Independent Roller Door Services Pty Ltd - Terms & Conditions of Trade

Definitions

• “Contractor” means Independent Roller Door Services Pty Ltd, its successors and assigns or any person acting on behalf of and with the authority of Independent Roller Door Services Pty Ltd.

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

• if there is more than one Customer, is a reference to each Customer jointly and severally; and

• if the Customer is a part of a Trust, shall be bound in their capacity as a trustee; and

• includes the Customer’s executors, administrators, successors and permitted assigns.

• “Goods” means all Goods or Services supplied by the Contractor to the Customer at the Customer’s request from time to time (where the context so permits the terms ‘Goods’ or ‘Services’ shall be interchangeable for the other).

• “Equipment” means all Equipment including any accessories supplied on hire by the Contractor to the Customer (and where the context so permits shall include any supply of Services). The Equipment shall be as described on the invoices, quotation, authority to hire, or any other work authorisation form provided by the Contractor to the Customer.

• “Price” means the Price payable (plus any GST where applicable) for the Goods and/or Equipment hire as agreed between the Contractor and the Customer in accordance with clause 5 below.

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

Acceptance

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

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 Customer and the Contractor.

Electronic signatures shall be deemed to be accepted by either party providing that the parties have complied with Section 7 of the Electronic Transactions Act 2000 or any other applicable provisions of that Act or any Regulations referred to in that Act.

Errors and Omissions

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

• resulting from an inadvertent mistake made by the Contractor in the formation and/or administration of this contract; and/or

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

In the event such an error and/or omission occurs in accordance with clause 3.1, and is not attributable to the negligence and/or wilful misconduct of the Contractor; the Customer shall not be entitled to treat this contract as repudiated nor render it invalid. 

Change in Control

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

Price and Payment

At the Contractor’s sole discretion the Price shall be either:

• as indicated on any invoice provided by the Contractor to the Customer; or

• the Contractor’s quoted price (subject to clause 5.3) which will be valid for the period stated in the quotation or otherwise for a period of fourteen (14) days.

Unless stated otherwise the Price does not include:

• the supply of custom taper or jam/draft seals (which stops drafts and gaps in brick work, etc.) to compensate for unlevelled floors, or crack or holes in floors;

• the supply of fixing to hang doors, motors, parts and accessories – diagrams are available from the Contractor upon request;

• preparation work (such as openings, which must be plumb and level) in order to accommodate the Goods;

• building and council permits, and town planning consents and applications (etc.), which shall be the responsibility of the Customer;

• scaffolding and/or scissor-lift equipment that may be required for the supply of Services by the Contractor, and any cost of hiring such equipment shall be charged additionally to the Customer;

• all electrical wiring and connection to power units/points (including the setting of limit switches), which shall be the responsibility of the Customer;

• additional site visits (including where the Contractor is requested to install guides, lock-up, set limits, etc.), which shall be charged additionally at the Contractor’s standard labour rates.

The Contractor reserves the right to change the Price if a variation to the Contractor’s quotation is requested (including the supply of any items specified in clause 5.2). Any variation from the plan of scheduled works or specifications (including, but not limited to, any variation as a result of additional works required due to unforeseen circumstances such as prerequisite work by any third party not being completed, delays in accessing the site as per clause 8, or as a result of any increase to the Contractor in the cost of materials and labour) will be charged for on the basis of the Contractor’s quotation and will be shown as variations on the invoice. The Customer shall be required to respond to any variation submitted by the Contractor within ten (10) working days. Failure to do so will entitle the Contractor 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.

At the Contractor’s sole discretion a deposit may be required. 

Time for payment for the Goods/Equipment being of the essence, the Price will be payable by the Customer on the date/s determined by the Contractor, which may be:

• on delivery of the Goods/Equipment; 

• before delivery of the Goods/Equipment; 

• the date specified on any invoice or other form as being the date for payment; or

• failing any notice to the contrary, the date which is fourteen (14) days following the date of any invoice given to the Customer by the Contractor. 

Payment may be made by cash, cheque, bank cheque, electronic/on-line banking, or by any other method as agreed to between the Customer and the Contractor.

No allowance has been made in the Price for the deduction of retentions. In the event that retentions are made, the Contractor reserves the right to treat all retentions as placing the Customer’s account into default.

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

Unless otherwise stated the Price does not include GST. In addition to the Price, the Customer must pay to the Contractor an amount equal to any GST the Contractor must pay for any supply by the Contractor under this or any other contract for the sale of the Goods/hire of the Equipment. The Customer must pay GST, without deduction or set off of any other amounts, at the same time and on the same basis as the Customer pays the Price. In addition, the Customer 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.

Delivery of Goods/Equipment

Delivery (“Delivery”) of the Goods/Equipment is taken to occur at the time that the Contractor (or the Contractor’s nominated carrier) delivers the Goods/Equipment to the Customer’s nominated address even if the Customer is not present at the address.

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

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

Any time specified by the Contractor for delivery of the Goods/Equipment is an estimate only and the Contractor will not be liable for any loss or damage incurred by the Customer as a result of delivery being late. However both parties agree that they shall make every endeavour to enable the Goods/Equipment to be delivered at the time and place as was arranged between both parties. In the event that the Contractor is unable to supply the Goods/Equipment as agreed solely due to any action or inaction of the Customer, then the Contractor shall be entitled to charge a reasonable fee for redelivery and/or storage.

Risk

Risk of damage to or loss of the Goods passes to the Customer on Delivery and the Customer must insure the Goods on or before Delivery.

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

If the Customer requests the Contractor to leave Goods outside the Contractor’s premises for collection or to deliver the Goods to an unattended location then such Goods shall be left at the Customer’s sole risk.

Where the Customer is to supply the Contractor with any design specifications (including but not limited to CAD drawings) the Customer shall be responsible for providing accurate data.  The Contractor shall not be liable whatsoever for any errors in the Goods that are caused by incorrect or inaccurate data being supplied by the Customer.

The Customer accepts full responsibility for, and shall keep the Contractor 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 incorrect, inadequate and/or faulty fixing by the Customer or any third party, and whether or not arising from any negligence, failure or omission of the Customer or any other persons.

Whilst the Contractor will take all due care, the Contractor will not accept responsibility for any damage to existing plastered, painted, marble, granite, glass, ceramic, and/or mirrored surfaces during installation of the Goods (including where the drilling of holes is required to suit removable mullions, locking devices or single guides, etc.), or the servicing thereof.

The Contractor takes no responsibility for wind damage to any Goods and the Customer acknowledges that ratings therefor are available from the Contractor upon request.

Access

The Customer shall ensure that the Contractor has clear and free access to the work site (and in particular the garage) at all times to enable them to undertake the works, and that such access allows for the unhindered movement of equipment and plant around the site. The Contractor shall be entitled to suspend and/or reschedule the Services in the event of any delay in accessing the site due to impeded access or unsafe work conditions and any such delay (and/or additional work or special equipment that may be required in order to supply the Services) shall be subject to clause 5.4. Furthermore, the Contractor 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 Contractor.

Service Locations

Prior to the Contractor commencing any work the Customer must advise the Contractor of the precise location of all services on the site and clearly mark the same. The mains & services the Customer must identify include, but are not limited to, electrical services, gas services, sewer services, pumping services, sewer connections, sewer sludge mains, water mains, irrigation pipes, telephone cables, fibre optic cables, oil pumping mains, and any other services that may be on site.

Whilst the Contractor will take all care to avoid damage to any underground services the Customer agrees to indemnify the Contractor in respect of all and any liability claims, loss, damage, costs and fines as a result of damage to services not precisely located and notified as per clause 9.1.

Title to Goods

The Contractor and the Customer agree that ownership of the Goods shall not pass until:

• the Customer has paid the Contractor all amounts owing to the Contractor; and

• the Customer has met all of its other obligations to the Contractor.

Receipt by the Contractor 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.

It is further agreed that until ownership of the Goods passes to the Customer in accordance with clause 10.1:

• the Customer is only a bailee of the Goods and must return the Goods to the Contractor on request;

• the Customer holds the benefit of the Customer’s insurance of the Goods on trust for the Contractor and must pay to the Contractor the proceeds of any insurance in the event of the Goods being lost, damaged or destroyed;

• the Customer must not sell, dispose, or otherwise part with possession of the Goods other than in the ordinary course of business and for market value. If the Customer sells, disposes or parts with possession of the Goods then the Customer must hold the proceeds of any such act on trust for the Contractor and must pay or deliver the proceeds to the Contractor on demand;

• the Customer should not convert or process the Goods or intermix them with other goods but if the Customer does so then the Customer holds the resulting product on trust for the benefit of the Contractor and must sell, dispose of or return the resulting product to the Contractor as it so directs;

• the Customer irrevocably authorises the Contractor to enter any premises where the Contractor believes the Goods are kept and recover possession of the Goods;

• the Contractor may recover possession of any Goods in transit whether or not delivery has occurred;

• the Customer shall not charge or grant an encumbrance over the Goods nor grant nor otherwise give away any interest in the Goods while they remain the property of the Contractor;

• the Contractor may commence proceedings to recover the Price of the Goods sold notwithstanding that ownership of the Goods has not passed to the Customer.

Personal Property Securities Act 2009 (“PPSA”)

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

Upon assenting to these terms and conditions in writing the Customer 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 Goods/Equipment and/or collateral (account) – being a monetary obligation of the Customer to the Contractor for Services – that have previously been supplied and that will be supplied in the future by the Contractor to the Customer.

The Customer undertakes to:

• 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 Contractor may reasonably require to;

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

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

• correct a defect in a statement referred to in clause 11.3(a)(i) or 11.3(a)(ii);

• indemnify, and upon demand reimburse, the Contractor 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 Goods/Equipment charged thereby;

• not register a financing change statement in respect of a security interest without the prior written consent of the Contractor;

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

• immediately advise the Contractor of any material change in its business practices of selling Goods which would result in a change in the nature of proceeds derived from such sales.

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

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

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

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

The Customer must unconditionally ratify any actions taken by the Contractor under clauses 11.2 to 11.5.

Subject to any express provisions to the contrary (including those contained in this clause 11), nothing in these terms and conditions is intended to have the effect of contracting out of any of the provisions of the PPSA. 

Security and Charge

In consideration of the Contractor agreeing to supply the Goods/Equipment, the Customer 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 Customer either now or in the future, to secure the performance by the Customer of its obligations under these terms and conditions (including, but not limited to, the payment of any money). 

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

The Customer irrevocably appoints the Contractor and each director of the Contractor as the Customer’s true and lawful attorney/s to perform all necessary acts to give effect to the provisions of this clause 12 including, but not limited to, signing any document on the Customer’s behalf.

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

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

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). 

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

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

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

If the Contractor is required to replace the Goods under this clause or the CCA, but is unable to do so, the Contractor may refund any money the Customer has paid for the Goods.

If the Customer is not a consumer within the meaning of the CCA, the Contractor’s liability for any defect or damage in the Goods is:

• limited to the value of any express warranty or warranty card provided to the Customer by the Contractor at the Contractor’s sole discretion;

• limited to any warranty to which the Contractor is entitled, if the Contractor did not manufacture the Goods;

• otherwise negated absolutely. 

• Subject to this clause 13, returns will only be accepted provided that:

• the Customer has complied with the provisions of clause 13.1; and

• the Contractor has agreed that the Goods are defective; and

• the Goods are returned within a reasonable time at the Customer’s cost (if that cost is not significant); and

• the Goods are returned in as close a condition to that in which they were delivered as is possible.

• Notwithstanding clauses 13.1 to 13.8 but subject to the CCA, the Contractor shall not be liable for any defect or damage which may be caused or partly caused by or arise as a result of:

• the Customer failing to properly maintain or store any Goods/Equipment; 

• the Customer using the Goods/Equipment for any purpose other than that for which they were designed; 

• the Customer continuing the use of the Goods/Equipment after any defect became apparent or should have become apparent to a reasonably prudent operator or user; 

• the Customer failing to follow any instructions or guidelines provided by the Contractor;

• fair wear and tear, any accident, or act of God.

In the case of second hand Goods, unless the Customer is a consumer under the CCA, the Customer acknowledges that it has had full opportunity to inspect the second hand Goods prior to delivery and accepts them with all faults and that to the extent permitted by law no warranty is given by the Contractor as to the quality or suitability for any purpose and any implied warranty, statutory or otherwise, is expressly excluded. The Customer acknowledges and agrees that the Contractor has agreed to provide the Customer with the second hand Goods and calculated the Price of the second hand Goods in reliance of this clause 13.10.

The Contractor may in its absolute discretion accept non-defective Goods for return in which case the Contractor may require the Customer to pay handling fees of up to ten percent (10%) of the value of the returned Goods plus any freight costs.

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

Intellectual Property

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

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

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

Default and Consequences of Default

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 Contractor’s sole discretion such interest shall compound monthly at such a rate) after as well as before any judgment.

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

Further to any other rights or remedies the Contractor may have under this contract, if a Customer has made payment to the Contractor, and the transaction is subsequently reversed, the Customer shall be liable for the amount of the reversed transaction, in addition to any further costs incurred by the Contractor under this clause 15 where it can be proven that such reversal is found to be illegal, fraudulent or in contravention to the Customer’s obligations under this contract.

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

• any money payable to the Contractor becomes overdue, or in the Contractor’s opinion the Customer will be unable to make a payment when it falls due; 

• the Customer has exceeded any applicable credit limit provided by the Contractor;

• the Customer 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

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

Cancellation

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

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

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

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

Privacy Act 1988

The Customer agrees for the Contractor 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 Customer in relation to credit provided by the Contractor. 

The Customer agrees that the Contractor may exchange information about the Customer with those credit providers and with related body corporates for the following purposes:

• to assess an application by the Customer; and/or

• to notify other credit providers of a default by the Customer; and/or

• to exchange information with other credit providers as to the status of this credit account, where the Customer is in default with other credit providers; and/or

• to assess the creditworthiness of the Customer including the Customer’s repayment history in the preceding two years.

The Customer consents to the Contractor being given a consumer credit report to collect overdue payment on commercial credit.

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

• the provision of Goods/Equipment; and/or

• analysing, verifying and/or checking the Customer’s credit, payment and/or status in relation to the provision of Goods/Equipment; and/or

• processing of any payment instructions, direct debit facilities and/or credit facilities requested by the Customer; and/or

• enabling the collection of amounts outstanding in relation to the Goods/Equipment.

The Contractor may give information about the Customer to a CRB for the following purposes:

to obtain a consumer credit report; 

allow the CRB to create or maintain a credit information file about the Customer including credit history.

The information given to the CRB may include:

• personal information as outlined in 17.1 above;

• name of the credit provider and that the Contractor is a current credit provider to the Customer;

• whether the credit provider is a licensee;

• type of consumer credit;

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

• 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 Customer no longer has any overdue accounts and the Contractor has been paid or otherwise discharged and all details surrounding that discharge(e.g. dates of payments);

• information that, in the opinion of the Contractor, the Customer has committed a serious credit infringement;

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

The Customer shall have the right to request (by e-mail) from the Contractor:

• a copy of the information about the Customer retained by the Contractor and the right to request that the Contractor correct any incorrect information; and

• that the Contractor does not disclose any personal information about the Customer for the purpose of direct marketing.

The Contractor will destroy personal information upon the Customer’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. 

The Customer can make a privacy complaint by contacting the Contractor via e-mail. The Contractor 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 Customer is not satisfied with the resolution provided, the Customer can make a complaint to the Information Commissioner at www.oaic.gov.au.

Unpaid Seller’s Rights

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

• a lien on the item; and

• 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 goods.

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

Equipment Hire

Equipment shall at all times remain the property of the Contractor and is returnable on demand by the Contractor. In the event that Equipment is not returned to the Contractor in the condition in which it was delivered the Contractor retains the right to charge the Customer the full cost of repairing the Equipment. In the event that Equipment is not returned at all the Contractor shall have right to charge the Customer the full cost of replacing the Equipment.

The Customer shall:

• keep the Equipment in their own possession and control and shall not assign the benefit of the Equipment nor be entitled to a lien over the Equipment;

• 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;

• keep the Equipment, complete with all parts and accessories, clean and in good order as delivered, and shall comply with any maintenance schedule as advised by the Contractor to the Customer.

The Customer accepts full responsibility for the safekeeping of the Equipment and the Customer agrees to insure, or self insure, the Contractor’s interest in the Equipment and agrees to indemnify the Contractor 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 effect adequate Public Liability Insurance covering any loss, damage or injury to property or persons arising out of the use of the Equipment. Further the Customer will not use the Equipment nor permit it to be used in such a manner as would permit an insurer to decline any claim.

Dispute Resolution 

If a dispute arises between the parties to this contract, then either party shall send to the other party a notice of dispute in writing adequately identifying and providing details of the dispute. Within fourteen (14) days after service of a notice of dispute, the parties shall confer at least once, to attempt to resolve the dispute. At any such conference each party shall be represented by a person having authority to agree to a resolution of the dispute. In the event that the dispute cannot be so resolved either party may by further notice in writing delivered by hand or sent by certified mail to the other party refer such dispute to arbitration.  Any arbitration shall be:

• referred to a single arbitrator to be nominated by the President of the Institute of Arbitrators Australia; and

• conducted in accordance with the Institute of Arbitrators Australia Rules for the Conduct of Commercial Arbitration.
  

Service of Notices

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

by handing the notice to the other party, in person;

• by leaving it at the address of the other party as stated in this contract;

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

• 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;

• if sent by email to the other party’s last known email address.

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.

Trusts

If the Customer 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 Contractor may have notice of the Trust, the Customer covenants with the Contractor as follows:

• the contract extends to all rights of indemnity which the Customer now or subsequently may have against the Trust and the trust fund;

• the Customer 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 Customer against the Trust or the trust fund. The Customer 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.

• the Customer will not without consent in writing of the Contractor (the Contractor will not unreasonably withhold consent), cause, permit, or suffer to happen any of the following events;

• the removal, replacement or retirement of the Customer as trustee of the Trust;

• any alteration to or variation of the terms of the Trust;

• any advancement or distribution of capital of the Trust; or

• any resettlement of the trust property.

  
  

Building and Construction Industry Security of Payments Act 2009 

At the Contractor’s sole discretion, if there are any disputes or claims for unpaid Goods and/or Services then the provisions of the Building and Construction Industry Security of Payments Act 2009 may apply.

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 2009 of Tasmania, except to the extent permitted by the Act where applicable.

General

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.

These terms and conditions and any contract to which they apply shall be governed by the laws of the state in which the Contractor has its principal place of business, and are subject to the jurisdiction of the courts in that state.

Subject to clause 13, the Contractor shall be under no liability whatsoever to the Customer for any indirect and/or consequential loss and/or expense (including loss of profit) suffered by the Customer arising out of a breach by the Contractor of these terms and conditions (alternatively the Contractor’s liability shall be limited to damages which under no circumstances shall exceed the Price of the Goods).

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

The Customer cannot licence or assign without the written approval of the Contractor.

The Contractor 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 Customer agrees and understands that they have no authority to give any instruction to any of the Contractor’s sub-contractors without the authority of the Contractor.

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

Neither party shall be liable for any default due to any act of God, war, terrorism, strike, lock-out, industrial action, fire, flood, storm or other event beyond the reasonable control of either party.

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.