Terms & Conditions

1. Definitions

1.1. “Supplier” means Waste Initiatives Pty Ltd ATF P & B Smith Family Trust T/A Waste Initiatives Pty Ltd, its successors and assigns or any person acting on behalf of and with the authority of Waste Initiatives Pty Ltd  ATF P & B Smith Family Trust T/A Waste Initiatives Pty Ltd.

1.2. “Client” means the person/s or any person acting on behalf of and with the authority of the Client requesting the Supplier to provide the Services as specified in any proposal, quotation, order, invoice or other documentation, and:

(a) if there is more than one Client, is a reference to each Client jointly and severally; and

(b) if the Client is a part of a Trust, shall be bound in their capacity as a trustee; and

(c) includes the Client’s executors, administrators, successors and permitted assigns.

1.3. “Equipment” means all Equipment (including any accessories) supplied on hire (or purchase) to the Client by the Supplier, at the Client’s request from time to time, and:

(a) includes any erection, dismantling and transport of the Equipment (“Services”), any parts, accessories and/or consumables supplied by the Supplier to the Client, either separately or deposited incidentally by the Supplier in the course of it conducting, or supplying to the Client, the Equipment or supplying any labour; and

(b) where the context so permits the terms ‘Equipment’ or ‘Services’ shall be interchangeable for the other.

1.4. “Minimum Hire Period” means the Minimum Hire Period as described on the invoices, quotation, authority to hire, or any other forms as provided by the Supplier to the Client.

1.5. “Price” means the Price payable (plus any GST where applicable) for the Equipment as agreed between the Supplier and the Client in accordance with clause 6

1.6. “GST” means Goods and Services Tax (GST) as defined within the “A New Tax System (Goods and Services Tax) Act 1999” (Cth).

1.7. “Site” means the address nominated by the Client at which the Services are to be undertaken (or where the Equipment is to be located) by the Supplier.

2. Acceptance

2.1. The Client is taken to have exclusively accepted and is immediately bound, jointly and severally, by these terms and conditions if the Client places an order for or accepts delivery of the Equipment.

2.2. These terms and conditions may only be amended with the consent of both parties in writing, and shall prevail to the extent of any inconsistency with any other document or contract between the Client and the Supplier.

2.3. The Client acknowledges that the supply of Equipment on credit shall not take effect until the Client has completed a credit application with the Supplier and it has been approved with a credit limit established for the account.

2.4. In the event that the supply of Equipment request exceeds the Client’s credit limit and/or the account exceeds the payment terms, the Supplier reserves the right to refuse delivery. NO credit will be extended to overdue accounts.

2.5. None of the Equipment shall be sublet or cross-hired by the Client. The Client shall not assign or transfer its interest in the contract, or part with possession of all, or any portion, of the Equipment, without the prior written consent of the Supplier, which may be arbitrarily withheld.

2.6. The Supplier reserves the right to refuse to enter the Site to undertake the Services in the event that the Supplier believes the site to be unsafe. In this event, the Client agrees that it is their responsibility to ensure the Site is made safe before the Supplier will enter the site, the Supplier shall not be liable for any delays caused, loss, damages, or costs however resulting from an unsafe Site.

2.7. Before accepting Equipment for trial, the Client agrees to accurately complete and sign the Credit Card Authorisation Form, the contents of which shall form part of this agreement, thereby, consenting to the Supplier, that in the event that the Client becomes in default of payment for any reason, the failure to return Equipment on trial or return of damaged Equipment on trial, then the Supplier reserves the right to automatically debit the Client’s credit card.

2.8. Where the Supplier has provided Equipment (including, but not limited to accessories or other components) for trial, and subsequently the items are not returned within the thirty (30) day trial period or the Equipment is returned damaged, the Supplier shall reserve the right to charge the Client’s credit card as per clause 7.

2.9. The Client acknowledges and agrees that in the event that the Client requests the Supplier to make a Call-Out to carry out any Services, then the Supplier reserves the right to charge a minimum Call-out fee based on the Supplier’s hourly labour rate, (penalty rates may apply for weekends and/or Public Holidays, unless otherwise agreed between the Supplier and the Client), plus travel and parts.

2.10. Electronic signatures shall be deemed to be accepted by either party providing that the parties have complied with Section 9 of the Electronic Transactions Act 2000 or any other applicable provisions of that Act or any Regulations referred to in that Act.

2.11. These terms and conditions may be meant to be read in conjunction with the Supplier’s Hire Form or Service Maintenance Agreement, and:

(a) where the context so permits, the terms ‘Equipment’ or ‘Services’ shall include any supply of Equipment, as defined therein; and

(b) if there are any inconsistencies between the two documents then the terms and conditions contained therein shall prevail.

3. Credit Card Information

The Supplier will:

(a) keep the Client’s personal details, including credit card details for only as long as is deemed necessary by the Supplier;

(b) not disclose the Client’s credit card details to any third party;

(c) not unnecessarily disclose any of the Client’s personal information, except is accordance with the Privacy Act (clause 20) or where required by law.

3.2. The Client expressly agrees that, if pursuant to this agreement, there are:

(a) any unpaid charges;

(b) other amounts due and outstanding by the Client;

(c) any Equipment (or any part of them) supplied on trial that are lost or damaged;

(d) any other additional charges are due from the Client which were not known at the time of the return of the Equipment,

3.3. The Supplier is entitled to immediately charge the Client’s nominated credit card for these amounts, and is irrevocably authorised to complete any documentation and take any action to recover from the credit card issuer any and all amounts which may be due by the Client pursuant to the terms of this agreement.

4. Errors and Omissions

4.1. The Client acknowledges and accepts that the Supplier shall, without prejudice, accept no liability in respect of any alleged or actual error(s) and/or omission(s):

(a) resulting from an inadvertent mistake made by the Supplier in the formation and/or administration of this contract; and/or

(b) contained in/omitted from any literature (hard copy and/or electronic) supplied by the Supplier in respect of the Services.

4.2. In the event such an error and/or omission occurs in accordance with clause 4.1, and is not attributable to the negligence and/or wilful misconduct of the Supplier; the Client shall not be entitled to treat this contract as repudiated nor render it invalid.

5. Change in Control

5.1. The Client shall give the Supplier not less than fourteen (14) days prior written notice of any proposed change of ownership of the Client and/or any other change in the Client’s details (including but not limited to, changes in the Client’s name, address and contact phone or fax number/s, change of trustees or business practice). The Client shall be liable for any loss incurred by the Supplier as a result of the Client’s failure to comply with this clause.

6. Brochures and Promotional Material

6.1. The Client acknowledges that description and illustrations in the Supplier’s brochures, promotional material and advertising are not to be taken as an exact representation of the articles described, and are intended to present a general idea of the Equipment. All drawings, brochures and electronic information supplied are informative only. the Supplier accepts no responsibility for the accuracy of illustrations, designs, samples, weights, dimensions, capacities and other particulars of the Equipment, and will not be responsible for the cost of additional work or consequential loss or damage caused by any defect or otherwise in Brochures and Promotional Material. All samples, illustrations, designs and specifications supplied to the Client remain the property of the Supplier and may not be copied, reproduced or used in part or whole without the prior written consent from the Supplier.

7. Price and Payment

At the Supplier’s sole discretion the Price shall:

(a) be either:

(i) as indicated on invoices provided by the Supplier to the Client in respect of Equipment supplied; or

(ii) the Supplier’s quoted Price (subject to clause 2) which shall be binding upon the Supplier provided that the Client shall accept in writing the Supplier’s quotation within thirty (30) days; and

(b) not include, unless specified otherwise in writing:

(i) the mobilisation, demobilisation and commissioning of the Equipment; and

(ii) service and maintenance of, and damage to, the Equipment, which is the responsibility of the Client; or

(c) the Supplier’s quoted price (subject to clause 2) which will be valid for the period stated in the quotation or otherwise for a period of thirty (30) days. The quoted Price is subject to change after a Site visit.

7.2. The Supplier reserves the right to change the Price:

(a) if a variation to the Equipment or Services which are to be supplied is requested and prior to commencement of additional Services, the Client must provide an accompany order number; and/or

(b) upon one (1) months’ written notice to the Client;

(c) in the event of increases to the Supplier in the cost of labour or materials, or fluctuations in currency exchange rates, which are beyond the Supplier’s control.

7.3. Variations will be charged for on the basis of the Supplier’s quotation, and will be detailed in writing, and shown as variations on the Supplier’s invoice. The Client shall be required to respond to any variation submitted by the Supplier within ten (10) working days. Failure to do so will entitle the Supplier to add the cost of the variation to the Price.  Payment for all variations must be made in full at the time of their completion.

7.4. At the Supplier’s sole discretion, a deposit may be required.

7.5. Time for payment for the Equipment being of the essence, the Price will be payable by the Client on the date/s determined by the Supplier, which may be:

(a) by way of instalments/progress payments in accordance with the Supplier’s payment schedule;

(b) thirty (30) days following the end of the month in which a statement is posted to the Client’s address or address for notices;

(c) the date specified on any invoice or other form as being the date for payment; or

(d) failing any notice to the contrary, the date which is seven (7) days following the date of any invoice given to the Client by the Supplier.

7.6. Payment may be made by cash, bank cheque, electronic/on-line banking, credit card (a surcharge may apply per transaction), or by any other method as agreed to between the Client and the Supplier.

7.7. The Client shall not be entitled to set off against, or deduct from the Price, any sums owed or claimed to be owed to the Client by the Supplier nor to withhold payment of any invoice because part of that invoice is in dispute.

7.8. Unless otherwise stated the Price does not include GST. In addition to the Price the Client must pay to the Supplier an amount equal to any GST the Supplier must pay for any supply by the Supplier under this or any other contract for the sale of the Equipment. The Client must pay GST, without deduction or set off of any other amounts, at the same time and on the same basis as the Client pays the Price. In addition, the Client must pay any other taxes and duties that may be applicable in addition to the Price except where they are expressly included in the Price.

7.9. The Client acknowledges and agrees that the Client’s obligations to the Supplier for the supply of the Equipment shall not cease until:

(a) the Client has paid the Supplier all amounts owing for the hire of the Equipment; and

(b) the Client has met all other obligations due by the Client to the Supplier in respect of all contracts between the Supplier and the Client.

7.10. Receipt by the Supplier of any form of payment other than cash shall not be deemed to be payment until that form of payment has been honoured, cleared or recognised, and until then the Supplier’s rights in relation to the Equipment, and this contract, shall continue.

8. Other Charges

8.1. In addition to the Price, the Client will be required to pay to the Supplier, immediately upon request:

(a) for any consumables, fuel or trade materials supplied to the Client by the Supplier;

(b) where applicable, the costs of delivering, mobilisation, demobilisation, commissioning and/or collecting the Equipment (as per clause 9.1);

(c) for repairs and maintenance carried out by the Supplier at the Client’s request;

(d) all costs incurred in cleaning and/or repairing the Equipment where the Equipment is not returned in good working order (including damage caused by undue wear and tear, such as damaged due to rough loading or handling, neglect by the Client of maintenance and servicing, dust related electric failure;

(e) any lost hire fees the Supplier would have otherwise been entitled to for the Equipment, under this, or any other hire contract;

(f) any insurance excess payable in relation to a claim made by either the Client or the Supplier in relation to any damage caused by, or to, the hire Equipment whilst the same is hired by the Client and irrespective of whether charged by the Client’s insurers or the Supplier’s; and

(g) any consequential damage or loss, howsoever arising, suffered by the Supplier as a result of the Client’s breach of any of these terms and conditions;

(h) any relocation of the Equipment shall attract an additional charge, however, subject firstly to the Supplier’s approval.

9. Provision of the Services

9.1. Delivery (“Delivery”) of the Equipment is taken to occur at the time that:

(a) the Client or the Client’s nominated carrier takes possession of the Equipment at the Supplier’s address; or

(b) the Supplier (or the Supplier’s nominated carrier) delivers the Equipment to the Client’s nominated address even if the Client is not present at the address.

9.2. At the Supplier’s sole discretion, the cost of delivery is either included in the Price or is in addition to the Price.

9.3. The Supplier may deliver the Equipment in separate instalments. Each separate instalment shall be invoiced and paid in accordance with the provisions in these terms and conditions.

9.4. Any time specified by the Supplier for delivery of the Equipment is an estimate only. The Client must take delivery by receipt or collection of the Equipment whenever they are tendered for delivery. The Supplier will not be liable for any loss or damage incurred by the Client as a result of delivery being late. In the event that the Client is unable to take delivery of the Equipment as arranged then the Supplier shall be entitled to charge a reasonable fee for redelivery and/or storage.

9.5. The Supplier shall not be responsible for delay or non-completion of the job for which the Equipment is purchased/hired resulting from an act beyond the reasonable control of the Supplier, including but not limited to, industrial action, strikes, lockouts, epidemics, fire, war, government actions, commotion, riot, floods or inclement weather.

10. Risk

10.1. Risk of damage to or loss of the Equipment passes to the Client on Delivery and the Client must insure the Equipment on or before Delivery.

10.2. If any of the Equipment are damaged or destroyed following delivery but prior to ownership passing to the Client, the Supplier is entitled to receive all insurance proceeds payable for the Equipment. The production of these terms and conditions by the Supplier is sufficient evidence of the Supplier’s rights to receive the insurance proceeds without the need for any person dealing with the Supplier to make further enquiries.

10.3. If the Client requests the Supplier to leave Equipment outside the Supplier’s premises for collection or to deliver the Equipment to an unattended location, then such Equipment shall be left at the Client’s sole risk.

11. Access

11.1. The Client shall ensure that the Supplier has clear and free access to the site at all times to enable them to deliver the Goods. The Supplier shall not be liable for any loss or damage to the site (including, without limitation, damage to pathways, driveways and concreted or paved or grassed areas) unless due to the negligence of the Supplier.

11.2. It is the responsibility of the Client to ensure that access is suitable to accept the weight of laden trucks. The Client agrees to indemnify the Supplier against all costs incurred by Supplier in recovering such vehicles in the event they become bogged or otherwise immovable.

12. Use, Operation and Maintenance of the Equipment

12.1. Hire charges shall commence from the time the Equipment has started to be used legally and shall continue until the return of the Equipment thereto, and/or until the expiry of the Minimum Hire Period, whichever last occurs.

12.2. The date upon which the Client advises of termination shall in all cases be treated as a full day’s hire.

12.3. In the event of Equipment breakdown provided the Client notifies the Supplier immediately, hiring charges will not be payable during the time the Equipment are not working, unless the condition is due to negligence or misuse on the part of or attributable to the Client.

12.4. Stand down:

(a) will only be applicable where agreed to in writing between the parties prior to the commencement of the Hire Term. Otherwise, any request by the Client to the Supplier will be, in the first instance, orally and confirmed in writing for consideration by the Supplier. Adjustment to Hire Charges will be made on the merit of such request, and only in accordance with this clause;

(b) is usually charged to the Client at fifty percent (50%) of the daily Hire Charges, unless otherwise agreed in writing between the parties prior to the stand down.

12.5. The Client shall:

(a) maintain the Equipment as is required by the Supplier;

(b) notify the Supplier immediately by telephone of the full circumstances of any mechanical breakdown, accident or damage due by rain, wind cyclone etc and may at the Supplier’s discretion be subject to an inspection, an additional charge will apply. The Client is not absolved from the requirements to safeguard the Equipment by giving such notification;

(c) satisfy itself at commencement that the Equipment are suitable for its purposes;

(d) operate the Equipment safely, strictly in accordance with the law, only for its intended use, and in accordance with any manufacturer’s instruction whether supplied by the Supplier or posted on the Equipment;

(e) ensure that all persons operating or erecting the Equipment are suitably instructed in its safe and proper use and where necessary hold a current Certificate of Competency and/or are fully licensed to operate the Equipment and shall provide evidence of the same to the Supplier upon request;

(f) comply with all occupational health and safety laws relating to the Equipment and their operation;

(g) not move the Equipment once placed in position by the Client, except with the express approval of the Supplier. Any relocation of the Equipment shall attract an additional charge, and all risk for the performance of such shall rest with the Client (as per clause 8);

(h) employ the Equipment solely in its own work and not permit the Equipment of any part thereof to be used by any other party for any other work;

(i) on termination of the hire, deliver the Equipment complete with all parts and accessories, clean and in good order as delivered, fair wear and tear accepted, to the Supplier;

(j) keep the Equipment in their own possession and control and shall not assign the benefit of the hire contract nor be entitled to lien over the Equipment;

(k) will not remove the Equipment from the state of New South Wales without the prior written approval of the Supplier;

(l) not alter or make any additions to the Equipment including but without limitation altering, make any additions to, defacing or erasing any identifying mark, plate or number on or in the Equipment or in any other manner interfere with the Equipment;

(m) employ the Equipment solely in its own work and shall not permit the Equipment or any part thereof to be used by any other party for any other work;

(n) not exceed the recommended or legal load and capacity limits of the Equipment;

(o) not use or carry any illegal, prohibited or dangerous substance in, or on, the Equipment;

(p) not fix any of the Equipment in such a manner as to make them legally a fixture forming part of any freehold;

12.6. Immediately on request by the Supplier the Client will pay:

(a) the new list price of any Equipment that are for whatever reason destroyed, written off or not returned to the Supplier;

(b) all costs incurred in cleaning the Equipment;

(c) all costs of repairing any damage caused by the ordinary use of the Equipment up to an amount equal to ten percent (10%) of the new list price of the Equipment;

(d) the cost of repairing any damage to the Equipment caused by the negligence of the Client or the Client’s agent;

(e) the cost of repairing any damage to the Equipment caused by vandalism, or (in the Supplier’s reasonable opinion) in any way whatsoever other than by the ordinary use of the Equipment by the Client;

(f) any lost hire fees the Supplier would have otherwise been entitled to for the Equipment, under this, or any other hire contract.

12.7. The Supplier may terminate the hire contract, without being liable for damages for doing so, if:

(a) the Client default in the punctual payment of any monies due;

(b) the Client fails to observe or perform any condition in this, or any other uncompleted hire contract between the Supplier and the Client;

(c) the Client is declared bankrupt, or an official manager is appointed to any of the Client’s assets;

(d) the Client applies to take benefit of any law for the relief of bankrupt or insolvent debtors, compounds with their creditors, or makes an assignment of their remuneration for their benefit.

12.8. In the circumstances of clause 12.7 the Supplier shall be entitled to enter upon the Client’s Site and remove the Equipment from the Site, without prejudice to any arrears in hire charges or other sums due to the breach if the Client’s obligations or for damages that may arise from any event, and from then the Supplier shall be freed and discharged from all actions, suits, claims, demands by or obligations to the Client under or by virtue where this contract is for the purpose of hire.

13. Title to the Equipment

13.1. Where this is a hire contract:

(a) the Equipment is and will at all times remain the absolute property of the Supplier, however the Client accepts full responsibility for:

(i) the safekeeping of the Equipment and indemnifies the Supplier for all loss, theft, or damage to the Equipment howsoever caused and without limiting the generality of the foregoing whether or not such loss, theft, or damage is attributable to any negligence, failure, or omission of the Client; and

(ii) shall keep the Supplier indemnified against all liability in respect of all actions, proceedings, claims, damages, costs and expenses in respect of any injury to persons, damage to property, or otherwise arising out of the use of the Equipment during the hire period and whether or not arising from any negligence, failure or omission of the Client or any other persons.

13.2. Furthermore, the Client will insure, or self-insure, the Supplier’s interest in the Equipment against physical loss or damage including, but not limited to, the perils of accident, fire, theft and burglary and all other usual risks and will affect adequate Public Liability Insurance covering any loss, damage or injury to property arising out of the Equipment. Further the Client will not use the Equipment nor permit it to be used in such a manner as would permit an insurer to decline any claim.

(a) If the Client fails to return the Equipment to the Supplier then the Supplier or the Supplier’s agent may (as the invitee of the Client) enter upon and into land and premises owned, occupied or used by the Client, or any premises where the Equipment is situated and take possession of the Equipment, without being responsible for any damage thereby caused.

(b) The Client is not authorised to pledge the Supplier’s credit for repairs to the Equipment or to create a lien over the Equipment in respect of any repairs.

13.3. Where is this a contract for the purchase of the Equipment (including accessories):

(a) the Supplier and the Client agree that ownership of the Equipment shall not pass until:

(i) the Client has paid the Supplier all amounts owing to the Supplier; and

(ii) the Client has met all of its other obligations to the Supplier.

(b) Receipt by the Supplier of any form of payment other than cash shall not be deemed to be payment until that form of payment has been honoured, cleared or recognised.

(c) It is further agreed that:

(i) until ownership of the Equipment passes to the Client in accordance with clause 3(a) that the Client is only a bailee of the Equipment and must return the Equipment to the Supplier on request.

(ii) the Client holds the benefit of the Client’s insurance of the Equipment on trust for the Supplier and must pay to the Supplier the proceeds of any insurance in the event of the Equipment being lost, damaged or destroyed.

(iii) the Client must not sell, dispose, or otherwise part with possession of the Equipment other than in the ordinary course of business and for market value. If the Client sells, disposes or parts with possession of the Equipment then the Client must hold the proceeds of any such act on trust for the Supplier and must pay or deliver the proceeds to the Supplier on demand.

(iv) the Client should not convert or process the Equipment or intermix them with other Equipment but if the Client does so then the Client holds the resulting product on trust for the benefit of the Supplier and must sell, dispose of or return the resulting product to the Supplier as it so directs.

(v) the Client irrevocably authorises the Supplier to enter any premises where the Supplier believes the Equipment are kept and recover possession of the Equipment.

(vi) the Supplier may recover possession of any Equipment in transit whether or not delivery has occurred.

(vii) the Client shall not charge or grant an encumbrance over the Equipment nor grant nor otherwise give away any interest in the Equipment while they remain the property of the Supplier.

(viii) the Supplier may commence proceedings to recover the Price of the Equipment sold notwithstanding that ownership of the Equipment has not passed to the Client.

14. Personal Property Securities Act 2009 (“PPSA”)

14.1. In this clause financing statement, financing change statement, security agreement, and security interest has the meaning given to it by the PPS

14.2. Upon assenting to these terms and conditions in writing the Client acknowledges and agrees that these terms and conditions constitute a security agreement for the purposes of the PPSA and creates a security interest in all Equipment and/or collateral (account) – being a monetary obligation of the Client to the Supplier for Services – that have previously been supplied and that will be supplied in the future by the Supplier to the Client.

14.3. The Client undertakes to:

(a) promptly sign any further documents and/or provide any further information (such information to be complete, accurate and up-to-date in all respects) which the Supplier may reasonably require to;

(i) register a financing statement or financing change statement in relation to a security interest on the Personal Property Securities Register;

(ii) register any other document required to be registered by the PPSA; or

(iii) correct a defect in a statement referred to in clause 3(a)(i) or 14.3(a)(ii);

(d) indemnify, and upon demand reimburse, the Supplier for all expenses incurred in registering a financing statement or financing change statement on the Personal Property Securities Register established by the PPSA or releasing any Equipment charged thereby;

(c) not register a financing change statement in respect of a security interest without the prior written consent of the Supplier;

(d) not register, or permit to be registered, a financing statement or a financing change statement in relation to the Equipment and/or collateral (account) in favour of a third party without the prior written consent of the Supplier;

(e) immediately advise the Supplier of any material change in its business practices of selling the Equipment which would result in a change in the nature of proceeds derived from such sales.

14.4. The Supplier and the Client agree that sections 96, 115 and 125 of the PPSA do not apply to the security agreement created by these terms and conditions.

14.5. The Client waives their rights to receive notices under sections 95, 118, 121(4), 130, 132(3)(d) and 132(4) of the PPSA.

14.6. The Client waives their rights as a grantor and/or a debtor under sections 142 and 143 of the PPSA.

14.7. Unless otherwise agreed to in writing by the Supplier, the Client waives their right to receive a verification statement in accordance with section 157 of the PPSA.

14.8. The Client must unconditionally ratify any actions taken by the Supplier under clauses 3 to 14.5.

14.9. Subject to any express provisions to the contrary (including those contained in this clause 14) nothing in these terms and conditions is intended to have the effect of contracting out of any of the provisions of the PPSA.

14.10. Only to the extent that the hire of the Equipment exceeds a two (2) year hire period shall clause 14 apply as a security agreement in the form of a PPS Lease in respect of Section 20 of the PPSA, in all other matters clause 14 will apply generally for the purposes of the PPSA. The Client agrees that the Supplier may register a security interest as a Purchase Money Security Interest (“PMSI”) for the purposes of the PPSA in favour of the Supplier over the Equipment supplied.

15. Security and Charge

15.1. In consideration of the Supplier agreeing to supply the Equipment, the Client charges all of its rights, title and interest (whether joint or several) in any land, realty or other assets capable of being charged, owned by the Client either now or in the future, to secure the performance by the Client of its obligations under these terms and conditions (including, but not limited to, the payment of any money).

15.2. The Client indemnifies the Supplier from and against all the Supplier’s costs and disbursements including legal costs on a solicitor and own client basis incurred in exercising the Supplier’s rights under this clause.

15.3. The Client irrevocably appoints the Supplier and each director of the Supplier as the Client’s true and lawful attorney/s to perform all necessary acts to give effect to the provisions of this clause 15 including, but not limited to, signing any document on the Client’s behalf.

16. Defects, Warranties and Returns, Competition and Consumer Act 2010 (CCA)

16.1. The Client must inspect the Equipment on delivery and must within seven (7) days of delivery notify the Supplier in writing of any evident defect/damage, shortage in quantity, or failure to comply with the description or quote. The Client must notify any other alleged defect in the Equipment as soon as reasonably possible after any such defect becomes evident. Upon such notification the Client must allow the Supplier to inspect the Equipment.

16.2. Under applicable State, Territory and Commonwealth Law (including, without limitation the CCA), certain statutory implied guarantees and warranties (including, without limitation the statutory guarantees under the CCA) may be implied into these terms and conditions (Non-Excluded Guarantees).

16.3. The Supplier acknowledges that nothing in these terms and conditions purports to modify or exclude the Non-Excluded Guarantees.

16.4. Except as expressly set out in these terms and conditions or in respect of the Non-Excluded Guarantees, the Supplier makes no warranties or other representations under these terms and conditions including but not limited to the quality or suitability of the Equipment. The Supplier’s liability in respect of these warranties is limited to the fullest extent permitted by law.

16.5. If the Client is a consumer within the meaning of the CCA, the Supplier’s liability is limited to the extent permitted by section 64A of Schedule 2.

16.6. If the Supplier is required to replace the Equipment under this clause or the CCA, but is unable to do so, the Supplier may refund any money the Client has paid for the Equipment.

16.7. If the Client is not a consumer within the meaning of the CCA, the Supplier’s liability for any defect or damage in the Equipment is:

(a) limited to the value of any express warranty or warranty card provided to the Client by the Supplier at the Supplier’s sole discretion;

(b) limited to any warranty to which the Supplier is entitled, if the Supplier did not manufacture the Equipment;

(c) otherwise negated absolutely.

16.8. Subject to this clause 16, returns will only be accepted provided that:

(a) the Client has complied with the provisions of clause 1; and

(b) the Supplier has agreed that the Equipment are defective; and

(c) the Equipment are returned within a reasonable time at the Client’s cost (if that cost is not significant); and

(d) the Equipment are returned in as close a condition to that in which they were delivered as is possible.

16.9. Notwithstanding clauses 1 to 16.8 but subject to the CCA, the Supplier shall not be liable for any defect or damage which may be caused or partly caused by or arise as a result of:

(a) the Client failing to properly maintain or store any Equipment;

(b) the Client using the Equipment for any purpose other than that for which they were designed;

(c) the Client continuing the use of any Equipment after any defect became apparent or should have become apparent to a reasonably prudent operator or user;

(d) the Client failing to follow any instructions or guidelines provided by the Supplier;

(e) fair wear and tear, any accident, or act of God.

16.10. In the case of second hand Equipment, unless the Client is a consumer under the CCA, the Client acknowledges that it has had full opportunity to inspect the second hand Equipment prior to delivery and accepts them with all faults and that to the extent permitted by law no warranty is given by the Supplier as to the quality or suitability for any purpose and any implied warranty, statutory or otherwise, is expressly excluded. The Client acknowledges and agrees that the Supplier has agreed to provide the Client with the second hand Equipment and calculated the Price of the second hand Equipment in reliance of this clause 10.

16.11. The Supplier may in its absolute discretion accept non-defective Equipment for return in which case the Supplier may require the Client to pay handling fees of up to twenty percent (20%) of the value of the returned Equipment plus any freight costs.

16.12. Notwithstanding anything contained in this clause if the Supplier is required by a law to accept a return then the Supplier will only accept a return on the conditions imposed by that law.

16.13. Subject to clause 1, customised, or non-stocklist items or Incidental Items made or ordered to the Client’s specifications are not acceptable for credit or return.

17. Intellectual Property

17.1. Where the Supplier has designed, drawn or developed Equipment for the Client, then the copyright in any designs and drawings and documents shall remain the property of the Supplier. Under no circumstances may such designs, drawings and documents be used without the express written approval of the Supplier.

17.2. The Client warrants that all designs, specifications or instructions given to the Supplier will not cause the Supplier to infringe any patent, registered design or trademark in the execution of the Client’s order and the Client agrees to indemnify the Supplier against any action taken by a third party against the Supplier in respect of any such infringement.

17.3. The Client agrees that the Supplier may (at no cost) use for the purposes of marketing or entry into any competition, any documents, designs, drawings or Equipment which the Supplier has created for the Client.

18. Default and Consequences of Default

18.1. Interest on overdue invoices shall accrue daily from the date when payment becomes due, until the date of payment, at a rate of two and a half percent (2.5%) per calendar month (and at the Supplier’s sole discretion such interest shall compound monthly at such a rate) after as well as before any judgment.

18.2. If the Client owes the Supplier any money the Client shall indemnify the Supplier from and against all costs and disbursements incurred by the Supplier in recovering the debt (including but not limited to internal administration fees, legal costs on a solicitor and own client basis, the Supplier’s contract default fee, and bank dishonour fees).

18.3. Further to any other rights or remedies the Supplier may have under this contract, if a Client has made payment to the Supplier, and the transaction is subsequently reversed, the Client shall be liable for the amount of the reversed transaction, in addition to any further costs incurred by the Supplier under this clause 18 where it can be proven that such reversal is found to be illegal, fraudulent or in contravention to the Client’s obligations under this contract.

18.4. Without prejudice to the Supplier’s other remedies at law the Supplier shall be entitled to cancel all or any part of any order of the Client which remains unfulfilled and all amounts owing to the Supplier shall, whether or not due for payment, become immediately payable if:

(a) any money payable to the Supplier becomes overdue, or in the Supplier’s opinion the Client will be unable to make a payment when it falls due;

(b) the Client has exceeded any applicable credit limit provided by the Supplier;

(c) the Client becomes insolvent, convenes a meeting with its creditors or proposes or enters into an arrangement with creditors, or makes an assignment for the benefit of its creditors; or

(d) a receiver, manager, liquidator (provisional or otherwise) or similar person is appointed in respect of the Client or any asset of the Client.

19. Cancellation

19.1. Without prejudice to any other remedies the Supplier may have, if at any time the Client is in breach of any obligation (including those relating to payment) under these terms and conditions the Supplier may suspend or terminate the supply of Equipment to the Client. The Supplier will not be liable to the Client for any loss or damage the Client suffers because the Supplier has exercised its rights under this clause.

19.2. The Supplier may cancel any contract to which these terms and conditions apply or cancel delivery of Equipment at any time before the Equipment are delivered by giving written notice to the Client. On giving such notice the Supplier shall repay to the Client any money paid by the Client for the Equipment. The Supplier shall not be liable for any loss or damage whatsoever arising from such cancellation.

19.3. In the event that the Client cancels delivery of Equipment the Client shall be liable for any and all loss incurred (whether direct or indirect) by the Supplier as a direct result of the cancellation (including, but not limited to, any loss of profits).

19.4. Cancellation of orders for Equipment made to the Client’s specifications, or for non-stocklist items, will definitely not be accepted once production has commenced, or an order has been placed.

20. Privacy Act 1988

20.1. The Client agrees for the Supplier to obtain from a credit reporting body (CRB) a credit report containing personal credit information (e.g. name, address, D.O.B, occupation, previous credit applications, credit history) about the Client in relation to credit provided by the Supplier.

20.2. The Client agrees that the Supplier may exchange information about the Client with those credit providers and with related body corporates for the following purposes:

(a) to assess an application by the Client; and/or

(b) to notify other credit providers of a default by the Client; and/or

(c) to exchange information with other credit providers as to the status of this credit account, where the Client is in default with other credit providers; and/or

(d) to assess the creditworthiness of the Client including the Client’s repayment history in the preceding two (2) years.

20.3. The Client consents to the Supplier being given a consumer credit report to collect overdue payment on commercial credit.

20.4. The Client agrees that personal credit information provided may be used and retained by the Supplier for the following purposes (and for other agreed purposes or required by):

(a) the provision of Equipment; and/or

(b) analysing, verifying and/or checking the Client’s credit, payment and/or status in relation to the provision of Equipment; and/or

(c) processing of any payment instructions, direct debit facilities and/or credit facilities requested by the Client; and/or

(d) enabling the collection of amounts outstanding in relation to the Equipment.

20.5. The Supplier may give information about the Client to a CRB for the following purposes:

(a) to obtain a consumer credit report;

(b) allow the CRB to create or maintain a credit information file about the Client including credit history.

20.6. The information given to the CRB may include:

(a) personal information as outlined in 1 above;

(b) name of the credit provider and that the Supplier is a current credit provider to the Client;

(c) whether the credit provider is a licensee;

(d) type of consumer credit;

(e) details concerning the Client’s application for credit or commercial credit (e.g. date of commencement/termination of the credit account and the amount requested);

(f) advice of consumer credit defaults, overdue accounts, loan repayments or outstanding monies which are overdue by more than sixty (60) days and for which written notice for request of payment has been made and debt recovery action commenced or alternatively that the Client no longer has any overdue accounts and the Supplier has been paid or otherwise discharged and all details surrounding that discharge (e.g. dates of payments);

(g) information that, in the opinion of the Supplier, the Client has committed a serious credit infringement;

(h) advice that the amount of the Client’s overdue payment is equal to or more than one hundred and fifty dollars ($150).

20.7. The Client shall have the right to request (by e-mail) from the Supplier:

(a) a copy of the information about the Client retained by the Supplier and the right to request that the Supplier correct any incorrect information; and

(b) that the Supplier does not disclose any personal information about the Client for the purpose of direct marketing.

20.8. The Supplier will destroy personal information upon the Client’s request (by e-mail) or if it is no longer required unless it is required in order to fulfil the obligations of this contract or is required to be maintained and/or stored in accordance with the law.

20.9. The Client can make a privacy complaint by contacting the Supplier via e-mail. The Supplier will respond to that complaint within seven (7) days of receipt and will take all reasonable steps to make a decision as to the complaint within thirty (30) days of receipt of the complaint. In the event that the Client is not satisfied with the resolution provided, the Client can make a complaint to the Information Commissioner at oaic.gov.au

21. Unpaid Seller’s Rights

21.1. Where the Client has left any item with the Supplier for repair, modification, exchange or for the Supplier to perform any other service in relation to the item and the Supplier has not received or been tendered the whole of any monies owing to it by the Client, the Supplier shall have, until all monies owing to the Supplier are paid:

(a) a lien on the item; and

(b) the right to retain or sell the item, such sale to be undertaken in accordance with any legislation applicable to the sale or disposal of uncollected Equipment.

21.2. The lien of the Supplier shall continue despite the commencement of proceedings, or judgment for any monies owing to the Supplier having been obtained against the Client.

22. Service of Notices

22.1. Any written notice given under this contract shall be deemed to have been given and received:

(a) by handing the notice to the other party, in person;

(b) by leaving it at the address of the other party as stated in this contract;

(c) by sending it by registered post to the address of the other party as stated in this contract;

(d) if sent by facsimile transmission to the fax number of the other party as stated in this contract (if any), on receipt of confirmation of the transmission;

(e) if sent by email to the other party’s last known email address.

22.2. Any notice that is posted shall be deemed to have been served, unless the contrary is shown, at the time when by the ordinary course of post, the notice would have been delivered.

23. Trusts

23.1. If the Client at any time upon or subsequent to entering in to the contract is acting in the capacity of trustee of any trust (“Trust”) then whether or not the Supplier may have notice of the Trust, the Client covenants with the Supplier as follows:

(a) the contract extends to all rights of indemnity which the Client now or subsequently may have against the Trust and the trust fund;

(b) the Client has full and complete power and authority under the Trust to enter into the contract and the provisions of the Trust do not purport to exclude or take away the right of indemnity of the Client against the Trust or the trust fund. The Client will not release the right of indemnity or commit any breach of trust or be a party to any other action which might prejudice that right of indemnity.

(c) the Client will not without consent in writing of the Supplier (the Supplier will not unreasonably withhold consent), cause, permit, or suffer to happen any of the following events;

(i) the removal, replacement or retirement of the Client as trustee of the Trust;

(ii) any alteration to or variation of the terms of the Trust;

(iii) any advancement or distribution of capital of the Trust; or

(iv) any resettlement of the trust property.

24. Force Majeure

24.1. Subject to clause 2, neither party shall be responsible for any delays in Delivery or collection due to causes beyond their control (including, but not limited to, acts of God, war, terrorism, mobilisation, civil commotion, riots, embargoes, orders or regulations of governments of any relevant jurisdiction, fires, floods, strikes, lockouts or other labour difficulties, shortages of, or inability to obtain shopping space, or land transportation).

24.2. Nothing in clause 1 will limit or exclude the Client’s responsibility and liability under this contract for Equipment that is lost, stolen or damaged beyond fair wear and tear during the Hire Term, or had broken down, or become unsafe to use as a result of the Client’s conduct or negligence.

25. Building and Construction Industry Security of Payments Act 1999

25.1. At the Supplier’s sole discretion, if there are any disputes or claims for unpaid Equipment and/or Services then the provisions of the Building and Construction Industry Security of Payments Act 1999 may apply.

25.2. Nothing in this agreement is intended to have the effect of contracting out of any applicable provisions of the Building and Construction Industry Security of Payments Act 1999 of New South Wales, except to the extent permitted by the Act where applicable.

26. General

26.1. The failure by either party to enforce any provision of these terms and conditions shall not be treated as a waiver of that provision, nor shall it affect that party’s right to subsequently enforce that provision. If any provision of these terms and conditions shall be invalid, void, illegal or unenforceable the validity, existence, legality and enforceability of the remaining provisions shall not be affected, prejudiced or impaired.

26.2. These terms and conditions and any contract to which they apply shall be governed by the laws of New South Wales in which the Supplier has its principal place of business, and are subject to the jurisdiction of the Newcastle Courts in that state.

26.3. Subject to clause 16, the Supplier shall be under no liability whatsoever to the Client for any indirect and/or consequential loss and/or expense (including loss of profit) suffered by the Client arising out of a breach by the Supplier of these terms and conditions (alternatively the Supplier’s liability shall be limited to damages which under no circumstances shall exceed the Price of the Equipment).

26.4. The Supplier may licence and/or assign all or any part of its rights and/or obligations under this contract without the Client’s consent.

26.5. The Client cannot licence or assign without the written approval of the Supplier.

26.6. The Supplier may elect to subcontract out any part of the Services but shall not be relieved from any liability or obligation under this contract by so doing. Furthermore, the Client agrees and understands that they have no authority to give any instruction to any of the Supplier’s sub-contractors without the authority of the Supplier.

26.7. The Client agrees that the Supplier may amend these terms and conditions by notifying the Client in writing. These changes shall be deemed to take effect from the date on which the Client accepts such changes, or otherwise at such time as the Client makes a further request for the Supplier to provide Equipment to the Client.

26.8. Both parties warrant that they have the power to enter into this contract and have obtained all necessary authorisations to allow them to do so, they are not insolvent and that this contract creates binding and valid legal obligations on them.