PARTIES:
SCP Midwest Pty Ltd trading as Sun City Plumbing (SCP);
The entity referred to as the Customer in Item 2 of Schedule 1 (Customer); and
The entity referred to as the Guarantor in Item 3 of Schedule 1 (Guarantor).
RECITALS
A. The Customer has engaged SCP to undertake the Services.
B. The Guarantor guarantees to SCP the due and punctual performance of all obligations under this Agreement.
C. The Parties enter into this Agreement to record the terms and conditions of the arrangement.
OPERATIVE PART – The parties agree as follows:
- DEFINITIONS
1.1 In this Agreement the following terms have the following meanings:
(a) Agreement means and includes these terms and conditions, Schedule 1, and any and all Orders;
(b) Claim means any and all liabilities, losses, damages, costs, expenses, debts, notices, judgments, awards, petitions, allegations, actions, proceedings, penalties, or other like claims made under any cause of action or by any person or entity including a third party;
(c) Commencement Date means the date described in Schedule 1, being the date of commencement of the Services, or such earlier time as the Customer accepts this Agreement in accordance with clause 3.4;
(d) Damage means any physical loss or damage caused to or by the Equipment including as a result of impact, misuse, mishandling, faulty operation, operating in abnormal conditions, negligence by the Customer’s operators, incorrect or neglected servicing on the part of the Customer, or where component parts fail prematurely due to faulty operation or maintenance by the Customer;
(e) Equipment means any hire equipment described in an Order including all attachments, accessories, tools and supporting documentation (but does not include any goods purchased by the Customer or goods which are installed (or to be installed) or otherwise used by the Labour in undertaking the Services);
(f) Force Majeure Event means any event which prevents a Party from performing, or delays the performance of, any of its obligations under this Agreement including (without limitation):
(i) forces of nature, any act of God, fire, storm or explosion;
(ii) any strike, lockout, industrial action, war, sabotage, riot, act of terrorism, any denial of service attack, insurrection, civil commotion, national emergency (whether in fact or in law), power shortage, epidemic, pandemic, quarantine, radiation or radioactive contamination;
(iii) any action or inaction by any organ of government or government agency; or
(iv) a change in any Law including any new Law,
to the extent that act, event or cause is beyond the reasonable control of the affected Party.
(g) GST Act means the A New Tax System (Goods and Services Tax) Act 1999 (Cth);
(h) Grantor means the Customer;
(i) Insolvency Event includes an event where a party becomes unable to pay its debts when they are due, a receiver or receiver and manager is appointed over any of a party’s property or assets, an administrator, liquidator or provisional liquidator is appointed to a party, a party enters into any arrangement with its creditors, a party is wound up or becomes bankrupt, or any other analogous event or circumstance occurs under the laws of any jurisdiction;
(j) Insurance means the insurances detailed in Schedule 1.
(k) Labour means any employee, contractor or agent of SCP at any time during the Services Period, including operators and associated personnel supplied by SCP in conjunction with the Equipment or installation of goods;
(l) Law means a statute, ordinance, code, regulation, by-law, local law, official directive, order, instrument, undertaking, obligation or applicable judicial administrative or regulatory decree, judgment or order and includes the conditions and standards, authorisations, licences, permits, consents, assurances bonds or similar requirements including all applicable standards and obligations under the common law and at any time means the Law at that time;
(m) Non PPSA Property means property:
(i) which is not personal property as defined in the PPSA; or
(ii) to which the PPSA does not apply;
(n) Party means a party to this Agreement;
(o) PPSA means the Personal Property Securities Act 2009 (Cth);
(p) PPSR means the Personal Property Securities Register;
(q) Operator means a person, employee, contractor or agent of the Customer who at any time operates, uses or accesses any Equipment.
(r) Order means an order or request for the supply or provision of the Services by SCP to the Customer;
(s) Rate means the price or fee payable by the Customer to SCP in exchange for the Services, to be specified in an Order;
(t) Return Location means the return location specified in Schedule 1 (if any), or as otherwise directed in writing by SCP;
(u) Secured Money means all money that the Grantor (whether alone or with another person) is or at any time may become actually or contingently liable to pay to or for the account of the Secured Party (whether alone or with another person) for any reason under or in connection with this Agreement. It includes money by way of principal, interest, fees, costs, indemnities, guarantees, charges, duties or expenses or payment of liquidated or unliquidated damages for which the Grantor is or at any time may become liable under or in connection with this Agreement, or as a result of a breach of or default under or in connection with this Agreement. Where the Grantor would have been liable but for its Insolvency, it will be taken to remain liable;
(v) Secured Party means SCP;
(w) Security Interest has the meaning given to the term ‘security interest’ in the PPSA;
(x) Serial Numbered Collateral means any item of personal property that may or must be described by serial number in a registration on the PPSR;
(y) Services means the provision of plumbing or related services, the hire or supply of Equipment or Labour and the installation of goods, as the case may be;
(z) Services Period means the period from the Commencement Date to the Termination Date (if any);
(aa) Site means the location where the Equipment is to be used, as specified in Schedule 1 (if any) or otherwise directed by SCP;
(bb) Termination Date means the date specified in Schedule 1 or the date on which this agent is terminated in accordance with clause 15. - INTERPRETATION
In this Agreement, unless the context otherwise requires:
2
(a) headings, clause headings and underlining have been inserted for
guidance only and shall not be deemed to form any part of the
context of this Agreement;
(b) alternative grammatical forms of defined words or expressions have
corresponding meanings;
(c) words denoting the singular number include the plural and vice versa
and words denoting a given gender include all genders;
(d) the expression “person” includes an individual, body corporate, a
business or an unincorporated association;
(e) the words “including” or “includes” means “including, but not
limited” or “includes, without limitation” respectively;
(f) an agreement includes any undertaking, representation, Agreement,
agreement or legally enforceable arrangement or understanding
whether written or not;
(g) a reference to any legislation or legislative provision includes any
statutory modification or re-enactment of, or legislative provision
substituted for, and any subordinate legislation issued under, that
legislation or legislative provision;
(h) a reference to a recital, clause or schedule is to a recital, clause or
schedule of or to this Agreement;
(i) a reference to any Agreement or document is to that Agreement or
document (and, where applicable, any of its provisions) as amended,
novated, supplemented or replaced from time to time;
(j) a reference to “dollars” or “$” is to Australian currency;
(k) this Agreement binds each party’s legal personal representatives,
successors and lawful assignees;
(l) when an act must be done under this Agreement on a day which is
not a Business Day, that act shall be done on the next Business Day;
and
(a) when a party comprises two or more persons the rights and
obligations of such persons pursuant to this Agreement inure to the
benefit of and bind all of them jointly and each of them severally. - AGREEMENT
3.1 This document constitutes a binding agreement between the parties
specified in Schedule 1 and remains in force at all times during the
Services Period.
3.2 This Agreement will apply to Services rendered by SCP to the Customer;
3.3 If SCP is engaged by an agent of the Customer, or if the Customer engages
SCP as an agent of another person, the Customer and agent each:
(a) warrant and represent that the agent has authority to accept these
Terms on behalf of the Customer; and
(b) are jointly and severally liable for all obligations and covenants given
by the Customer under this Agreement.
3.4 The Customer may accept this Agreement by:
(a) signing schedule 1 of this Agreement;
(b) signing an Order;
(a) making any prepayment or paying a deposit;
(b) communicating acceptance of an Order;
(c) instructing SCP to supply Services; or
(d) doing anything else consistent with permitting, or requesting SCP to
supply the Services.
3.5 The Customer acknowledges and agrees that this Agreement is binding
between the parties notwithstanding that Schedule 1 may not be
completed or signed.
3.6 To the extent of any inconsistency between this Agreement and any other
document other than an Order relating to the provision of Services by
SCP to the Customer, the terms of this Agreement shall prevail. To the
extent of any inconsistency between the terms of this Agreement and
any Order, the Order will prevail. - PROVISION OF GOODS
This Clause 4 applies to the extent that the Services relate to the purchase
of goods by the Customer (including where SCP has been engaged by the
Customer to install goods). It does not apply to the extent that SCP is
engaged to provide Equipment for hire by the Customer.
4.1 Title to goods
(a) The risk of loss of, or Damage to, any goods pass to the Customer on
delivery or installation.
(b) Title to any items delivered to the Customer or installed for the
Customer will not pass to the Customer until the Customer has paid
all amounts owing to SCP in full.
4.2 Dealings with goods
Until the Customer has paid all amounts owing to SCP in full, the
Customer must:
(a) store any items delivered by SCP but not installed separately and
mark them as SCP’s property;
(b) not create or allow any interest in, or dispose or part with possession
of, items delivered or installed by SCP; or
(c) not allow any items delivered or installed by SCP to become an
accession to or commingled with any other property.
If any of the above occurs, the Customer must notify SCP immediately.
4.3 Proceeds
If the Customer sells or disposes of any items SCP has delivered or
installed before the Customer has paid for them in full, the Customer must
hold the proceeds of the sale or disposal on trust for SCP to secure
payment of the amount owing. The Customer must pay all monetary
proceeds, up to the amount owed, into a separate account until they are
paid over to SCP, and must not mix them with any other amount or use
them to pay a debt.
4.4 Recovery of goods
If the Customer does not pay SCP the full amount when due, SCP may:
(a) re-take possession of the items SCP has delivered or installed. SCP
may enter any land or premises for the purpose of re-taking
possession and SCP may deal with any such items as SCP thinks fit;
and
(b) place a charge over the land on which SCP has installed any items for
any amounts outstanding, and the Customer indemnifies SCP from
and against any Claims by third parties arising out of SCP’s actions.
4.5 Accessions and commingling
If any items delivered or installed by SCP becomes an accession to or other
property or becomes part of a product or mass, then SCP’s security interest
continues in the other property, product or mass. - SUPPLY OF EQUIPMENT
5.1 From time to time during the Services Period, the Customer may request
SCP supply Equipment to it for hire, as provided for in an Order. SCP may
accept or reject an Order in its absolute discretion, and nothing in this
Agreement creates an obligation on the part of SCP to make any
Equipment available to the Customer of any kind, for any specified period
of time, or at all.
5.2 Nothing in this Agreement constitutes a transfer to the Customer of title
or ownership, whether legal or equitable, in any Equipment. - EQUIPMENT HIRE
6.1 Requirements of Equipment supplied
The Equipment is hired on an “as-is” basis and it is the sole responsibility
of the Customer to determine that the Equipment hired is:
(a) adequate for the purposes intended;
(b) safe for the use for which it is intended;
(c) in good working order and without Damage or defect; and
(d) suitable in all material respects.
6.2 Use of Equipment
The Customer agrees that for the duration of the Services Period and any
other period in which it is in possession of any Equipment it will:
(a) keep and maintain the Equipment in a clean condition and good
repair and working order;
(b) secure, lock up and otherwise ensure the safekeeping of the
Equipment when not in use;
(c) repair or replace damaged tyres;
(d) use (and ensure its Operators use) the Equipment) in a proper and
skilful manner within the capacity for which it was designed;
(e) ensure that the Equipment is operated by a suitably experienced,
licensed, and qualified Operators, in accordance with the relevant
manufacturer’s recommendations;
(f) immediately notify SCP of any accident, loss, theft, or damage
involving the Equipment;
(g) use and store the Equipment at the Site and only remove the
Equipment from that location for the purpose of returning it to SCP
or with the prior consent of SCP (such consent not to be
unreasonably withheld);
(h) ensure that the Equipment is clearly identified as the property of SCP
and must not remove any labels, signage, serial numbers, registration
numbers, plates, or other forms of identification of the Equipment
without the prior written consent of SCP; and
(i) ensure that the use of the Equipment is in accordance with all Laws.
6.3 Servicing
(a) During the Service Period the Customer shall be responsible and
liable for all upkeep, servicing and maintenance in accordance with
SCP’s schedule or other maintenance requirements (or if there is any
doubt or discrepancy, the original equipment manufacturer’s
recommendations) or as otherwise required to keep the Equipment
in good working order and condition.
(b) The Customer shall complete all major servicing in respect of the
Equipment to keep it in good working order and condition, including
but not limited to servicing of electrical system, hydraulic hoses, oil
leaks, oil changes, filter changes and attachment changes.
3
(c) The Customer shall carry out (with all due care and on a timely basis)
the daily, weekly and original equipment manufacturer scheduled
servicing, greasing, inspection, statutory servicing requirements (if
any), maintenance and adjustments of the Equipment. Servicing
includes, but is not limited to, the following:
(i) greasing, oiling, oil sampling and lubrication, including those
specified in instructions provided by SCP from time to time;
(ii) adjustment of bolts, nuts, clamps, etc;
(iii) cleaning of the Equipment;
(iv) replacement of consumable wear parts; and
(v) any other regular servicing tasks if required.
(d) Copies of all service reports, oil samples, records, invoices, and other
documentation relating to normal servicing, major servicing and
repairs to major components undertaken by or on behalf of the
Customer must be forwarded to SCP upon request.
(e) The costs of servicing and breakdown repairs shall be paid by the
Customer directly.
6.4 Damage to Equipment
(a) If at any time during the Services Period the Equipment suffers
Damage, becomes unsafe or becomes in a state of disrepair, the
Customer must immediately discontinue use of the Equipment and
notify SCP. The Customer will advise SCP before attempting to
repair the Equipment.
(b) If the failure is caused by reasonable wear and tear, due to an
underlying, pre-existing, or fundamental fault with the Equipment
which renders the Equipment unfit for purpose and for no other
reason associated with the Customer (including without limitation
the Customer’s negligence or misuse), SCP agrees, acting reasonably,
to do one of the following:
(i) if possible, repair the Equipment as soon as practicable; or
(ii) make similar or replacement Equipment available to the
Customer; and
(iii) adjust the Rates and/or hours charged in respect of the
Equipment to take into account the failure of the Equipment
(pro rata charges).
(c) During the Service Period, the Customer shall be responsible for any
Damage to the Equipment, excluding fair wear and tear.
6.5 Modification
The Customer shall not make any modification to the Equipment without
the prior written consent of SCP, which may be withheld in the sole
discretion of SCP.
6.6 Return of Equipment
(a) The Customer must arrange for mobilisation, demobilisation, and all
other transport of the Equipment during the Services Period at its
own cost (including Insurance costs).
(b) The Customer must at its own cost and expense, at the end of the
Services Period, return all Equipment to the Return Location in the
same condition as at the Commencement Date, reasonable wear and
tear excepted, with all oil reservoirs and fuel tanks filled.
(c) Except as otherwise agreed in writing, SCP is entitled to charge the
Customer the Rate for any period beyond the Termination Date until
such date as the Equipment is returned to the Return Location in the
condition referred to in clause 6.6(a).
(d) Payment for tyres, tracks, undercarriage, buckets, tubs and GET shall
be on a pro rata basis, based on the condition those components were
supplied in and the replacement cost of those components.
(e) If the Customer does not comply with its obligations under this
clause 6.6, SCP may, in its absolute discretion, restore the Equipment
to the same condition as at the Commencement Date. The Customer
will immediately reimburse SCP on demand for all amounts incurred
by SCP under this clause 6.6(e).
6.7 Access
Subject to any applicable statutory rules and regulations, the Customer
grants to SCP an absolute right of access to the Customer’s premises and
the Site for the purpose of inspecting, maintaining, reclaiming, or retaking
possession of the Equipment. Where the Equipment is on third party
premises, the Customer will use its best endeavours to procure the
consent of the third party to facilitate SCP’s access. SCP will give
reasonable notice of its intention to access the Site or the Customer’s
premises and will, while on the Site or the Customer’s premises, comply
with all requirements in respect of health and safety and all other
reasonable Site related requirements.
6.8 Control
(a) The Customer shall not part with possession or control of the
Equipment without the prior consent of SCP. The Customer takes the
Equipment as bailee only and title to and ownership of the
Equipment remains at all times with SCP.
(b) The Customer must not sell or offer for sale or lend out or charge or
mortgage the Equipment or allow any encumbrance or security
interest to be created or become exercisable in respect of the
Equipment (except any encumbrance or security interest in favour of
SCP) and indemnifies SCP against any loss or expense incurred as a
result of the Customer’s loss of possession of the Equipment for any
reason. - RELATIONSHIP
(a) The parties acknowledge and agree that the relationship between
them is that of principal and independent contractor. Nothing stated
in this Agreement shall be construed as constituting the parties as
partners, or as creating the relationship of employer and employee,
master and servant or principal and agent between the parties.
Neither party has any power, right or authority to bind the other, or
to assume or create any obligation or responsibility, express or
implied, on behalf of the other or in the other’s name.
(b) The Operators are not officers, employees or agents of SCP, and must
not represent themselves as having the authority to bind or represent
SCP.
(c) The Customer:
(i) is solely responsible for paying its employees and agents,
including its Operators, all remuneration and benefits including
salary or wages, allowances, penalty rates, overtime, loadings,
superannuation, annual leave, sick leave, long service leave and
any other benefits to which they may be entitled as its
employees, and for otherwise complying with the legislation and
industrial awards which are applicable to its employees;
(ii) must pay all taxes and duties in respect of such remuneration and
benefits and comply with any requirement under applicable
superannuation and taxation legislation; and
(iii) is responsible for all acts and omissions of its Operators, as
though they were acts or omissions of the Customer. - WARRANTIES
The Customer acknowledges and agrees that:
(a) SCP is not the manufacturer of the Equipment;
(b) the Equipment has been selected by the Customer as suitable for its
purposes;
(c) SCP makes no warranty or representations to the Customer as to the
suitability of any Labour, either generally or for the Services
requested (including but not limited to the qualifications and
experience of the Labour undertaking the Services);
(d) no guarantee, condition, warranty or representation of any kind has
been or is given or made by SCP, its directors, employees, agents or
representatives with respect to or in connection with the Service; and
(e) all other conditions, warranties or representations, express or
implied, statutory or otherwise, as to the state, quality, description or
otherwise of the Services or as to its fitness for any purpose are
excluded by SCP to the extent permitted by Law. - INDEMNITY AND LIMITATION OF LIABILITY
(a) The Customer is liable for and indemnifies SCP, its related bodies and
their officers, employees and agents from and against any direct or
indirect Claims however suffered or incurred by SCP, (including
consequential losses, loss or revenue and related losses) in connection
with:
(i) the use of the Equipment by the Customer or any Operator or
other employee of the Customer;
(ii) breach by the Customer of any term, obligation, warranty,
representation, undertaking or other acknowledgment
contained in this Agreement;
(iii) tort, including negligence or breach of a legislative requirement;
(iv) breach of equitable duty, including breach of confidentiality;
and
(v) any Claims by a third party against SCP arising out of or in
connection with any matter set out in clauses (a)(i)-(v) above.
(b) The indemnities contained in this clause 9 extend (without limiting
the generality of the foregoing) to any Claims incurred by SCP by
virtue of any injury or disability suffered by any employee of the
Customer, however and whenever arising.
(c) The obligations of the Customer to indemnify SCP under this
Agreement or at law shall not be affected by:
(i) the termination of this Agreement;
(ii) the obligation of the Customer to effect insurance; or
(iii) any obligation of SCP to effect insurance.
(d) The liability of SCP to the Customer for any loss or Claim arising
under this Agreement shall be limited to the amount which SCP is
able to recover under a policy of insurance held by SCP under this
Agreement. SCP shall not be liable to the Customer for any indirect,
4
special or consequential losses suffered by the Customer in relation
to this Agreement or the Equipment. - RATES
(a) Unless otherwise agreed by the Parties in writing, the Rates stated in
an Order are the rates or fees payable to SCP in respect of an Order.
(b) SCP shall issue tax invoices to the Customer on payment terms of no
less than 14 days.
(c) All amounts invoiced to the Customer must be paid by the Customer
in full without set off, deduction, withholding or counterclaim.
Subject to clause 6.4, the Customer is not entitled to any rebate of the
Rates in respect of any period during which the Equipment is not in
the possession of the Customer or is unserviceable, out of order or
unusable, and SCP shall not be liable to provide the Customer with
any replacement equipment, goods, or parts. - WORK HEALTH AND SAFETY
(a) The Customer shall be responsible for the safety of its Operators and
will duly observe and comply with all relevant Laws and SCP’s
requirements governing the safe practice of the tasks performed by
them, and shall be responsible for providing a safe system of work for
their employees.
(b) The Customer must:
(i) ensure that it, or its personnel, does not perform any function
where safety or health may be endangered.
(ii) demonstrate compliance with all relevant safety Laws and
standards;
(iii) If requested by SCP, provide a copy of its safety management
plan or safe work procedures relevant for its use of the
Equipment; and
(iv) promptly notify SCP of any accident, injury or property damage
which occurs when in use of the Equipment. - ENVIRONMENT
The Customer shall observe and comply with all relevant Laws relating
to the environment and pollution. The Customer must maintain and
comply with the terms of any permissions, approvals, licenses, and
permits required in connection with the use of the Equipment at the Site. - INSURANCE
13.1 Insurance required
(a) Prior to execution of this Agreement and for the full duration of the
Services Period, the Customer must at its own cost effect and
maintain current policies of Insurance.
(b) The Customer shall insure the Equipment against theft, physical loss
or damage during the Service Period including whilst in transit
anywhere in Australia, for not less than its market value.
13.2 Endorsement
(a) The public liability insurance must, unless SCP agrees in writing, be
endorsed to note SCP as owner of the Equipment and to indemnify
SCP against any liability which may arise from the Customer’s use of
the Equipment.
(b) The Customer’s plant and equipment insurance shall be endorsed to
note the interests of SCP as owner of the Equipment and to
indemnify SCP against any liability which may arise from any loss or
Damage to, or theft of, the Equipment caused by an act or omission
of the Customer.
13.3 Costs
The Customer agrees to pay all costs associated with the Insurances and
accepts responsibility for the payment of any claims deductibles which
may be applicable.
13.4 Certificate of currency
Upon request, the Customer shall provide SCP with certificates of
currency evidencing the Insurances before taking possession of the
Equipment and upon any change to or renewal of the Insurances. - TERMINATION
14.1 Termination without notice
Without limiting any other remedies available to SCP, SCP may, by notice
in writing to the Customer terminate an Order or this Agreement, with
effect from the date in the notice, if in SCP’s reasonable opinion:
(a) the Customer breaches any term of this Agreement;
(b) the Customer fails to comply with the terms of an accepted Order;
(c) the Customer commits an act or omits to do an act which SCP
considers is likely to damage SCP’s business or reputation;
(d) the Customer suffers or is likely to suffer an Insolvency Event; or
(e) SCP becomes unable to perform the Services in the manner specified
in this Agreement or an Order.
14.2 Termination with notice
Notwithstanding clause 14.1, SCP may terminate this Agreement without
cause at any time by giving 30 days’ notice to the Customer.
14.3 Termination by Customer
The Customer must not terminate this Agreement during the currency of
any Order. The Customer may otherwise terminate this Agreement on 60
days’ notice to SCP.
14.4 Rights unaffected by termination
Termination of this Agreement does not affect the rights accrued by the
parties under the Agreement and at law in respect of any breach of this
Agreement by the other party. - RESTRAINT
15.1 Definitions
In this clause:
(a) Capacity means to carry on, participate in, provide finance or
services, or otherwise be directly or indirectly involved as a
shareholder, unitholder, director, consultant, adviser, contractor,
principal, agent, manager, employee, beneficiary, partner, associate,
trustee or financier.
(b) Restraint Area means:
(i) Australia; or if for any reason that is unenforceable
(ii) Western Australia; or if for any reason that is unenforceable
(iii) the city in which SCP has performed the Services.
(c) Restraint Period means:
(i) 12 months from the date of the termination of this Agreement;
or if for any reason that is unenforceable
(ii) 6 months from the date of the termination of this Agreement; or
if for any reason that is unenforceable
(iii) 3 months from the date of the termination of this Agreement.
(d) Restricted Services means the engagement of any of SCP’s employees,
contractors or sub-contractors for the supply of Equipment,
provision of Labour or any other work which is substantially similar
to the Services.
15.2 Obligations
(a) During the Services Period and the Restraint Period, the Customer
must not, in the Restraint Area:
(i) solicit, canvass, approach or accept any approach from any of
SCP’s employees, contractors or sub-contractors;
(ii) engage any third party to undertake any Restricted Services; or
(iii) procure, authorise or encourage any other person to engage in
the conduct referred to in clause 15.2(a)Error! Reference source
not found. or 15.2(a)(i) on its behalf or otherwise.
(b) The Customer acknowledges that:
(i) the covenants in clause 15.2(a) are separately enforceable.
Should any of those covenants be in any way invalid or
unenforceable, the other provisions will not be affected;
(ii) any breach by the Customer of this clause would cause
irreparable harm and significant damage to SCP for which
damages would not be an adequate remedy;
(iii) SCP has the right to seek and obtain immediate injunctive relief
in relation to any breach of this clause; and
(iv) the covenants contained in this clause are fair and reasonable
and SCP is relying upon this acknowledgement in entering into
this Agreement.
(c) The obligations in this clause survive the termination of this
Agreement. - GST
To the extent that the consideration to be paid or provided under this
Agreement is not expressed to be GST inclusive, a party must also pay the
GST payable on a taxable supply made to it. The party making the taxable
supply must provide a tax invoice to the other party at or before the time
that the other party is required to pay the GST. Terms used in this clause
have the meanings given to them in the GST Act. - DISPUTE RESOLUTION
17.1 In the event either party to this Agreement alleges a breach of this
Agreement, then before any legal proceedings or recovery action are
instituted, the party alleging the breach (First Party) must first issue a
written notice of dispute to the other party (Second Party) setting out the
alleged breach, the amount (if any) in dispute, the action required, and
the time within which the First Party requires the breach to be rectified
(which must not be less than 7 days) (Dispute Notice).
17.2 If the dispute is not resolved within 14 days after the Dispute Notice is
given to the other party or parties, the parties must endeavour to settle
the dispute in connection with the Agreement by mediation. The
mediation is to be conducted by a mediator who is independent of the
parties and appointed by agreement of the parties, and must be conducted
in Perth, Western Australia. The Resolution Institute mediation and
conciliation rules (at the date of this Agreement) as amended by this
clause apply to the mediation, except where they conflict with this clause
(in which case this clause shall prevail).
5
17.3 If the parties cannot agree upon the mediator and the mediator’s
remuneration within 7 days after referral to mediation, the chair of the
Resolution Institute (principal appointer) or the principal appointer’s
nominee, acting on the request of any party to the dispute, shall appoint
a mediator and determine the rate. The mediator’s remuneration shall be
borne by the parties to the dispute in equal shares. Each party must pay
its own costs of the mediation.
17.4 If the dispute is not resolved within 14 days after the appointment of the
mediator, a party may commence court proceedings in relation to the
dispute.
17.5 To the extent that a party seeks to have a Dispute resolved or determined
in a different forum, including but not limited to a Court, another party
may apply to have that process or proceeding stayed and / or dismissed.
17.6 Nothing in this clause prevents the parties from commencing proceedings
for urgent interlocutory relief where appropriate. - FORCE MAJEURE
18.1 Where any failure or delay by a Party (Affected Party) in the performance
of its obligations (except payment obligations) under this Agreement is
caused, directly or indirectly, by a Force Majeure Event:
(a) the Affected Party must as soon as practicable give the other Party
written notice of that fact;
(b) the Affected Party is not liable for that failure or delay; and
(c) the Affected Party’s obligations under this Agreement are suspended,
to the extent to which they are affected by the relevant Force
Majeure Event, for the duration of the Force Majeure Event.
18.2 If the Force Majeure Event continues for more than 30 consecutive days
then while it continues, the non-affected Party may, in its sole discretion,
terminate this Agreement with immediate effect. - GUARANTEE AND INDEMNITY
19.1 A reference in this clause to “Guarantor” is a reference to the person or
persons stated in the schedule to this Agreement. Where there are more
than one (1) Guarantors, this Agreement binds each of them separately
and any two or more of them jointly.
19.2 The Guarantor personally guarantees to SCP the due and punctual
performance of all obligations under this Agreement, including the
payment of all monetary sums due under it.
19.3 As a separate and independent liability, the Guarantor indemnifies SCP
and agrees to keep SCP indemnified against all Claims suffered or incurred
by SCP by reason of any non-payment by the Customer or Guarantor.
19.4 SCP may make demand under this guarantee at any time, without first
having to make demand upon the Client.
19.5 The obligations of the Guarantor under this Agreement are an irrevocable
and continuing guarantee and indemnity, and the Guarantor will not be
wholly or partially released from the obligations under this Agreement
by any matter or thing including, but not limited to:
(a) the payment of money to SCP;
(b) any advances of credit by SCP;
(c) the performance and observance of any of the Customer’s or
Guarantor’s obligations under this Agreement;
(d) the granting of time or other indulgence or consideration by SCP to
any person;
(e) a subsequent transaction or arrangement between SCP and any other
person;
(f) SCP failing or neglecting to exercise any of its rights against the
Customer or the Guarantor;
(g) the amendment or variation of any document or agreement;
(h) an act or omission of SCP which would affect, release or discharge
the liability of any person to SCP but for this provision;
(i) the death or incapacity, or notice to SCP of the death or incapacity,
of any person;
(j) the bankruptcy or winding up of or the appointment of an official
manager to any person, or the dissolution or change in the
constitution of any partnership; and or
(k) the termination of this Agreement. - PPSA
20.1 Words and phrases used in this clause that have defined meanings in the
PPSA have the same meaning as in the PPSA unless context otherwise
indicates.
20.2 The Parties acknowledge and agree that the hiring of the Equipment
under this Agreement constitutes a Security Interest in favour of the
Secured Party, and the Secured Party’s rights and interest in proceeds
derived from the Equipment constitutes a Security Interest in such
proceeds.
20.3 The Grantor acknowledges that this Agreement constitutes a Security
Agreement pursuant to the PPSA, and the Grantor agrees to the
following:
(a) the Secured Party can affect and maintain a Registration (in any
manner that it considers appropriate) of its Security Interest on the
PPSR in relation to any Security Interest contemplated or constituted
by this Agreement;
(b) the Grantor will:
(i) ensure that all serial numbers provided to the Secured Party in
relation to Serial Numbered Collateral are true and correct;
(ii) sign any document and/or provide any further information
(which information the Grantor warrants to be complete,
accurate and up-to-date in all respects) and/or assistance which
the Secured Party may reasonably require to enable perfection
of the Secured Party’s Security Interest or registration of a
Financing Statement or Financing Change Statement on the
PPSR, give effect to any Financing Statement, Financing Change
Statement, Amendment Demand and/or ensure any Security
Interest granted in favour of the Secured Party is continuously
perfected;
(iii) give the Secured Party no less than 14 days’ written notice of any
proposed change to the Grantor’s business name and/or any
other changes in the Grantor’s details (including but not limited
to, changes in their address, facsimile number, email address,
trading name or business activities);
(iv) indemnify the Secured Party against any costs the Secured Party
incurs in perfecting and maintaining its perfected Security
Interest and any costs the Secured Party may incur in the course
of enforcing its Security Interests or any of its rights under this
Agreement, the PPSA or at law generally;
(v) procure from any persons considered by the Secured Party to be
relevant to its security position, such agreement and waivers as
the Secured Party may at any time reasonably require.
(c) The Grantor waives its rights under section 157 of the PPSA to
receive a copy of any Verification Statement after the registration of
a Financing Statement or Financing Change Statement in respect of
the Security Interest created by this Agreement.
(d) The Secured Party does not need to give the Grantor any notice
under the PPSA (including a notice of a Verification Statement)
unless the notice is required by the PPSA and that requirement
cannot be excluded.
20.4 If Chapter 4 of the PPSA would otherwise apply to the enforcement of a
Security Interest arising in connection with this Agreement, the Grantor
agrees that the following provisions of the PPSA will not apply to the
enforcement of this Agreement:
(a) to the extent that s 115(1) allows this, that the following provisions
of the PPSA will not apply to the enforcement of that security
interest:
(i) s 95 (notice of removal of accession), to the extent that it requires
the secured party to give notice to the grantor;
(ii) s 96 (when a person with an interest in the whole may retain an
accession);
(iii) s 121(4) (enforcement of liquid assets — notice to grantor);
(iv) s 125 (obligation to dispose of or retain collateral);
(v) s 130 (notice of disposal), to the extent that it requires the
secured party to give a notice to the grantor;
(vi) s 132(3)(d) (contents of statement of account after disposal);
(vii) s 132(4) (statement of account if no disposal);
(viii) s 142 (redemption of collateral); and
(ix) s 143 (reinstatement of security agreement); and
(b) To the extent that s 115(7) allows this, that the following provisions
of the PPSA will not apply to the enforcement of that Security
Interest:
(i) s 127 (seizure by higher priority parties – notice);
(ii) s 129(2) and (3) (disposal by purchase);
(iii) s 132 (secured party to give statement of account);
(iv) s 134(2) (proposal of secured party to retain collateral);
(v) s 135 (notice of retention of collateral);
(vi) s 136(3), (4) and (5) (retaining collateral free of interest); and
(vii) s 137 (persons entitled to notice may object to proposal).
(c) Notices or documents required or permitted to be given to the
Secured Party for the purposes of the PPSA must be given in
accordance with the PPSA.
20.5 The Customer agrees that it must not do the following without prior
written consent from the SCP:
(a) create any Security Interest or lien over any of the Equipment
whatsoever (other than Security Interests granted in favour of SCP);
(b) sell, lease, or dispose of its interest in the Equipment;
(c) give possession of the Equipment to another person except where
SCP expressly authorises it to do so;
6
(d) permit any of the Equipment to become an accession to or be
commingled with any other asset;
(e) allow the Equipment to become affixed to any land; or
(f) detach, or procure the detachment of the Equipment from any land
or goods to which it becomes attached. - NOTICES
(a) Notices under this Agreement may be delivered to the parties by
mail, or email in accordance with the details in Schedule 1.
(b) Notice will be deemed given:
(i) in the case of posting, three days after dispatch; or
(ii) in the case of email, the date and time the email is sent from
the sender. - GENERAL
(a) Entire Agreement: This Agreement constitutes the entire agreement
between the parties with respect to its subject matter and supersedes
all other agreements or representations pertaining to the same.
(b) Variation: This Agreement may not be amended, modified, waived,
discharged or terminated verbally nor by implication. No variation
to this Agreement shall be valid unless in writing signed by each of
the parties.
(c) Severability: If any provision of this Agreement is, or at any time
becomes, prohibited by or unlawful under, any applicable law,
regulation or other condition actually applied or otherwise becomes
void or unenforceable, it will be severed and rendered ineffective so
far as is possible without modifying the remaining provisions of this
Agreement. The remaining provisions will, to the extent permitted
by law, continue in full force and effect.
(d) Wavier: No failure to exercise and no delay in exercising any right,
power or remedy under this Agreement will operate as a waiver, nor
will any single or partial exercise of any right, power or remedy
preclude any other or further exercise of that or any other right,
power or remedy.
(e) Assignment: SCP may assign any of its rights or obligations under this
Agreement without the consent of the Customer. The Customer must
not assign any of its rights or obligations under this Agreement
without the prior written consent of SCP.
(f) Subcontract: SCP may freely, and without requiring the consent or
prior knowledge of the Customer, subcontract, assign or outsource
any obligation under this Agreement including the supply of
Equipment.
(g) Jurisdiction: This Agreement is governed by the laws in force in
Western Australia from time to time. The parties submit to the nonexclusive
jurisdiction of the courts of Western Australia and waive
any rights for proceedings to be heard in any other jurisdiction.