&Cs; or
5.1.3 commits an act of bankruptcy or has a receiver, administrator or liquidator appointed.
5.2 The Company may charge interest on all amounts not paid by the Customer within the term for payment at a rate of 1.5% per calendar month calculated from the due date and accruing monthly therefrom until the date of payment. If the Customer is in default, the Customer must reimburse and indemnify the Company from and against all expenses, costs and disbursements incurred by the Company in pursuing the debt including all reasonably charged legal costs on a “solicitor and own client” basis and the fees charged to the Company by any mercantile agency. If the Customer fails to pay the price by the due date, the Company may at its sole discretion:
(a) cancel any provision of credit to the Customer;
(b) reverse any rebates and discounts allowed;
(c) change credit payment terms including require cash pre‑payment for any further Products ordered;
(d) provide to a credit reporting agency details of the payment default;
(e) commence legal proceedings against the Customer (and any guarantors) for all outstanding amounts, interest and costs;
(f) decline to supply Products to the Customer and terminate any other agreement with the Customer; and;
(g) exercise any other rights at law including pursuant to the PPS Act.
5.3 A certificate of debt signed by a representative of the Company shall be prima facie evidence and proof of money owing by the Customer to the Company at the time of the certificate.
6.1 The Company reserves the right, upon production of a Tax Invoice, to recover from the Customer any Goods and Services Tax (GST) payable in respect of supply of Products.
6.2 Unless expressly included all amounts expressed or described in any agreement or in invoices are GST exclusive.
7.1 Delivery of the Products shall be deemed to have taken place when:
(a) the Customer takes possession of the Products at the Company’s address if the Products are collected; or
(b) the Products are delivered at the Customer’s nominated address (in the event that the Products are delivered by the Company or the Company’s nominated carrier); or
(c) the Customer’s nominated carrier takes possession of the Products in which event the carrier shall be deemed to be the Customer’s agent.
7.2 The Customer’s nominated address shall be the address specified in the Commercial Account Application Form or agreed in writing by the Company.
7.3 Delivery of Products may not be refused by the Customer after an Order has been accepted by the Company. Where prices are stated as inclusive of delivery, delivery is to the delivery point accepted by the Company.
7.4 The Customer shall make all arrangements necessary to accept delivery of the Products whenever they are tendered for delivery. In the event that the Customer is unable or unwilling to accept delivery of the Products as arranged, then the Company shall be entitled to charge all reasonable costs for the demurrage, return, storage and redelivery. The current Storage Charge is $30 per pallet space per week (or part thereof) from the date the Products are tendered for delivery until the date of delivery.
7.5 Delivery of Products to a third party or place nominated in any way by the Customer is deemed to be delivery to the Customer pursuant to the Sale T&Cs.
7.6 The Company shall not be liable for any loss or damage or expense arising from failure by the Company to deliver the Products at a specified time, promptly or at all and the failure of the Company to deliver at a specific time or at all shall not entitle either party to treat this contract as repudiated.
8. Product Information, Prices, Photos and Images
8.1 The Product range on the Company website may vary from printed catalogues. Product information, photos and images may differ from the actual Products. Photos and images on the website, electronic mail and in printed material are for illustration purposes only.
9. Passing of Risk
9.1 The risk (but not title) in respect of Products sold passes to the Customer immediately upon delivery to the customer, the Customer’s agent or courier as the case may be.
10. Retention of Title to the Products Pending Payment
10.1 Orders are accepted on condition that ownership of the Products shall remain with the Company and shall not pass to the Customer until the Company has received in full (cash or cleared funds) all sums due to it in respect of the Products and all other sums which are or which become due to the Company from the Customer on any credit account with the Company or pursuant to the Sale T&Cs.
10.2 Until ownership of the Products has passed to the Customer, the Customer shall keep the Products in question as fiduciary agent and bailee for and on behalf of the Company.
11. Personal Property Securities
11.1 Words in italic shall have the meaning and definitions set out in the PPS Act.
11.2 The Customer acknowledges that by virtue of the Sale T&Cs the Company has a security interest in the Products for the purposes of the PPS Act and the proceeds of sale of such Products and to the extent applicable the PPS Act applies to any agreement pursuant to these Sale T&Cs.
11.3 The Customer acknowledges that the Company may do anything reasonably necessary, including but not limited to registering any security interestwhich the Company has over the Products or the purchase money security interest (PMSI) in the Products on the PPSR in order to perfect thesecurity interest and comply with the requirement of the PPS Act. The Customer agrees to do all things reasonably necessary to assist the Company to undertake the matters set out above. The Customer waives pursuant to section 157(3)(b) of the PPS Act the right to receive notice of a financing statement, financing change statement or a verification statement in relation to any registration on the PPSR.
11.4 The Customer and the Company agree that, pursuant to section 115 of the PPS Act, the following provisions in the PPS Act do not apply in relation to a security interest in the Products to the extent, if any, mentioned:
(a) section 125 (obligation to dispose of or retain collateral) in that the Company may extend the time for delay as the Company considers appropriate;
(b) section 129 (disposal by purchase);
(c) section 130 (notice of disposal), to the extent that it requires the secured party to give a notice to the grantor before disposal;
(d) subsection 132(4) (statement of account if no disposal);
(e) section 135 (notice of retention);
(f) section 142 (redemption of collateral);
(g) section 143 (reinstatement of security agreement).
11.5 Pursuant to section 275(6) of the PPS Act, the Customer and Company agree that neither will disclose to any interested person information pertaining to the Company’s security interest as set out in section 275(1).
11.6 The Customer undertakes:
(a) promptly to do all things including signing any further documents and providing any further information which the Company may reasonably require to enable it to perfect and maintain the perfection of its security interest or PMSI (including by registration of a financing statementor financing change statement on the PPSR and the Customer warrants that any such information the Customer provides will be complete, accurate and up-to-date in all respects); and
(b) to give the Company not less than fourteen (14) days prior notice of any proposed change in the Customer’s name or any other change in the Customer’s details (including, but not limited to, changes in its address, phone or facsimile number and trading name).
12. Returned Cheques
12.1 An administration fee of $55.00 including GST plus all associated bank charges may be applied to any cheque payment returned unpaid by the bank for whatever reason. This fee may increase without notice to cover the Company’s expenses and cost.
13.1 Payments must be made in Australian dollars. Payments remitted in foreign currency must include all related bank charges and currency conversion costs both on the payment and receiving end.
14. Defects, Claims and Returns
14.1 The Customer accepts that minor defects in the Products do not constitute grounds for a claim or return.
14.2 The Customer accepts that MTO Products may not be returned. Refunds or returns will only be given to the extent there is a non-excludable right to return or refund under the Australian Consumer Law or the Sale of Goods Act NSW or other applicable legislation.
14.3 The Customer will inspect and check all Products received and within seven (7) days of receipt notify the Company in writing of any shortage in quantity, defect, incorrect specification, damage or Products not in accordance with the Customer’s Order. The Customer is responsible for checking that Products comply with those Ordered prior to use. After use or expiry of the time stated herein the Product shall be deemed to be free from any defect or damage at delivery.
14.4 The Customer agrees that it will not return any of the Products without first informing the Company so that a Returns Authorisation (“RA”) number may be issued by the Company for valid returns. The RA is valid for seven (7) days. Returned Products must be unmarked, in a saleable condition and must include the original packaging, delivery document and Tax Invoice.
14.5 No credit or replacement will be given unless and until Products so returned have been verified as being valid for return or are defective and are returned with a valid RA number. The Company reserves the right to recover its costs where the returned Products prove not to be valid for return or are not defective. Returned Products must be returned to the Company at Lot 2 Narrandera Street, Lake Cargelligo NSW 2672 or another address agreed by the Company. All freight, handling and other charges in relation to returning Products (other than Products defective or not ordered) are the responsibility of the Customer.
14.6 The Customer shall be liable for a Restocking Fee on all Products accepted for return. The Restocking Fee shall not apply to Products returned for being defective, damaged or for failing to comply with the Order. The current Restocking Fee is 20% of the price of the Products returned.
15. Disputed Charges
15.1 The Customer accepts that minor defects in the Products do not constitute grounds to dispute a Tax Invoice or part thereof.
15.2 If the Customer objects to any invoiced item or amount, the Customer may withhold payment of the disputed amount, but only if on or before payment or the due date for payment (whichever occurs first), the undisputed amount of the Tax Invoice is paid in full and notice in writing of the dispute is given to the Company, setting out the details of the amount disputed, the reasons for the dispute, and the basis for calculating the disputed amount. The Company will investigate all disputes. If the amount is found to be payable (in whole or in part) then the Customer must pay the due amount within seven (7) days of receiving notice and the basis of the decision. Invoiced amounts that are not objected to in writing within thirty (30) days of the due date will be deemed to be correctly charged and accepted by the Customer and the customer waives all claims against the invoice.
16.1 Notwithstanding any other provision to the contrary, if any amount is not paid by the Customer within the terms for payment, the Company reserves the following rights in relation to the Products until all amounts owed by the Customer to the Company in respect of the Products and all other Products supplied to the Customer by the Company at any time are fully paid:
(a) legal and equitable ownership of the Products; and
(b) to retake possession of the Products; and
(c) to keep or resell any of the Products repossessed.
16.2 The Customer hereby grants full leave and irrevocable license without any liability to the Company and any person authorised by the Company to enter any premises by any means where the Products may for the time being be placed or stored for the purpose of retaking possession of the Products.
17. Warranties, Disclaimer and Limitation of Liability
17.1 Except as expressly provided in the Sale T&Cs or as set out in the Company’s acceptance and to the extent permitted by law, no guarantee, warranty, condition, undertaking or term, express or implied, statutory or otherwise, as to the condition, quality, performance, aesthetic appearance, merchantability or fitness for purpose of any Products provided under this agreement is given or assumed by the Company and all such guarantees, conditions, warranties and liabilities (including liability as to negligence) express or implied relating to such Products are, subject to clauses 17.6 and 17.7, hereby excluded.
17.2 All Products and MTO Products are built to withstand design wind speeds as detailed in the relevant Company drawings and information. These wind speeds have been determined from the Australian Standard AS1170.2:2011 and include an allowance for building height, but not for all local topographic effects. If the structure is to be located in an area of high winds such as a hilltop or similar exposed topography and the Customer wants to ensure that the appropriate Product is supplied, the Customer must include in the Order the relevant wind rating and special conditions. The Company does not make any representations or warranties in relation to ultimate wind speeds differing to what is detailed in the relevant Company drawings and information unless confirmed in writing.
17.3 Products supplied may be supported by various components such as posts, walls, existing buildings, and shipping containers. The structural performance of each of these components is critical to the performance of the Products. The Company takes no responsibility for any damage arising from the failure of support components supplied by others.
17.4 Due to the inherent variability in ground conditions the Company takes no responsibility for any damage arising from foundation or anchorage failure. It is the responsibility of the Customer to check the suitability of foundations or anchorages for Products with a qualified engineer acquainted with local conditions.
17.5 The Customer must comply with the Warranty terms and conditions and if the Warranty does not apply the Products must be installed and used in accordance with the instructions provided by the Company or all warranty is voided. It is the Customer's responsibility to obtain any development or other approvals or licenses for the erection of Products, if required.
17.6 The Company acknowledges that certain legislation in Australia, including the Australian Consumer Law, provides guarantees and rights which cannot be excluded, restricted or modified or which may in certain cases only be modified or restricted to a limited extent. Nothing in these terms and conditions or the Warranty excludes, restricts or modifies, or is intended to exclude, restrict or modify, any guarantee, condition, warranty, right or liability implied by law (including any guarantee, condition, right or liability imposed under the Australian Consumer Law) which cannot lawfully be excluded, restricted or modified.
17.7 Notwithstanding clause 17.1, if a sales agreement constitutes a supply of Products to which the exclusion in 17.1 cannot apply then to the full extent permitted by law, the liability of the Company in respect of a breach of a guarantee, condition or warranty implied by legislation (other than any non-excludable implied guarantees, conditions or warranties), including liability for any consequential loss which the Customer or any other entity or person may sustain or incur, will be limited, at the Company’s option, to:
i) If the breach relates to supply of Products:
a) The provision of a refund or;
b) Replacement of the Products; or
c) Repair of the Products; or
d) The payment to the Customer of the reasonable cost of having the Products repaired or replaced.
ii) If the breach relates to services:
a) The provision of a refund; or
b) Re-supply of the service; or
c) The payment to the Customer of the reasonable cost of having the service re-supplied.
17.8 The Customer acknowledges and agrees that in entering into a sales agreement it has not relied in anyway on the Company’s representations and that it has satisfied itself as to the suitability of the Product for the Customer’s purposes.
17.9 To the full extent permitted by law the Company will not be liable to the Customer for any aesthetic change, loss or damage (including loss of profits or any other indirect or consequential loss or damage including loss or damage to goods belonging to the Customer or a third party) arising directly or indirectly from:
i. the supply or use by the Customer of any Product; or
ii. delayed or non-delivery of the Products for any reason including but not limited to loss, damage, theft of the Products whilst in transit; or
iii. any breach by the Company of its obligations under a sales agreement.
17.10 Subject to the provision in the Sales T&Cs and the requirements of the Warranty, the Company warrant the Products on the terms and conditions specified in the Warranty.
18. Set-off and assignment
18.1 The Customer shall not be entitled to set off against or deduct from the price of Products sold any sums owed or claimed to be owed to the Customer by the Company.
18.2 The Customer may not assign or subcontract any contract for the purchase of Products or its rights or obligations under a sales agreement.
19. Force Majeure
19.1 The Company will have no liability to the Customer in relation to any loss, damage or expense caused by the Company’s failure to complete an Order or delivery or contract as a result of fire, flood, tempest, earthquake, riot, civil disturbance, theft, crime, strike, lock‑out, war or the inability of the Company’s suppliers to supply necessary materials or any other matter beyond the Company’s control.
20. Privacy consent
20.1 The Company may give information to third parties about the Customer, its guarantors, directors or proprietors for the following purposes:
(a) to obtain a consumer credit report about the Customer, its guarantors, directors or proprietors;
(b) to allow the credit reporting agency to create or maintain a credit information file containing information about the Customer, its guarantors, directors or proprietors;
(c) for registration on the PPSR or other public records or registers; and
(d) to obtain commercial credit information about the Customer, its guarantors, directors or proprietors from a credit reporting agency.
21. Waiver of terms of a sales agreement
21.1 The failure or indulgences by the Company to exercise, or delay in exercising, any right, power or privilege available to it under a sales agreement will not operate as a waiver thereof or preclude any other or further exercise thereof or the exercise of any right or power and the Company shall be entitled to require strict compliance at all times.
22.1 The sales agreement is governed by and will be construed in accordance with the laws of the State of New South Wales, Australia.
22.2 The parties agree to submit to the exclusive jurisdiction of the Courts of the State of NSW if the Local Court has jurisdiction the Parties consent to the exclusive jurisdiction of the Local Court closest to the Company’s place of business.
22.3 Any sales agreement formed pursuant to the Sale T&Cs shall be deemed to have been entered into at the Company’s place of business.
23. General provisions
23.1 The Sale T&Cs and the accepted Order represents the entire agreement between the Parties and no agreement or understanding varying or extending the terms of these Sale T&Cs shall be legally binding upon either Party unless in writing and signed by both Parties or allowed by these Sale T&Cs.
23.2 The Company may serve any notice or Court document on the Customer by hand or by forwarding it by post to the address of the Customer last known to the Company, or where a fax number or an email address has been supplied by the Customer, by sending it to that number or address. Such notices shall be deemed to be given:
(a) where delivered by hand, on the day of delivery;
(b) where sent by post, two (2) business days after the day of posting; and
(c) where sent by facsimile or email on the day of dispatch, provided that a clear transmission report is obtained.
23.3 If any term of the sales agreement shall be invalid, void, illegal or unenforceable, they shall be severed from the agreement and the remaining provisions shall not be affected, prejudiced or impaired by such severance.
23.4 The Company may assign or licence or subcontract all or any parts of its rights and obligations hereunder without the Customer’s agreement or consent.
23.5 In the event that the Customer sells or otherwise disposes of its business (or any part thereof), the Customer shall be responsible to immediately notify the Company in writing of such sale to enable the account to be closed. If the Customer fails to so notify then the Customer shall be jointly and severally liable with the third party acquiring the business (or part thereof) to the Company for the payment of Products subsequently sold to the third party on the Customer’s account before the Company received such notice as if the Customer had ordered the Products itself.
Allshelter® Terms and Conditions of Hire
Allshelter® Pty Ltd
Hire Terms & Conditions as displayed on www.allshelter.com.au
These Hire Terms & Conditions are applicable to all hire of Equipment between the Company and the Hirer.
“Account Application” means the application by the Hirer for an account with the Company whether completed prior to or contemporaneously with the acceptance of the Hire T&Cs.
“Approved Credit Hirers” means Hirers approved by the Company for a Credit Account for use for Hire Agreements.
“Charges” are any charges incurred pursuant to the terms of the Hire T&Cs including default charges, Charges set out in clause 5 and LDW.
“Commencement Date” means the date stipulated in the Hire Agreement or if no commencement date is stipulated, the date the Hirer takes possession of the Equipment.
“Equipment” means any equipment belonging to the Company, including but not limited to shelters, containers and any associated or attached accessories and parts available for hire.
“Fee” is the agreed hire fee for the hire of the Equipment pursuant to the Hire Agreement.
“Hire Agreement” means any Hire Agreement formed pursuant to the Hire T&Cs between the Company and the Hirer.
“Hire Schedule” means any document headed “Hire Schedule” or document relating to the Hire Agreement specifying the Equipment, Fee and/or Commencement date.
“Hire T&Cs” means the current Hire Terms & Conditions applicable to a Hire Agreement.
“Hirer” means the Hirer engaging the Company to provide services and/or supply goods, being the Approved Credit Hirer or the Hirer specified in the Hire Agreement.
“LDW” is the Loss Damage Waiver assurance plan.
“MTO Equipment” includes any Equipment that has been specially ordered for a Hirer (whether locally or from overseas) or which is specially manufactured for the Hirer or is not a stocked item.
“Initial Hire Term” means the term set out in the Hire Agreement.
“Company” means Allshelter® Pty Ltd (ACN 163 288 355).
“Parties” refers to the Company and the Hirer.
“Payment Date” means the date for payment of Fees and Charges as agreed in writing between the Parties, and if no Payment Date is specified, then payment shall be due on the date stipulated by the Company in any Tax Invoice or other document.
“PPS Act” means the Personal Property Securities Act 2009 (Cth) and it’s associated Regulations as varied from time to time.
“PPSR” refers to the Personal Property Securities Register established under the PPS Act.
1. Hire Agreement and Account Application
1.1. All Hire Agreements consists of:
• The Hire T&Cs applicable at the time of entering into the Hire Agreement;
• Any Guarantee completed on behalf of the Hirer;
• Each Hire Schedule.
1.2. For Approved Credit Hirers the Hire Agreement also includes any Credit Application approval terms and any other terms stipulated by the Company in the approval notice or such other terms as the Company may notify the Hirer from time to time in writing.
1.3. The Company may on receipt of a Commercial Account Application approve a Hirer for a Credit Account at its discretion.
1.4. Despite any other provision in the Hire T&Cs the Company may at anytime vary and change the terms of the Hire T&Cs and such change shall become the Hire T&Cs for any subsequent Hire Agreement.
2. Warranties, obligations and liabilities
2.1. The Company shall subject to the Hire T&Cs hire the Equipment specified in the Hire Agreement to the Hirer clean and in good working order.
2.2. The Hirer warrants and agrees that it is a condition of the Hire Agreement that the Hirer, its agents or employees:
2.2.1. Accept the hire is for the use of the Hirer only and the Hirer must not allow or authorise anyone else to use or have possession of the Equipment;
2.2.2. Will pay all Fees and Charges pursuant to the Hire T&Cs by the Payment Date.
2.2.3. Has not relied on any representation from the Company or its agents unless specified in the Hire Schedule;
2.2.4. Has satisfied itself as to the Equipment’s suitability, condition and fitness for its intended purpose;
2.2.5. Has appropriate knowledge and understanding of the operation of the Equipment;
2.2.6. Has all necessary or required licenses and permits to operate the Equipment;
2.2.7. Will use all reasonable care to look after the Equipment in accordance with any notice or instruction provided by the Company;
2.2.8. Will not tamper with, alter, modify or repair the Equipment without written permission from the Company;
2.2.9. Will immediately notify the Company of any defect, damage or need of repair to the Equipment;
2.2.10. Will take care and protect the Equipment from damage;
2.2.11. Must use and operate the Equipment in a lawful manner;
2.2.12. Must return any Equipment to the Company for any routine maintenance, in accordance with any schedule or Notice issued or received by the Hirer from the Company;
2.2.13. The Hirer further warrants:
• < >To provide full details and information of the Hirers requirements, experience and knowledge of any issue relevant to the Hire Agreement;
• To only use the Equipment for its intended purpose;
• safely and in accordance with all legal requirements (including OH&S requirements);
• in accordance with manufacturer’s guidelines;
• in accordance with the Company’s instructions;
• in accordance with all legal requirements;
• To only use the Equipment during the Hire Term;
• To return the Equipment clean and in good working order; • To return the Equipment by the end of the Hire Term;
• To co-operate and comply with any request or demand from the Company or a statutory authority;
• Subject to clause 6.1 pay for LDW or to take out and maintain full replacement, public liability and third party property damage insurance, covering the replacement value of the Equipment and the liability arising from the use and operation of the Equipment.
2.3. The Hirer shall assume all risk and liabilities for and in respect of the Equipment and for all injuries to or death of persons and any damage to property howsoever arising from the Hirer’s possession, use, storage or transport of the Equipment.
2.4. The Hirer releases, discharges and indemnifies the Company from all claim, damage, action, demands and cost incurred, claimed or payable by the Company relating to or arising out of any breach of warranty, agreement or obligation, by the Hirer its agent, representative or employee, associated with the Hire Agreement.
3. Term of Agreement
3.1. The Hire Term of the Hire Agreement shall commence on the Commencement Date and continue until ended by a Hire End Notice in writing provided by either party.
3.2. The Hire End Notice:
3.2.1. must specify a Hire End Date that is not earlier than one calendar month from the date of service of the Hire End Notice
3.2.2. cannot be served earlier than one calendar month prior to the expiry of the Initial Hire Term specified in the Hire Schedule.
4. Hire Fees and Payment
4.1. The Hire Fee shall be calculated from the Commencement Date and shall continue to accrue until the Hire End Date of the Hire Term.
4.2. The Fee and calculation method shall be as set out in the Hire Schedule.
4.3. Fees are invoiced and payable monthly in advance.
4.4. All Fees and Charges must be paid by the Payment Date.
4.5. All Fees and Charges are subject to GST which is payable in addition to the Fees and Charges on the Payment Date provided the Company provides the Hirer a compliant Tax Invoice.
5.1. In addition to the Fees the Hirer must pay Charges for:
5.1.1. Any costs incurred by the Company for any expenses related to the Hire Agreement or the Hire T&Cs;
5.1.2. Any consumables or materials supplied by the Company in connection with the Hire Agreement;
5.1.3. All cleaning and repairs if the Equipment is not returned clean and in working order;
5.1.4. All fines, penalties, charges or levies incurred by the Hirer or its agent relating to the use, operation or possession of the Equipment;
5.1.5. All government duties, fees, GST, taxes and charges imposed or relating to any Goods or Services provided pursuant to the Hire Agreement;
5.1.6. All costs of delivering and/or collecting the Equipment.
5.2. If the Hirer has booked or reserved Equipment (except MTO Equipment) for hire and fails to collect the Equipment or cancel such booking or reservation with less than forty-eight (48) hours notice, then the Company may charge a cancellation Charge of 50% of the Fee for the Initial Term.
5.3. The hire of MTO Equipment is not subject to cancellation.
5.4. The Hirer shall pay for the full cost of repair or replacement of all or parts of the Equipment that is damaged as a result of a breach of any warranties in the Hire T&Cs.
5.5. Any Charges, including default charges, incurred pursuant to the Hire T&Cs shall be payable by the due date on any Tax Invoice or demand on which they appear.
6. Loss Damage Waiver Assurance Plan (LDW):
6.1. As a precondition of hiring Equipment from the Company, the Hirer must produce evidence of insurance that covers loss or damage to the Equipment arising from or associated with the hire and the use by the Hirer for an amount not less than full new replacement cost of the Equipment, or the Hirer shall be required to purchase the LDW from the Company, which is NOT INSURANCE. If the Hirer purchases the LDW the Hirer shall pay to the Company as a charge in addition to the monthly Fee an LDW charge equal to 10% of the monthly Fee each month of the Hire Term.
6.2. If the Hirer purchases the LDW, and if the Equipment is used in compliance with this plan, then the Company agrees to waive, to the extent specified herein and in the Hire Agreement, its right to claim from the Hirer, damages, save for and conditional on the Hirer paying to the Company an excess of 15% of any claim up to and including the full new replacement cost of the Equipment within fourteen (14) days of receiving a request for payment of the excess.
6.3. Notwithstanding the Hirer's payment of the LDW charge, the Hirer will be liable to the Company for all loss of or damage to the Equipment and related expenses incurred by the Company resulting from breach of any of the Hirer Warranties, Obligations and Liabilities or any of the following circumstances:
6.3.1. The Hirer's failure to notify the Company within 24 hours of an incident that has resulted in loss or damage to the Equipment.
6.3.2. The Hirer’s failure to pay all invoices including the LDW within the Company’s payment terms;
6.3.3. The Hirer’s failure to pay the excess within the agreed time.
7. Refundable Deposit
7.1. A deposit consisting of three months Fees (including GST) is payable on or before the Hire Schedule is signed.
7.2. The deposit is refundable at the end of the Hire Term and may not be used in lieu of payment of the Fees or any other Charges.
8. Default and Breach
8.1. The Hirer shall be in default of the Hire Agreement if the Hirer fails to:
8.1.1. Pay any Fee and Charges by the Payment Date;
8.1.2. Comply with any warranty, obligation or agreement specified in the Hire T&Cs or the Hire Agreement;
8.1.3. Abide and comply with a lawful request or demand from the Company or a statutory authority at any time during the term of the hire;
8.1.4. Return the Equipment by the end of the Hire Term.
8.2. In the event of a default by the Hirer the Company shall be entitled to immediately terminate the Hire Agreement and to charge the Hirer interest on all amounts not paid by the Hirer within the Hire Term for payment at a rate of 1.5% per calendar month calculated from the Payment Date and accruing monthly therefrom until the date of payment.
8.3. If the Hirer defaults in payment of any invoice when due and payable, the Hirer shall indemnify the Company from and against all expenses, costs and disbursements incurred by the Company in pursuing the debt including all reasonably charged legal costs on a “solicitor and own client” basis and the fees charged to the Company by any mercantile agency.
8.4. In the event the Hire Agreement is terminated prior to the end of the Initial Hire Term, an early termination charge equal to the Fee for the remaining Initial Hire Term shall be due and payable.
9. Ownership and PPSA
9.1. Ownership of the Equipment shall at all times remain with the Company and the Hire Agreement only provides the Hirer a right of use of the Equipment and possession as a Bailee in accordance with the terms of the Hire Agreement.
9.2. The Hirer shall at no time be entitled to sell, assign, sublet, charge, mortgage or create any form of Security Interest over or in the Equipment.
10. Personal Property Securities
10.1. In the T&Cs words in italic shall have the meaning and definitions set out in the PPS Act.
10.2. The Hirer charges all its interest in any Real Property, Goods or Chattels with the payment of the Fees and Charges incurred pursuant to the Hire Agreement.
10.3. The Hirer acknowledges and agrees that the Hire Agreement constitutes a PPS Lease and creates a Security Interest in the Equipment in favour of the Company pursuant to the PPS Act.
10.4. The Hirer consents to the Company registering and maintaining a Security Interest registration on the PPSR, in relation to the Company’s Security Interest in the Equipment, the Proceeds arising from the Hire Agreement, the terms of the Hire T&Cs or any other dealing with the Equipment.
10.5. The Hirer warrant and agree to sign and provide all assistance, information and documents necessary for the Company to maintain a perfectedPMSI in the Equipment.
10.6. The Hirer waives its right to receive a copy of any financing statement, financing change statement or verification statement that is or may be registered, issued or received at any time.
10.7. The Hirer hereby waives its rights under the following sections of the PPS Act; section 95 (removal of Accession), section 123 (right to seize collateral); section 125 (obligation to dispose of or retain collateral); section 126 (apparent possession); section 128 (secured party may dispose of collateral); section 130 (notice of disposal) to the extent that it requires the secured party to give notice to the grantor; section 132(3)(d) (contents of statement of account after disposal); section 132(4) (statement of account if no disposal); section 134(1) (retention of collateral); section 135 (notice of retention); section 142 (redemption of collateral); and section 143 (reinstatement of security agreement).
11. Exclusions and Limitation of Liability
11.1. In entering into a Hire Agreement with the Company the Hirer warrants and agrees that:
11.1.1. They have not relied on any warranty, representation or calculation made by the Company or any of its employees or agents which has not been expressly included in the Hire T&Cs or the Hire Agreement -;
11.1.2. All agreements shall be deemed to exclude any Exclusions set out in any Hire Agreement ;
11.1.3. They have read and consent to the Hire T&Cs.
11.2. They authorise the Company and its representatives to access any land, by any means, on which the Equipment is held or stored at all times to install, inspect, repair or remove the Equipment.
11.3. Except where expressly agreed in writing to the contrary, all terms, conditions, warranties, undertakings, inducements or representations, whether expressed, implied, statutory or otherwise, relating in any way to the Hire Agreement are excluded and without limiting the generality of the foregoing, the Company shall not be under any liability to the Hirer in respect of any loss or damage including consequential loss or damage however caused, which may be suffered or incurred or which may arise directly or indirectly in respect of the provision of hire services or omission on the part of the Company to comply with its obligations under the Hire Agreement.
11.4. Where any act, statute, code or legislative enactment (“Act”) implies any term, condition or warranty and the Act avoids or prohibits provisions in a contract excluding or modifying the application of, or liability under such term, condition or Act, the liability of the Company for any breach of any term, condition or warranty shall be limited, at the option of the Company to any one or more of the following:
11.4.1. if the breach relates to supply of goods:
22.214.171.124. the provision of a refund; or
126.96.36.199. replacement of the goods; or
188.8.131.52. repair of the goods;
184.108.40.206. the payment to the Hirer of the reasonable cost of having the goods repaired or replaced.
11.4.2. if the breach relates to services:
220.127.116.11. the provision of a refund; or
18.104.22.168. re-supply of the service; or
22.214.171.124. the payment to the Hirer of the reasonable cost of having the service re-supplied.
11.5. The Company shall not be liable to the Hirer for any loss, damage, delay or failure to perform as a result or arising from any act of God, disease, strike, lockouts, war, fire, IT malfunctions or any accident or incident of any nature what so ever beyond the reasonable control of the Company.
11.6. The provision in this section in no way limits or reduces the statutory guarantee pursuant to the Competition and Consumer Act or the Australian Consumer Law.
12. Waiver of terms of Hire Agreement
12.1. The failure or indulgences by the Company to exercise, or delay in exercising, any right, power or privilege available to it under the Hire Agreement will not operate as a waiver thereof or preclude any other or further exercise thereof or the exercise of any right or power and the Company shall be entitled to require strict compliance at all times.
13.1. TheHire Agreement is governed by and will be construed in accordance with the laws of the State of New South Wales, Australia.
13.2. The Parties agree to submit to the exclusive jurisdiction of the Courts of the State of NSW if the Local Court has jurisdiction the Parties consent to the exclusive jurisdiction of the Local Court closest to the Company’s place of business.
13.3. All HireAgreements shall be deemed to have been entered into at the Company’s place of business.
14. General provisions
14.1. The Hire Agreement and the Hire T&Cs shall continue to have full force and effect until the Equipment is returned and all the Hirer’s obligations have been complied with and payments made.
14.2. The Company may serve any notice or Court document on the Hirer by hand or by forwarding it by post to the address of the Hirer’s last known to the Company, or where a fax number or an email address has been supplied by the Hirer, by sending it to that number or address. Such notices shall be deemed to be given:
- where delivered by hand, on the day of delivery;
- where sent by post, two (2) business days after the day of posting; and
- where sent by facsimile or email on the day of dispatch, provided that a clear transmission report is obtained.
14.3. The Hire Agreement represents the entire agreement and no agreement or understanding varying or extending the terms of the Hire T&Cs shall be legally binding upon either Party unless in writing and signed by both Parties or allowed by the Hire T&Cs.
14.4. The Hirer shall not be entitled to set off against or deduct from the Fee or Charges any sums owed or claimed to be owed to the Hirer against the Company.
14.5. No agreement or understanding varying or extending the Hire Agreement shall be legally binding on either Party unless varied in writing and signed by both Parties or permitted by the Hire T&Cs.
14.6. If any term of the Hire Agreement or Hire T&Cs shall be invalid, void, illegal or unenforceable, they shall be severed from the agreement and the remaining provisions shall not be affected, prejudiced or impaired by such severance.