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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).
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:

    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.
    In this Agreement, unless the context otherwise requires:
    (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;
    (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.
    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.
    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;
    (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.
    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.
    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.
    (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
    (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
    (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.
    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
    (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.
    (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
    (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;
    (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,
    special or consequential losses suffered by the Customer in relation
    to this Agreement or the Equipment.
  10. 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.
    (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
    (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.
    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.
    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.
    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.
    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
  16. 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.
    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).
    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
    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.
    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.
    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
    (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.
  20. 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
    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
    20.3 The Grantor acknowledges that this Agreement constitutes a Security
    Agreement pursuant to the PPSA, and the Grantor agrees to the
    (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
    (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
    (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
    (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
    (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;
    (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.
    (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.
    (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
    (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.