Our Terms & Conditions

Terms & Conditions

Terms and conditions | Mawson Constructions Shepparton Pty Ltd
1. Interpretation

1.1           In these Terms and Conditions:

1.1.1       “Agreement” means the Agreement between the Company and the Customer and is deemed to include these Terms and Conditions and the terms of the Credit Application and Guarantee (if any) made by the Customer.

1.1.2       “Associated Persons” in relation to the Customer means:

1.1.2.1   In relation to a Corporation, any related body corporate as that term is defined in s 50 of the Corporations Act 2001; a director of the Customer or shareholder holding more than 5% of the issued shares in the Customer or any related body corporate; the spouse or any blood or adoptive relative of any natural person mentioned in (ii); or any corporation, partnership, joint venture, trust, business or other entity in which any of the persons mentioned in (ii) or (iii) whether alone or together have a beneficial interest in an entitlement to 30% or more of the income or capital or voting rights or of which ay such person acts as director, secretary or manager; and

1.1.2.2   In relation to a natural person, the spouse or any blood or adoptive relative of that person or that person’s spouse.

1.1.3       “Company” means Mawson Constructions Shepparton Pty Ltd (ACN 073 114 226) as trustee for the Mawson Operations Unit Trust and its successors and assigns.

1.1.4       “Customer” means the person, entity or business entering into the Agreement with the Company and in the case of a company shall include its permitted successors, assigns and agents, and in the case of an individual shall include that individual’s administrators and executors.

1.1.5       “Dry Hire” means that the Equipment is leased without an operator.

1.1.6       “Equipment” means all plant and equipment, including tools, accessories, parts and machinery, of any type leased to the Customer. The Equipment shall be deemed to be owned by the Company whether owned by the Company or not.

1.1.7       “Goods” means the goods the Company supplies to the Customer as specified in the Order Form or otherwise under the terms of the Agreement between the Buyer and the Seller and as described on Order Forms, invoices, quotations, work authorisations or any other forms provided by the Company to the Customer as well as each or any replacement, altered or substitute parts and all appliances, parts, components, instruments, appurtenances, accessories and other equipment which may from time to time be incorporated or installed in or attached to the Goods and, except where the context otherwise requires, includes any part of such goods, but does not include intellectual property or services.

1.1.8       “GST” means any tax including any additional tax imposed on the supply of or payment for Goods, Equipment or Services which is imposed or assessed under the GST Law, which is excluded from the Price.

1.1.9       “GST Law” means the A New Tax System (Goods and Services Tax) Act 1999 (Cth), and all other related and ancillary legislation.

1.1.10    “Guarantor” means the person, persons or entity or entities who agree or agrees to be liable for the debts of the Customer on a principal debtor basis.

1.1.11    “Materials” means the Equipment, the Goods and any Services.

1.1.12    “Order Form” means any Order for Materials as made from time to time under this Agreement.

1.1.13    “PPSA” means the Personal Property Securities Act 2009.

1.1.14    “PPSR” means the Personal Property Securities Register.

1.1.15    “Price” means the amount payable by the Customer as agreed between the Company and the Customer for the Materials and any Services exclusive of any other sum payable by the Customer.

1.1.16    “Proceeds” has the same meaning as in the PPSA.

1.1.17    “Quotation” means that quotation (if any) provided by the Company to the Customer.

1.1.18    “Security Interest” has the same meaning as in the PPSA.

1.1.19    “Services” means services supplied by the Company to the Customer, whether under a Dry Hire or Wet Hire arrangement, and includes any advice or recommendations (and where the context so permits shall include any supply of Equipment).

1.1.20    “Wet Hire” means that the Equipment is leased with an operator or operators as selected by the Company and who may be employees of the Company.

2. General                               

2.1           The Materials and Services leased and/or supplied by the Company are leased and/or supplied on these Terms and Conditions. These are the only terms which are binding on the Company with the exception of those otherwise agreed in writing by the Company or which are imposed by a statute and which cannot be excluded.

2.2           Any direction by the Customer either verbal or written to procure Materials or Services from the Customer will be deemed as acceptance by the Customer of these Terms and Conditions, despite any provisions to the contrary by the Customer.

3. Acceptance of Terms and Conditions

3.1           Any instructions received by the Company from the Customer for the supply of Materials and/or the Customer’s acceptance of Materials supplied by the Company, including any Credit Application made by the Customer to the Company, shall constitute acceptance of the Terms and Conditions contained herein.

3.2           Where more than one Customer has entered into the Agreement, the Customer shall be jointly and severally liable for all payments of the Price.

3.3           On acceptance of these Terms and Conditions by the Customer the Terms and Conditions are irrevocable and can only be amended with the written consent of the Company.

3.4           The Customer undertakes to give the Company at least fourteen (14) days’ notice of any change in the Customer’s name, address and/or any other change in the Customer’s details.

4. Lease of Equipment and Sale of Goods

4.1           Under these Terms and Conditions, the Company leases to the Customer, and the Customer leases from the Company, the Equipment described in the Order Form.

4.2           If the lease of Equipment is a Wet Hire, then the following shall apply to the lease:

4.2.1       Although the Operator of the Equipment remains an employee or representative of the Company, he/she operates the equipment in accordance with the Customer’s instructions and the Company shall not be liable for any actions of the operator in following the Customer’s instructions; and

4.2.2       The Customer shall provide amenities and first aid services to the Company’s employees in compliance with the relevant Health & Safety legislation in operation in the State where the work is undertaken; and

4.2.3       The price shall be based on a working day of [eight (8) hours per day, 7:30am to 4:00pm, allowing a thirty (30) minutes lunch break]. If the Equipment is worked outside the above hours or on a weekend or public holiday, additional charges may be payable by the Customer in accordance with the Company’s current Price.

4.3           If the Customer requires an employee of the Company to undertake a recognised study course or training during the time set out in cl 4.2.3, meaning that the Equipment is made idle by the absence of the operator, the Customer will pay the hourly rate for the period concerned.

4.4           In connections with the Goods, while they remain the property of the Company, the Customer agrees with the Company that:

4.4.1       The Customer cannot claim any lien over the Goods; and

4.4.2       The Buyer will not create any absolute or defeasible interest in the Goods in relation to any third party except as may be authorised by the Company; and

4.5           The Company and the Customer agree that:

4.5.1       The property of the Company in the Goods remains with the Company until the Company has been paid in full for the Goods under all individual contracts for the supply of the Goods between the Company and the Customer;

4.5.2       Pending payment in full for the Goods, the Buyer must not allow any person to have or acquire any security interest in the Goods;

4.6           Despite cl 4.5, if the Customer supplies any of the Goods to any person before all moneys payable by the Customer have been paid to the Company (and have not been claimed or clawed-back by any person standing in the place of or representing the Company), the Customer agrees that:

4.6.1       it holds the proceeds of the Goods on trust for and as agent for the Company immediately when they are receivable or are received;

4.6.2       it must either pay the amount of the proceeds of re-supply to the Company immediately when they are received or pay those proceeds into an account with a bank or a financial institution or deposit-taking institution as trustee for the Company;

4.6.3       any accessory or item which accedes to any of the Goods by an act of the Customer or any person at the direction or request of the Customer becomes and remains the property of the Company until the Company is paid in accordance with cl 4.5.1 when the property in the Goods (including the accessory) passes to the Customer;

4.6.4       if the Customer fails to pay for the Goods within the period of credit (if any) extended by the Company to the Customer, the Company may enter any site occupied, used, owned, possessed or controlled by the Customer or any premises where the Goods are situated and may recover possession of the Goods and the Customer agrees that the Company has an irrevocable licence to do so.

4.7           The Customer agrees that until such time as ownership of the Goods shall pass from the Company to the Customer the Company may give notice in writing to the Customer to return the Goods or any of them to the Company. On such notice the rights of the Customer to obtain ownership or any other interest in the Goods shall cease.

4.8           The Company can issue proceedings to recover the Price of the Goods sold notwithstanding that ownership of the Goods may not have passed to the Customer.

5. Defects             

5.1           The Customer shall inspect the Equipment on delivery and in the presence of a representative of the Company and shall within twenty-four (24) hours notify the Company of any alleged defect, shortage in quantity, damage or failure to comply with the description or quote.

5.2           The Customer shall afford the Company an opportunity to inspect the Equipment within a reasonable time following delivery if the Customer believes the Equipment is defective in any way. If the Customer shall fail to comply with these provisions the Equipment shall be presumed to be free from any defect or damage.

5.3           For defective Equipment, which the Company has agreed in writing that the Customer is entitled to reject, the Company’s liability is limited to replacing the Equipment for the period of lease.

5.4           In the case of any services provided by the Company that were not performed under the instruction of the Customer, at the completion of all work and services undertaken by the Company the Customer shall inspect such work and shall certify in such form as the Company shall reasonably require that all work conforms to the requirements and specifications of the Agreement, at which point the Company shall be deemed to have fulfilled its obligations under the Agreement in full. If the Customer believes that any work does not conform to the requirements or specifications of the Agreement, it shall notify the Company within one month after the Termination Date, and after the passing of one month following the Termination Date the Customer shall be deemed to have accepted all such work.

6. Cancellation

6.1           The Company may cancel these Terms and Conditions or cancel delivery of Materials at any time before the Materials is delivered by giving written notice. On giving such notice the Company shall repay to the Customer any sums paid in respect of the Price. The Company shall not be liable for any loss or damage whatever arising from such cancellation.

6.2           In the event that the Customer cancels delivery of the Materials the Customer shall be liable for any loss incurred by the Company (including, but not limited to, any loss of profits) up to the time of cancellation.

6.3           Notwithstanding cl 6.2, a cancellation fee of 10% of the Price for the lease of the Equipment applies to all jobs cancelled with less than five business days’ notice from the Customer to the Company.

7. Customer’s Disclaimer

7.1           The Customer hereby disclaims any right to rescind or cancel the Agreement or to sue for damages or to claim restitution arising out of any misrepresentation made to the Customer by the Company and the Customer acknowledges that the Materials are supplied relying solely on the Customer’s skill and judgement.

8. Delivery

8.1           Delivery charges apply if the Materials are not picked up from and returned to the Company’s business premises. The costs of delivery are in addition to the Price.

8.2           At the Company’s sole discretion delivery of the Materials shall take place when:

8.2.1       The Customer takes possession of the Materials at the Company’s address; or

8.2.2       The Customer takes possession of the Materials at the Customer’s address.

8.3           The Customer shall make all arrangements necessary to take delivery of the Materials whenever they are tendered for delivery. In the event that the Customer is unable to take delivery of the Materials whenever they are tendered for delivery as arranged then the Company shall be entitled to charge a reasonable fee for redelivery.

8.4           Delivery of the Materials to a third party nominated by the Customer is deemed to be delivery to the Customer for the purposes of the Agreement.

8.5           The Customer shall be responsible for free access by the Company to the site on which the Materials are located. If there are any delays due to free access not being available then the Customer shall be responsible and shall reimburse the Company for all lost lease fees associated with the Materials being unavailable. The Customer shall also be responsible for all other expenses and costs incurred by the Company due to delays in access to the Materials.

8.6           The failure of the Company to deliver shall not entitle either party to treat the Agreement as repudiated.

8.7           The Company shall not be liable for any loss or damage whatsoever due to the failure by the Company to deliver the Materials (or any part thereof) promptly or at all.

9. Term

9.1           The term of the lease and its date of commencement are as set out in the Order Form.

9.2           Unless the Order Form provides otherwise, the rights and obligations of the parties to lease the Equipment under the Agreement begin on the Commencement Date and end on the Termination Date.

9.3           If the Customer continues to lease or remain in possession of Equipment without objection by the Company after the end of the term of the Agreement, the Agreement will be renewed on a month to month basis without the need for any written notice of any kind from the Company and the Customer will be subject to the same terms and condition unless otherwise agreed by the Company except that the Company may terminate the Agreement on demand.

10. Use

The Customer shall use the Equipment in a safe and competent manner and shall comply with and conform to all national, state, municipal and other laws, ordinances and regulations in any way relating to the possession, use or maintenance of the Equipment.

11. Price and Payment

11.1        The price for the Materials and the Services shall be paid in advance by equal consecutive monthly instalments the first on the date of commencement. Payment shall be paid to the Company at the address or to the credit of the account details of which are in the Order Form or at such other place or account as the Company may designate from time to time. If the parties agree that payment of the Price for any Goods sold is not to be in advance, then such payment is expressly subject to cl 4.5 and 4.6 of these Terms.

11.2        Interest on overdue invoices shall be charged in accordance with cl 30.1 of these Terms.

11.3        At the Company’s sole discretion a deposit may be required. The Customer shall pay to the Company the deposit (if any) prior to taking possession of the Materials. The deposit will be refunded to the Customer promptly following the Customer’s performance of all obligations of this lease.

11.4        At the Company’s sole discretion the Price shall be either:

11.4.1    as indicated on invoices provided by the Company to the Customer in respect of Materials supplied; or

11.4.2    (if the Company has a Price List) the Company’s current Price at the date of delivery of the Materials according to the Price List; or

11.4.3    (if the Company provides a Quotation to the Customer) the Company’s quoted price as set out in the quotation which shall be binding on the Company provided that the Customer shall accept in writing the Company’s quotation within thirty (30) days of the date of the quotation. The Company reserves the right to change the Price in the event of a variation to the Company’s quotation.

11.5        Payment will be made by cash, or by cheque, or by bank cheque, or by direct credit, or by any other method as agreed to between the Customer and the Company.

11.6        GST and other taxes and duties that may be applicable shall be added to the Price except when they are expressly included in the Price.

11.7        The Customer must notify the Company of any overpayment made by or adjustment, credit or refund due to the Customer within six (6) months from the date of the relevant invoice. The Company will not be obliged to provide a refund, adjustment, credit or refund for any relevant amount not notified to the Company by the Customer within the six (6) month period.

12. Credit

12.1        In the event of the Company granting credit facilities to the Customer then the following terms apply:

12.1.1    Time for payment for the lease and/or supply of the Materials shall be of the essence and will be stated on the invoice or any other forms. If no time is stated then payment shall be due thirty (30) days following the date of the invoice.

12.1.2    Should the Customer default in the payment of any monies due under the Agreement, then all monies due to the Company shall immediately become due and payable in accordance with cl 29.

12.1.3    The Company shall be entitled without notice to terminate any credit arrangement with the Customer in the event of the Customer defaulting in any of the Terms and Conditions herein contained.

12.1.4    The Company shall be entitled at any stage during the continuation of the Agreement to request such security or additional security as the Company shall in its discretion think fit and shall be entitled to withhold supply of any goods or credit arrangements until such security or additional security shall be obtained or for any other reason at the Company’s discretion.

13. Customer’s Responsibilities

13.1        The Customer uses the Equipment at its own risk and must satisfy itself at commencement of the period of Lease that the Equipment is suitable for its purposes.

13.2        The Customer shall:

13.2.1    pay the Company the Price free of all deductions notwithstanding any defect or breakdown of the Equipment.

13.2.2    maintain at its own expense the Equipment in good order and repair and at the expiration of the period of lease deliver the Equipment in like condition to the Company, and daily check and maintain grease, lubricant and coolant of the Equipment in strict accordance with the Company’s instructions.

13.2.3    be responsible for and indemnify the Company against all claims in respect of injury to persons, or damage to property, arising out of the use of the Equipment by whoever during the lease period howsoever arising.

13.2.4    use the Equipment in a skilful and proper manner and only for the purpose and within the capacity for which it was designed and strictly in accordance with that law and any manufacturer’s instruction whether supplied by the Company or posted on the Equipment.

13.2.5    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.

13.2.6    comply with all occupational health and safety laws relating to the Equipment and its operation.

13.2.7    not alter or make any additions to the Equipment including but without limitation altering, making any additions to, defacing or erasing any identifying mark, plate or number on or in the Equipment or in any other manner interfering with the Equipment.

13.2.8    not fix any of the Equipment in such a manner as to make it legally a fixture forming part of any freehold.

13.2.9    employ the Equipment solely in its own work and not permit the Equipment or any part thereof to be used by any other party for any other work, and not sell hire lease or otherwise part with possession of the Equipment or assign the benefit of the Agreement or remove the Equipment from the State.

13.2.10  Immediately stop use of the Materials and notify the Company immediately by telephone in the event of any mechanical breakdown or accident (including but not limited to, an accident resulting in injury to any person or damage to property or environment). The Customer is not absolved from the requirements to safeguard the Equipment by giving such notification.

13.3        Immediately on request by the Company the Customer will pay:

13.3.1    the new list price of any Equipment that is for whatever reason destroyed, written off or not returned to the Company; and/or

13.3.2    all costs incurred in cleaning the Equipment; and/or

13.3.3    all costs of repairing any damage caused by the ordinary use of the Equipment up to an amount equal to 10% of the new list price of the Equipment; and/or

13.3.4    the cost of repairing any damage to the Equipment caused by any negligent or malicious act of the Customer or the Customer’s agent; and/or

13.3.5    the cost of repairing any damage to the Equipment caused by vandalism, or (in the Company’s reasonable opinion) in any way whatsoever other than by the ordinary use of the Equipment by the Customer; and/or

13.3.6    the cost of consumables provided by the Company and used by the Customer.

13.4        Any person executing the Agreement on behalf of the Customer shall be deemed to have authority to bind the Customer and the Customer shall be estopped from denying such authority.

13.5        Time shall be of the essence of the Customer’s obligations pursuant to the Agreement and no waiver by the Company of any breach of the Agreement shall be a waiver of continuing or recurring breach.

14. Access

14.1        The Company will at all times have access to the Equipment leased to the Customer for the purposes of inspecting and testing the same PROVIDED that the Company shall not enter on any site on which the Customer is engaged and on which the Equipment is located without first notifying the Customer of his intention to do so.

15. Repairs

15.1        If the Equipment becomes inoperable during the lease as a result of ordinary wear and tear and not as a direct or indirect consequence of any act or omission of the Customer whether described in cl 13.2.2 or not, the Company shall be responsible for restoring the same to operational use and any associated expense.

15.2        The Customer shall not incur any expense on behalf of the Company, or represent to other parties that it has the Company’s authority to incur any such expense on behalf of the Company, without first obtaining the Company’s express consent.

15.3        If the Equipment becomes inoperable and the Company reasonably concludes that it is not practical to repair the Equipment, it may elect to terminate the lease. The costs of such repair shall be a relevant factor in determining if the repair is practical. In the event of any such termination, the Customer shall only be liable to pay any and all amount of the Price payable under the Agreement payable for the period of lease until the time of the termination and in accordance with the terms of the Agreement. Nothing in this clause 15.3 shall operate to reduce any liability of the Customer under cl 13.2.2 or any other part of the Agreement.

16. Loss and Damage

16.1        The Customer indemnifies the Company against and bears the entire risk of any loss (including lawful confiscation) or damage to or destruction of the Equipment from any and every cause whatsoever.

16.2        In the event of loss or damage of any kind whatsoever to the Equipment, the Customer shall, at the Company’s option:

16.2.1    Place the same in good repair, condition and working; or

16.2.2    Replace the same with like equipment in good repair, condition and working order; or

16.2.3    Pay to the Company the replacement cost of the Equipment.

16.3        In the event of the Equipment becoming bogged or otherwise inoperable during the period of lease, then the responsibility and expense of recovering the Equipment or restoring the same to operational use shall be solely borne by the Customer.

17. Return

17.1        On the expiration or earlier termination of this lease, the Customer shall return the Equipment at the Customer’s expense appropriately protected and insured to the Company in good repair, condition and working order, ordinary wear and tear resulting from proper use thereof excepted.

17.2        If the Equipment is not returned to the Company as and when required by this cl 17, the Company may retake possession of the Equipment and any Goods for which the Company has not received full payment. For that purpose, the Company and its employees and agents may, without notice, liability or legal process, enter on or into any premises where the Equipment and other Goods are located and may break open any gate, door or fastening and detach or dismantle the Equipment and Goods from any part of the premises to which the Equipment and Goods have been affixed.

18. Ownership

18.1        The Company retains full title to the Equipment and any Goods for which it has not received full payment notwithstanding:

18.1.1    the delivery of the Equipment and/or Goods to the Customer;

18.1.2    the possession and use of the Equipment and/or Goods by the Customer; and

18.1.3    any temporary attachment of the Equipment and/or Goods to any land or building to facilitate use of the Equipment and/or Goods

subject only to the right of the Customer as a mere bailee of the Equipment with a right only to use the Equipment in accordance with, and under, the Agreement.

18.2        The Customer does not have any right, option or obligation to purchase the Equipment and acknowledges that no representation to that effect, express or implied, written or oral, has been made by or on behalf of the Company to the Customer or any nominee of the Customer at any time.

18.3        The Customer is not authorised to pledge the Company’s credit for repairs to the Equipment or to create a lien over the Equipment in respect of any repairs.

19. Personal Property Securities Act

19.1        The Customer acknowledges and agrees that to the extent the Agreement (governed by these Terms and Conditions) creates a PPS Lease, as defined in the PPSA, the Company has a security interest in the Equipment for the purposes of the PPSA and to the extent applicable the PPSA applies.

19.2        The Customer acknowledges and agrees that to the extent the Agreement (governed by these Terms and Conditions) creates a security interest in the Goods, the Company’s security interest in the Goods is a Purchase Money Security Interest, as defined in the PPSA, and to the extent applicable the PPSA applies.

19.3        The Customer acknowledges that the Company may take all reasonable steps, including but not limited to registering any security interests which the Company has over the

Equipment or Goods on the Personal Property Securities Register established under s 147 of the PPSA in order to perfect the security interests and comply with the requirements of the PPSA. The Customer agrees without charge to provide all information and do all things reasonable to assist the Company in complying with the matters outlined in this cl 19.

19.4        The Customer and the Company agree that the security interest the Company has over the Equipment is a PPS Lease, as defined in the PPSA, which does not secure payment or performance of an obligation, and accordingly that chapter 4 of the PPSA does not apply to any such security interest.

19.5        The Customer acknowledges and agrees that these terms:

19.5.1    constitute a security agreement for the purposes of the PPSA; and

19.5.2    create a security interest in:

19.5.2.1 all Goods previously supplied by the Seller to the Buyer (if any); and

19.5.2.2 all Goods that will be supplied in the future by the Company to the Customer.

19.6        The Customer acknowledges that the Company’s security interest includes:

19.6.1    the Products and all proceeds of any kind; and

19.6.2    all registration and enforcement costs incurred by the Company.

19.7        The Customer consents to the Company effecting a registration on the PPSR (in any manner the Company determines) of any security interest arising under or in connection with these terms and the Company and the Customer agrees to provide all assistance reasonably required by the Company to facilitate this, including:

19.7.1    promptly signing any further documents and/or providing any further information (such information to be complete, accurate and up-to-date in all respects) which the Company may reasonably require to:

19.7.1.1 register a financing statement or a financing change statement in relation to a security interest on the PPSR;

19.7.1.2 register any other document required to be registered by the PPSA; or

19.7.1.3 correct a defect in a statement referred to in cl 19.7.1.1 or 19.7.1.2.

19.7.2    indemnifying, and on demand reimbursing, the Company for all expenses incurred in registering a financing statement or financing change statement on the PPSR or releasing any Goods charged thereby;

19.7.3    not registering a financing change statement in respect of a security interest without the prior written consent of the Company;

19.7.4    not registering, or permitting to be registered, a financing statement or a financing change statement in relation to the Goods in favour of a third party without the prior written consent of the Company; and

19.7.5    immediately advising the company of any material change in its business practices of selling the Goods which would result in a change in the nature of proceeds derived from such sales.

19.8        The Customer agrees that:

19.8.1    these terms and any other related document(s), including in particular any information of the kind mention in section 275(1) of the PPSA, are confidential; and

19.8.2    the contents of these terms and any other related document(s) will not be disclosed (except to the extent and for the purposes such disclosure is expressly permitted by these terms or required by law (other than under section 275(1) of the PPSA)).

19.9        Where a person is a controller in relation to the Goods, the parties agree that Part 4.3 of the PPSA will not apply to the enforcement of any security interest in the Goods by that controller.

19.10       If Chapter 4 of the PPSA does apply to the enforcement of a security interest arising under or in connection with these terms, the Customer agrees that sections 95, 96, 118, 121(4), 123(2), 125, 129(2),130, 132(3)(d), 132(4), 142 and 143 of the PPSA will not apply to the enforcement of that security interest.

19.11      The Company agrees to and hereby waives its right to receive any notice under the PPSA (including notice of a verification statement) unless the notice is required by the PPSA and cannot be excluded.

19.12      If any provisions of these terms are inconsistent with the PPSA, the PPSA shall prevail to the extent of that inconsistency.

20. Personal Property Securities Register

20.1        So far as is permitted by the PPSA, the Customer waives its right:

20.1.1    to receive a copy of any verification statement or financing change statement or a statement of account on sale of the Materials;

20.1.2    to receive any notice required under the PPSA, including a notice that the Company intends to sell the Materials or to retain the Materials on enforcement of any security interests granted to the Company;

20.1.3    to object to a proposal by the Company to retain the Materials in satisfaction of any obligation owed by the Customer to the Company;

20.1.4     Where any Materials becomes an accession as defined in the PPSA, to not have any goods damaged when the Company removes the accession, to receive notice of removal of the accession and to apply to the court for an order concerning the removal of the accession, under the PPSA.

20.2        The Customer must:

20.2.1    At the Company’s request, promptly execute any documents and do anything required to register the Company’s Security Interest(s) in the Materials under the PPSA;

20.2.2    Indemnify and on demand reimburse the Company for all expenses incurred in registering a financing statement or financing change statement on the Personal Property Securities Register;

20.2.3    Keep full and complete records of the Materials;

20.2.4    Not, without the prior written consent of the Company, sell, lease, dispose of, create a security interest in, mortgage or part with possession of the Materials or any interest in them (or purpose attempt to purport to do such a thing) or permit any lien over the Materials;

20.2.5    Not change its name, address or contact details without providing the Company with prior written notice; and

20.2.6    Not register a financing change statement or a change demand without the prior written consent of the Company.

20.3        The Agreement and these Terms and Conditions and any other related document(s), including in particular any information of the kind mentioned in s 275(1) of the PPSA, are confidential. The contents of these Terms and Conditions and any other related document(s) may not be disclosed (except to the extent and for the purposes such disclosure is expressly permitted by these terms or required by law (other than under s 275(1) of the PPSA)).

21. Security and Charge

21.1        Despite anything to the contrary contained herein or any other rights which the Company may have howsoever:

21.1.1    where the Customer and/or the Guarantor (if any) is the owner of land, realty or any other asset capable of being charged, both the Customer and/or the Guarantor agree to mortgage and/or charge all of their joint and/or several interests in the said land, realty or any other asset to the Company or the Company’s nominee to secure all amounts and other monetary obligations payable under the Terms and Conditions. The Customer and/or the Guarantor acknowledge and agree that the Company (or the Company’s nominee) shall be entitled to lodge where appropriate a caveat, which caveat shall be released once all payments and other monetary obligations payable hereunder have been met.

21.1.2    should the Company elect to proceed in any manner in accordance with this clause and/or its sub-clauses, the Customer and/or Guarantor shall indemnify the Company from and against all the Company’s costs and disbursements including legal costs on a solicitor and own client basis.

21.1.3    the Customer and/or the Guarantor (if any) agree to irrevocably nominate constitute and appoint the Company or the Company’s nominee as the Customer’s and/or Guarantor’s true and lawful attorney to perform all necessary acts to give effect to the provisions of this cl 21.1

22. Insurance

22.1        The Customer is aware and acknowledges that no insurance is effected by the Company for the benefit of the Customer.

22.2        If the Company so requires, the Customer shall arrange and continuously maintain and keep current in the name of the Customer and the Company:

22.2.1    all risk insurance against loss and damage to the Materials for their full replacement value and

22.2.2    third party personal injury and property damage insurance with limits approved by the Company.

22.3        The insurance shall be in such form and with such company or companies as shall be reasonably required by the Company. The Customer shall provide the Company with an original policy or certificate evidencing such insurance.

22.4        The Customer shall provide to the Company on demand a Certificate of Currency in relation to the insurance effected by the Customer during the continuation of the Agreement, which insurances shall note the Company’s interest in the policy as owner of the Materials.

23. Risk

23.1        The Company retains property in the Equipment nonetheless all risk for the Materials passes to the Customer on delivery.

23.2        The Customer accepts full responsibility for the safekeeping of the Materials and indemnifies the Company for all loss, theft or damage to the Materials 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 Customer.

23.3        The Customer accepts full responsibility for and shall keep the Company indemnified against all liability in respect of all actions, proceedings, claims, damages, costs and expenses in respect of any injury to persons or damage to property arising out of the use of the Materials during the term of the Agreement however arising and whether or not arising from any negligence, failure or omission of the Customer or any other persons.

24. Tax/GST

24.1        The words in this cl 24 have the same definitions as in the GST Law.

24.2        The Customer must pay to the Company and indemnify the Company against all Taxes. Where any amount for Taxes is specified in an invoice, the Customer must pay that amount. The obligation of the Customer to indemnify the Company for Taxes is paramount, however, and if the amount of Taxes actually payable at any time and for any reason exceeds the amount shown in an invoice, the Customer must pay to the Company, on receiving a notice in writing, the amount required to indemnify and keep the Company indemnified at all times against Taxes.

24.3        The Customer must:

24.3.1    pay to the Company an amount equal to any GST payable on any supply by the Company under or in connection with the Agreement, without deduction or set-off of any other amount; and

24.3.2    make that payment on the earlier of the due date for payment of that invoice and some other date notified by the Company to the Customer.

24.4        The Customer must indemnify the Company against all GST on the transaction or transactions contemplated by this document.

24.5        GST on Claims and Expenses:

24.5.1    If a payment to satisfy a claim or a right to claim under or in connection with this document (for example, for misleading or deceptive conduct or for misrepresentation or deceptive conduct or for misrepresentation or for a breach of any warranty of the Company or of the Customer or for indemnity or for reimbursement of any expense) gives rise to a liability on the part of the Company to pay GST, the Customer must pay, and indemnify the Company against, the amount of that GST.

24.5.2    If the Company has a claim under or in connection with the Agreement for a supply on which GST is paid or payable by the Company, the claim is for the cost of the supply plus all GST (except any GST for which the Company is entitled to a full input tax credit).

24.5.3    Without limiting the generality of cl 24.5.2, if the Company acquires a supply under or in connection with the Agreement, the Customer must pay to the Company, on receiving written notice, the amount of GST paid or payable on that supply, except where the Company is able to contain a full input tax credit.

24.5.4    If a party has a claim under or in connection with the Agreement the amount of which depends on actual or estimated revenue or which is for a loss of revenue, revenue must be calculated without including any amount received or receivable as reimbursement for GST (whether that amount is separate or included as part of a larger amount).

25. Exclusion of Conditions and Warranties

25.1        The Company disclaims all and any warranties, not required by law, whether express or implied including but not limited to warranties as to merchantability and fitness for a particular purpose.

25.2        Certain conditions and warranties may be implied into the Agreement by the Competition and Consumer Act 2010 (as amended) and State legislation and these Terms and Conditions are to be read subject to legislation, but no other conditions or warranties will be accepted as conditions of lease.

26. Company’s Liability

26.1        The liability of the Company, its officers, employees and agents for all loss or damage related to the supply of Materials, including any loss (including loss of profits), damage, injury or death (whether to persons or property) or breach of statutory duty, to the extent legally permitted, limited at the Company’s option, to the repair of the relevant Materials or supply of equivalent Materials or the repayment of the respective Price thereof.

26.2        The Customer releases and indemnifies the Company, its officers, employees and agents to the fullest extent permitted by law from all actions, claims and demands of every kind arising out of the use or condition of any Materials including any which may arise directly or indirectly out of any loss, damage to property or death of or injury to any person of whatever nature or kind.

27. Indemnity

27.1        The Customer hereby indemnifies and holds harmless the Company against any and all claims, actions, suits, proceedings, costs, expenses, damages and liabilities arising out of, connected with, or resulting from Customer’s use of the Materials.

28. Trustees

28.1        In the case of a Trustee Company as Customer, the Customer acknowledges that the Trustee shall be liable on the account and that in addition the assets of the trust shall be available to meet payment of the account.

29. Default

29.1        If the Customer fails to pay all or part of the Price or any other amount herein provided within fourteen (14) days after the same is due and payable, or if the Customer fails to observe or perform any other provision of this lease required to be observed, or performed by the Customer, then the Company shall have the right to exercise any one or more of the following remedies:

29.1.1    to declare the entire amount of the Price and any and all other amounts owing hereunder immediately due and payable without notice or demand to the Customer;

29.1.2    to sue for and recover all rents, and other payments, then accrued or thereafter accruing;

29.1.3    to take possession of the Materials, without demand or notice, wherever same may be located, without any court order or other process of law. The Customer hereby waives any and all damages occasioned by such taking of possession;

                 29.1.4    to terminate this lease; and/or

                 29.1.5    to pursue any other remedy at law or in equity.

29.2        Notwithstanding any repossession or any other action which the Company may take, the Customer shall be and remain liable for the full performance of all obligations on the part of the Customer to be performed under this lease. All of the Company’s remedies are cumulative, and may be exercised concurrently or separately.

29.3        If the Customer defaults in payment of any invoice when due, the Customer shall indemnify the Company from and against all costs and disbursements incurred by the Company in pursuing the debt including legal costs on a solicitor and own client basis and the Company’s collection agency costs.

30. Interest

30.1        Interest on overdue invoices shall accrue from the date when payment becomes due daily until the date of payment at a rate of 2.5% per calendar month and such interest shall compound monthly at such a rate after as well as before any judgement.

31. Insolvency

31.1        Neither this lease nor any interest herein is assignable or transferrable by the Customer or by operation of law. If any proceedings under the Bankruptcy Act, or in the event that the Customer is a company under the Corporations Act 2001, is commenced by or against the Customer, or if the Customer is adjudged insolvent, or if the Customer makes any assignment for the benefit of creditors, or if a writ of attachment or execution is levied on the equipment and is not released or satisfied within fourteen (14) days thereafter, or if a receiver is appointed in any proceeding or action to which the Customer is a party with authority to take possession or control of the equipment, the Company shall have and may exercise the option without notice to immediately terminate the lease and take possession of the equipment.

32. Termination

32.1        Without prejudice to any other remedies available to the Company and notwithstanding any period of lease specified the Company may terminate the Agreement at any time after giving the Customer one day’s notice of termination or without notice if the Customer shall commit any serious breach of the Agreement, regardless of whether such breach is of these Terms and Conditions or otherwise.

33. Events of Default

33.1        Each of these events or circumstances is an Event of Default:

33.1.1    (non-payment) if the Customer fails to pay any amount that is due and payable by it under the Agreement when it is due and such non-payment continues for fourteen (14) days after the due date for payment;

33.1.2    (damage) if the Customer allows the Equipment to be damaged or lost or the Equipment is damaged or lost while under the control of the Customer;

33.1.3    (other obligations) if the Customer fails to comply with any of its obligations under the Agreement (other than a failure referred to elsewhere in this clause) and:

33.1.3.1 the Company considers that the failure cannot be remedied; or

33.1.3.2 the Company considers that the failure can be remedied and the failure is not remedied within five (5) business days after the Company requires the Customer to remedy it;

33.1.4    (misrepresentation) if any representation, warranty or statement made or repeated by the Customer in or in connection with the Agreement is untrue or misleading (whether by omission or otherwise) in any material respect when so made or repeated;

33.1.5    (insolvency event) if an insolvency event occurs in respect of the Customer or any of its subsidiaries or Associated Persons;

33.1.6    (documentation) if the Customer fails to provide any documentation, including but not limited to a Certificate of Currency, to the Company as required by the Agreement within the applicable time;

33.1.7    (inability to perform) if the Customer ceases for any reason to be able lawfully to carry out all the transactions which the Agreement contemplates may be carried out by it; and

33.1.8    (provision void) if all or any material provision of the Agreement is or becomes void, voidable, illegal or unenforceable or of limited force (other than because of equitable principles or laws affecting creditors’ rights generally), or the Customer claims this to be the case.

33.2        If there is an Event of Default, the Company may terminate the Agreement immediately by written notice to the Customer. On such termination:

33.2.1    the Customer must, at its own expense, immediately return all Equipment which is on lease to the Customer;

33.2.2    the Equipment returned must be in good order and condition; and

33.2.3    if the Customer fails to return the Equipment, the Company may repossess the Equipment in addition to its other rights under these Terms and Conditions.

34. Force Majeure

34.1        If any obligation of the Company under the Agreement is affected by Force Majeure, the Company will promptly notify the Customer of the nature and extent of the circumstances of the Force Majeure. Notwithstanding any other provision of the Agreement, the Company will not be in breach or otherwise be liable for any delay in performance or the non-performance of its obligations under the Agreement to the extent that the delay or non-performance is due to any Force Majeure of which the Company has notified the Customer. The time for performance of that obligation by the Company will be extended to take into account the Force Majeure.

35. Possession following Termination

35.1        On termination the Company shall be entitled to take possession of the Equipment and for this purpose the Customer irrevocably appoints the Company its attorney and authorises the Company or its agent to enter on any land or premises owned by or under control of the Customer and recover the Equipment and will pay for and indemnifies the Company against any claims, losses, damages, costs and expenses arising out of the repossession of the Equipment.

36. Additional Documents

36.1        If the Company shall so require, the Customer shall execute and deliver to the Company such documents as the Company shall deem necessary or desirable for the purposes of protecting the interest of the Company in the equipment.

37. Assignment

37.1        The Customer shall not assign this lease without the prior written consent of the Company which may be given or withheld in the Company’s absolute discretion.

38. Notices

38.1        A communication required by the Agreement, by a party to another, must be in writing and may be given to them by being:

                 38.1.1    delivered personally; or

38.1.2    posted to their address specified in the Agreement, or as later notified by them, in which case it will be treated as having been received on the second business day after posting; or

38.1.3    faxed to the facsimile number of the party with acknowledgement of receipt received electronically by the sender, when it will be treated as received on the day of sending; or

38.1.4    Sent by email to their email address, when it will be treated as received on that day.

39. Costs

39.1        All expenses, costs, charges, fees or disbursements incurred in or reasonably incidental to:

39.1.1    recovering or attempting to recover any outstanding monies;

39.1.2    exercising or attempting to exercise any right, power, privilege, authority or remedy of the Company under the Agreement or any agreement entered into by the Company and the Customer pursuant to these Terms and Conditions; or

39.1.3    repossessing or attempting to repossess any property of the Company from the Customer under the Agreement,

are to the extent allowed by law payable by the Customer to the Company. On demand by the Company all such expenses, costs, charges, fees or disbursements must be paid by the Customer to the Company.

40. Privacy Act and Credit Reports

40.1        The Customer understand that s 18E(8)(c) of the Privacy Act 1988 allows the Company to give a credit reporting agency certain personal information about the Customer. The information which may be given to an agency is covered by s 18E(1) of the Act and includes: Particulars to identify the customer; the fact that the customer has applied for credit and the amount; the fact that the Company is a credit provider to the Customer; payments which become overdue more than sixty (60) days; advice that payments are no longer overdue; cheques of $100 or more drawn by the Customer which a Bank has dishonoured more than once; in specified circumstances, that in the opinion of the Company the Customer has committed a serious credit infringement; and/or that the credit provided to the Customer by the Company has been discharged.

40.2        To enable the Company to assess the Customer’s application for commercial or personal credit, the Customer authorises the Company as follows:

40.2.1    if asked to provide commercial credit, to obtain from a credit reporting agency a credit report containing personal credit information about the Customer. This is in accordance with s 18K(1)(b) of the Privacy Act.

40.2.2    if asked to provide personal credit, to use a credit report containing information about the Customer’s commercial activities or commercial creditworthiness from a business which provides information about the commercial creditworthiness of a person. This is in accordance with s 18L(4) of the Privacy Act.

40.3        In accordance with s 18N(1)(b) of the Privacy Act, the Customer authorises the Company to give to and receive from credit providers named in a credit report issued by a credit reporting agency, information in the Company’s possession or the other credit provider’s possession about the Customer’s creditworthiness, credit standing, credit history and credit capacity. The Customer understands the information may be used to:

40.3.1    assess an application for credit by the Customer.

40.3.2    assist the Company avoiding default on the Customer’s credit obligations.

40.3.3    notify other credit providers of a default by the Customer.

40.3.4    assess the Customer’s creditworthiness.

41. Provisions Severable

41.1        If any of these Terms or Conditions is or becomes for any reason wholly or partly invalid that term or condition shall to the extent of the invalidity be severed without prejudice to the continuing force and validity of the remaining conditions.

41.2        To the extent that any of the provisions herein contained are prohibited or invalid under the laws of the State of Victoria or the Competition and Consumer Act 2010 including the Australian Consumer Law and subsequent amendments thereto, such provisions shall to the extent they are so prohibited or invalid be severed and removed from the Agreement without invalidating the remaining provisions hereof and the Agreement shall be construed as intended to operate in all respects to the maximum extent to which it can validly apply.

42. Change of Customer Details

The Customer shall no later than fourteen (14) days prior to any proposed changes of ownership, change in Registered Particulars, or alteration or addition to the shareholding or directorship, notify the Company of the proposed change and the Customer shall notify the Company of any change, alteration or addition to the Customer’s internal structure and shall provide full details of the proposed change, alteration or addition to the Company and the Customer shall be liable for any Equipment supplied by the Company after such change alteration or addition unless the Company shall have acknowledged by writing acceptance of the intended change, alteration or addition.

43. Amendment

43.1        The Company and the Customer acknowledge that the Company may by written notice to the Customer amend these Terms and Conditions from time to time.

44. Jurisdiction

44.1        These Terms and Conditions are to be governed and construed by the laws of the State of Victoria. Any proceeding in respect of any matter or thing with respect to the Customer must be instituted or carried on in the State of Victoria.