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General Credit Terms & Conditions (Incorporating Hire Terms & Conditions)

  1. Payment: The Customer must pay for all Products supplied by RSEA Pty Ltd (“RSEA”) within 30 days from end of month in which the Products were invoiced by RSEA (“Due Date”).
  2. Interest: If payment is not received by RSEA on or before the Due Date, the Customer agrees to pay interest on all amounts owing and not paid by the Due Date at the interest rate equal to the interest rate prescribed by the Penalty Interest Rates Act 1983 from time to time plus 200 basis points. The interest will accrue from day to day on and from the Due Date to the date payment is made in full and will compound every 30 days. All payments received from the Customer shall be applied by RSEA first towards reduction of any interest owing and then in reduction of any principal amount on a first in first out basis.
  3. GST: Each amount payable by the Customer under these Terms in respect of a Taxable Supply by RSEA is a GST exclusive amount and the Customer must, in addition to that amount and at the same time, pay to RSEA the GST applicable in respect of that supply at the then prevailing GST rate. In this clause, “Taxable Supply” and “GST” have the meanings set out in the A New Tax System (Goods and Services) Act 1999.
  4. Property:
    1. Property in the Products does not pass until the Customer has paid all monies owing to RSEA in full. Risk in the Products passes to the Customer at the time of delivery.
    2. Until payment of all monies owed by the Customer or on the Customer’s account to RSEA, the Customer holds the Products as fiduciary bailee and agent for RSEA and must keep the Products physically separate from all other Products of the Customer, and not comingle the products with any other products and clearly identify the products as owned by RSEA.
    3. If an Event of Default occurs, then without prejudice to RSEA’s other rights, RSEA may without notice to the Customer enter any premises occupied by the Customer or any other place where the Products may be and recover possession of them. If the Customer sells any of the Products while any money is owed to RSEA, the Customer must keep the proceeds of the sale in a separate account and not mix them with any other funds and will hold such funds, whether mixed or otherwise, on trust for RSEA.
    4. If the Customer uses the Products in some manufacturing or construction process of its own or of some third party, then the Customer shall hold such part of the proceeds of such manufacturing or construction process as relates to the Products in trust for RSEA. Such part shall be deemed to equal in dollar terms the amount owing by the Customer to RSEA and at the time of payment of such proceeds, the Customer’s obligation to pay the amount owed for such Products will be discharged.
    5. If the Products are resold, or Products using or reselling the Products are manufactured and resold by the Customer, the Customer holds all of the book debts owed in respect of such sales and proceeds of such sales in trust for RSEA. Such part of the book debts and proceeds shall be deemed to equal in dollar terms the amount owed by the Customer to RSEA at the time of the receipt of such book debts.
    PPSA: Until all monies due and payable by the Customer to the Hirer have been paid:
    1. RSEA is and will be entitled at any time to demand the return of the Products and the Customer must do all things necessary to immediately permit RSEA, without notice and without liability to RSEA, to enter and access any premises occupied by the Customer in order to search for, locate, identify, retrieve and remove Products. If there is any inconsistency between the rights conferred under this clause 4 and Chapter 4 of the Personal Properties Securities Act 2009 (PPSA), this clause 4 prevails;
    2. to the extent that these Terms create a Security Interest for RSEA in the Products, the Customer acknowledges and agrees that RSEA has a Security Interest in the Equipment under the PPSA and that:
      1. the Customer will not grant or seek to grant any Security Interest in the Equipment adverse to the interest of RSEA;
      2. RSEA’s Security Interest secures all monies owing by the Customer under these Terms;
      3. RSEA’s Security Interest in the Products (and the proceeds) is a “purchase money security interest” (PMSI) under the PPSA to the extent that it secures payment; and
      4. RSEA’s Security Interest Attaches (as that term is defined in the PPSA) to Products when the Customer attains possession of the Products.
    3. the Customer agrees to provide all information and execute all documents necessary for RSEA to register and perfect its Security Interest in the Products under the PPSA and agrees that all fees in relation to registration including amendments to any registration are to be borne by the Customer.
    4. the Customer waives its right to receive any notice under the PPSA (including notice of a verification statement after registration or variation of a registration) unless a requirement for notice cannot be excluded under the PPSA.
  5. Acceptance of Products: The Customer is deemed to have accepted the Products as in accordance with an order unless it notifies RSEA in writing to the contrary within 10 days of receipt of the Products. Any returns will be processed in accordance with RSEA’s then current return policy as reproduced on the RSEA website (currently located here: delivery-and-returns)
  6. Out of Stock Products: If a Customer places an order for Products that are out of stock, RSEA will use its reasonable endeavours to deliver the Products to the Customer as soon as possible once the Products are received from RSEA’s supplier, if at all, unless the Customer notifies RSEA in the meantime that it no longer requires the Products. RSEA make no warranty that out of stock products will become available.
  7. Suspension or Ceasing Supply:
    1. RSEA may in its complete discretion and without incurring any liability to the Customer do any one of the following: cease or suspend supply of Products to the Customer; amend these Terms; prospectively vary the price of any Products or the terms on which those Products are supplied; and vary or withdraw any credit granted to the Customer.
    2. Without limiting clause 7 (a), if an Event of Default then RSEA may, without prejudice to its other rights, call up monies owed to it by the Customer, retain all monies paid on account, or cease further deliveries and recover from the Customer all direct, indirect or consequential losses arising there from, including loss of profits, and/or take immediate possession of any Products not paid for.
  8. Liability of RSEA: RSEA will not be liable for any loss or damage whatsoever suffered by the Customer as a result of any act, omission or statement made by RSEA, its employees, contractors or agents whether negligent or not, except that nothing in these Terms limits any liability imposed by any statute unless or to the maximum extent that it is lawful to do so.
  9. RSEA’s Conduct: RSEA’s acceptance of payment, or delay or failure to act, shall not prejudice its right to exercise any remedy against the Customer.
  10. Certification: A statement signed by an Officer certifying the amount of any moneys payable by the Customer or identifying any Products as “unpaid for” is, in the absence of fraud or manifest error, conclusive and binding on the Customer.
  11. Notification of Change of Details: Where any change takes places in the Customer’s trading structure or management, including any change of director, shareholder or any change in partnership or trusteeship notwithstanding any advice by the Customer to RSEA, the Customer shall not continue to operate its credit account without RSEA’s prior written consent and the Customer shall remain liable for all amounts owed to RSEA until the whole amount (including interest and charges) has been paid in full to RSEA.
  12. Variation of Terms: RSEA has the right to vary these Terms at any time by notice to the Customer and thereafter the varied Terms are binding on the Customer. If the Customer does not wish to be bound by the new Terms then it must immediately cease acquire products from RSEA on credit.
  13. Effect of Other Terms: These Terms are in no way affected by any other express or implied terms contained in any terms of sale or hire or purchase order issued by the Customer in relation to the sale or hire of the Products. No terms of the Customer apply to any agreement between the Customer and RSEA.
  14. Expenses: The Customer must pay to RSEA all costs, charges and expenses (including all stamp duty, bank charges and legal fees on a full indemnity basis) incurred by RSEA in connection with entry into these Terms, the exercise or attempted exercise of any power, right or remedy under these Terms, and the failure of the Customer to comply with these Terms.
  15. Set off: RSEA is entitled in its absolute discretion to set off any credits that may appear in the Customer’s account with RSEA against any other amounts owed by or debts of the Customer to RSEA (and to give effect to this, the Customer irrevocably appoints RSEA as the Customer’s attorney).
  16. Trusts: These Terms bind the Customer both personally and as trustee of any trusts of which the Customer is trustee.
  17. Severance: Each clause and subclause of these Terms are separate and independent. If any clause or subclause is found to be invalid or ineffective, the other clauses or subclauses will not be adversely affected.
  18. Transfer of Rights: RSEA can transfer its rights under these Terms to someone else. If RSEA does, these Terms will apply to the transferee as if it were RSEA. If RSEA wants to transfer its rights it can give the proposed transferee all information about the Customer and the Customer’s personnel, including the Customers directors that privacy legislation allows it to give.
  19. Application of Laws: The parties submit to the jurisdiction of the Courts of the State of Victoria.
  20. Definitions: In these Terms unless the context requires otherwise:
    1. “Customer” means each and every person or corporation to whom RSEA supplies Products under these Terms;
    2. “Event of Default” means any of the following events:
      1. the Customer fails to pay for the Products;
      2. the Customer is in breach of these Terms;
      3. if the Customer is a company: an order is made or a resolution is effectively passed for winding up of the Customer; the Customer resolves to appoint a receiver or provisional liquidator or an administrator, or a receiver or provisional liquidator or an administrator is appointed; the Customer goes into liquidation or makes an assignment or an arrangement or composition with its creditors; the Customer stops payment or is deemed unable to pay its debts within the meaning of the Corporations Act 2001; if the Customer is a natural person, an order is made for the Customer’s bankruptcy, or the Customer dies or becomes mentally or physically incapable of managing his or her affairs or an order is applied for or made to place the assets and affairs of the Customer under administration; the Customer ceases or threatens to cease carrying on business;
    3. “Officer” means each director, secretary, manager and authorised representative of RSEA;
    4. “Products” means all goods supplied by RSEA to the Customer; and
    5. “Terms” means these General Credit Terms and Conditions.

Conditions Of Hire

  1. DEFINITIONS In these Conditions unless the context requires otherwise:
    • “Conditions” means these conditions of hire.
    • “Equipment” means any item hired by the Hirer from the Owner.
    • “GST” means GST within the meaning of the GST Act.
    • “GST Act” means the A New Tax System (Goods and Services Tax) Act 1999 (Cth) and the related imposition Acts of the Commonwealth.
    • “Hirer” means the person or corporation specified on the face of the contract to whom the Owner hires the Equipment.
    • “Owner” means RSEA Pty Ltd (ABN 91 094 385 430).
  2. RATES
    All quoted rates and charges are valid for up to 30 days from the date of the quote for the Equipment and the hire period specified in the quotation. The quoted rates may change without notice thereafter except that any increases in rates and charges will not apply to orders already placed and paid for by the Hirer prior to the increase.
  3. PAYMENT
    • 3.1 If paying by cash, the Hirer must pay the Owner for the total quoted rates and charges in full prior to the date on which the Equipment is collected by or delivered to the Hirer.
    • 3.2 If the hire period of the Equipment is longer than one month, the Hirer must enter into a credit account with the Owner and pay the Owner each invoice in full within 30 days from invoice month end.
    • 3.3 Subject to clause 2, the Owner reserves the right to revise its rates and charges without notice to the Hirer.
    • 3.4 Hire rates cover the fee for hiring the Equipment only. If the Hirer requires the Equipment to be delivered, the Hirer must pay a charge for transporting the Equipment, including loading at the Owner’s premises and unloading at the required destination. Collection charges also apply if the Equipment is to be collected from the Hirer at the end of the hire period. Any other additional services provided by the Owner to the Hirer will be paid for by the Hirer at the Owner’s then applicable rates.
    • 3.5 The Owner may charge the Hirer a fee for accepting payment by a credit card in accordance with applicable laws
    • 3.6 The Owner may set-off against any credit owed to the Hirer any amount owing by the Hirer to the Owner.
  4. INTEREST
    • 4.1 The Owner may, in its absolute discretion, charge the Hirer interest on all amounts not paid by the due date at a rate equal to the interest rate prescribed by the Penalty Interest Rates Act 1983 from time to time plus two hundred basis points per annum from the due date until receipt of payment of the debt in full. Interest will accrue daily and compound every 30 days. The right to demand payment of interest under this clause is without prejudice to any other rights and remedies that the Owner may have in respect of a payment default under these Conditions or at common law.
    • 4.2 All payments received from the Hirer shall be applied by the Owner first towards reduction of any interest owing and then in reduction of any principal amount.
  5. COSTS AND EXPENSES
    The Hirer must pay to the Owner any costs, charges and expenses, including all fines, penalties, bank charges and legal fees on a full indemnity basis, incurred by the Owner in connection with the exercise or attempted exercise of any power, right or remedy under these Conditions or the failure of the Hirer to comply with these Conditions.
  6. TAXES AND DUTIES
    • 6.1 Except as otherwise provided at law, all hire duties, excise, goods and services and similar taxes or duties which the Owner may be required to pay or collect with respect to the Equipment or its supply to the Hirer shall be paid by the Hirer. Where the Hirer claims exemption from any tax or duty, the Hirer must furnish appropriate exemption certificates to the Owner.
    • 6.2 Stamp duty is charged on all hire costs excluding GST in accordance with applicable laws.
  7. GST
    For the purposes of this clause, expressions set out in italics have the same meaning as those expressions in the GST Act.
    • 7.1 To the extent that a party makes a taxable supply under or in connection with these Conditions except where express provision is made to the contrary, the consideration payable by a party under or in connection with these Conditions represents the value of the taxable supply for which payment is to be made and on which GST is to be calculated.
    • 7.2 If a party makes a taxable supply under or in connection with these Conditions for a consideration which, under clause 7.1, represents its value, then the party liable to pay for the taxable supply must also pay at the same time and in the same manner as the value is otherwise payable, the amount of any GST payable in respect of the taxable supply.
    • 7.3 Upon receipt of the consideration and GST payable, a valid tax invoice will be delivered to the party which paid that sum within 7 days of payment.
  8. NOTIFICATION OF CHANGE OF DETAILS
    The Hirer will notify the Owner in writing of any change in its structure or management, including any change of director, shareholder, unitholder or any change in partnership or trusteeship within 7 days of the date of change. Until the Hirer notifies the Owner of the change, the Hirer remains liable for and hereby indemnifies the Owner for all Equipment delivered to the Hirer pursuant to these Conditions.
  9. RIGHTS IN EQUIPMENT
    • 9.1 Title to any Equipment does not pass from the Owner to the Hirer.
    • 9.2 All risk in the Equipment passes to the Hirer at the time of delivery.
    • 9.3 The Hirer must keep the Equipment safely stored and physically separate from all other Equipment of the Hirer and clearly identified as owned by the Owner.
    • 9.4 The Owner may inspect the Equipment from time to time during the hire period and the Hirer will permit or procure admission for representatives of the Owner to the premises upon which the Equipment is situated for that purpose.
    • 9.5 Without limiting clause 21.1, if the Hirer fails to pay any amount on or before the due date, the Owner may without notice to the Hirer enter any premises occupied by the Hirer or any other place where the Equipment may be and recover possession of the Equipment. If, in breach of these Conditions, the Hirer sells any of the Equipment, the Hirer must keep the proceeds of sale in a separate account free from any other funds on trust for the Owner.
    • 9.6 Until all monies due and payable by the Hirer to the Owner have been paid:
      • 9.6.1 the Owner is and will be entitled at any time to demand the return of the Equipment and the Hirer must do all things necessary to immediately permit the Owner, without notice and without liability to the Owner, to enter and access any premises occupied by the Hirer in order to search for, locate, identify, retrieve and remove Equipment. If there is any inconsistency between the rights conferred under this clause 9.6.1 and Chapter 4 of the Personal Properties Securities Act 2009 (PPSA), this clause 9.6.1 prevails;
      • 9.6.2 to the extent that the terms of these Conditions create a Security Interest for the Owner in the Equipment, the Hirer acknowledges and agrees that the Owner has a Security Interest in the Equipment under the PPSA and that:
        1. the Hirer will not grant or seek to grant any Security Interest in the Equipment adverse to the interest of the Owner;
        2. The Owner’s Security Interest secures all monies owing by the Hirer under these Conditions;
        3. The Owner’s Security Interest in the Equipment (and the proceeds) is a “purchase money security interest” (PMSI) under the PPSA to the extent that it secures payment; and
        4. The Owner’s Security Interest Attaches (as that term is defined in the PPSA) to Equipment when the Hirer attains possession of the Equipment.
    • 9.7 The Hirer agrees to provide all information and execute all documents necessary for the Owner to register and perfect its Security Interest in the Equipment under the PPSA and agrees that all fees in relation to registration including amendments to any registration are to be borne by the Hirer.
    • 9.8 The Hirer waives its right to receive any notice under the PPSA (including notice of a verification statement after registration or variation of a registration) unless a requirement for notice cannot be excluded under the PPSA.
  10. PERIOD OF HIRE
    • 10.1 Hire is charged whilst the Equipment is out of the possession of the Owner and is based on either a minimum of 8 hours per day (if charged by the hour) or 1 day (if charged daily). The Owner may charge an additional fee for any hire period in excess of 8 hours per day.
    • 10.2 The minimum hiring period for Equipment may vary from item to item.
  11. HIRER CLAIMS
    • 11.1 Claims relating to the quality or suitability of the Equipment and/or ancillary services provided (including any missing or damaged items) must be made within 48 hours of the Hirer receiving the Equipment or the Equipment is deemed to be in order in all respects.
    • 11.2 If a claim is notified by the Hirer in accordance with clause 11.1, the Owner will use its reasonable endeavours to repair or replace the Equipment that is reported to be faulty, unsuitable or damaged or supply any missing items as soon are reasonably practicable during business days (excluding weekends and public holidays).
    • 11.3 The Owner is not responsible for any cost, loss, expense or damage (including without limitation loss of profits or consequential loss) incurred by the Hirer if the Hirer does not comply with clause 11.1.
  12. THIRD PARTIES
    During the period of hire pursuant to clause 10, the Hirer must not part possession with the Equipment nor sell, assign, gift, lend, hire, mortgage, charge, encumber or otherwise transfer the Equipment or the benefit of these Conditions to any third party whatsoever.
  13. ORDERS, CANCELLATIONS AND DELIVERY
    • 13.1 Orders must be received not less than 24 hours prior to the time on which the Equipment is collected by or delivered to the Hirer (Hire Time) unless otherwise agreed by the Owner.
    • 13.2 New orders or changes to existing orders placed within 24 hours of the Hire Time may be subject to an additional fee.
    • 13.3 All orders cancelled within 24 hours of the Hire Time but prior to collection or delivery of the Equipment will be charged at a minimum of half the collection rate plus other applicable charges at the sole discretion of the Owner.
    • 13.4 If the Owner delivers the Equipment, the Hirer will provide the Owner with a reasonable period to safely unload the Equipment in a suitable area immediately on arrival at the delivery destination and will assist the Owner if required.
    • 13.5 The Owner makes no representation and gives no warranty that the Equipment will be available at the Hire Time if the Equipment has not been returned to the Owner by other customers at the time the order is made by the Hirer.
  14. THE HIRER’S COMPLIANCE AND ACCESS
    The Hirer will:
    • 14.1 use the Equipment only for the purpose for which it is designed and will not remove, obscure or otherwise interfere with any identifying mark, plate or number on or in the Equipment;
    • 14.2 (where applicable) clean, fuel and lubricate the Equipment and maintain the Equipment in good repair and condition in each case at the Hirer’s expense;
    • 14.3 clean the Equipment thoroughly upon completion of hire and if the Hirer fails to do so, the Owner may charge the Hirer a cleaning fee at the Owner’s then applicable rate;
    • 14.4 where the Equipment requires fuel and/or other consumables, upon completion of hire, return the item with a full tank of fuel and/or replace any used consumables and if the Hirer fails to do so, the Hirer will be charged a fee at the Owner’s then applicable rate in addition to the cost of filling the tank and/or replacing the consumables;
    • 14.5 accept full responsibility for the safe-keeping of the Equipment during the hire period;
    • 14.6 return the Equipment to the Owner at the conclusion of the hire period;
    • 14.7 not be entitled to claim any lien over the Equipment or sell, transfer, assign, mortgage, charge or encumber in any way the Equipment;
    • 14.8 comply with all laws and regulations (including in relation to road traffic and health and safety) in relation to the Equipment and its operation; and
    • 14.9 procure that its employees, contractors and personnel comply with the Owner’s reasonable requirements and instructions in respect of the Equipment.
  15. LIABILITY
    • 15.1 The Owner is not liable for any loss or damage whatsoever suffered by the Hirer, including as a result of any act, omission or statement made by the Owner, its employees, contractors or agents whether negligent or not, except that nothing in these Conditions limits any liability imposed by any statute unless and to the extent that it is lawful to do so.
    • 15.2 The Hirer accepts that the Owner gives no warranty that the Equipment is suitable for the Hirer’s purpose.
    • 15.3 In this clause 15, Australian Consumer Law means the Australian Consumer Law set out in Schedule 2 to the Competition and Consumer Act 2010 (Cth) as amended or replaced from time to time.
    • 15.4 To the extent that the Hirer acquires goods or services from the Owner as a consumer within the meaning of the Australian Consumer Law, Hirer may have certain rights and remedies (including, without limitation, consumer guarantee rights) that cannot be excluded, restricted or modified by agreement.
    • 15.5 Nothing in this clause 15 operates to exclude, restrict or modify the application of any implied condition or warranty, provision, the exercise of any right or remedy, or the imposition of any liability under the Australian Consumer Law or any other statute where to do so would contravene that statute or cause any term of this agreement to be void (Non-excludable Obligation).
    • 15.6 Except in relation to Non-excludable Obligations, all conditions, warranties, guarantees, rights, remedies, liabilities or other terms that may be implied by custom, under the general law or by statute are expressly excluded under this agreement.
    • 15.7 Limitation of liability
      • 15.7.1 Except in relation to Non-excludable Obligations, and despite any other provision of this Agreement, Owner’s liability to Hirer arising directly or indirectly under or in connection with this Agreement or the performance or non-performance of this Agreement and whether arising under any indemnity, statute, in tort (for negligence or otherwise), or on any other basis in law or equity is limited as follows:
        1. Owner excludes all liability for loss of revenue, loss of goodwill, loss of customers, loss of capital, downtime costs, loss of profit, loss of or damage to reputation, loss under or in relation to any other contract, loss of data, loss of use of data, loss of anticipated savings or benefits, or any indirect, consequential or special loss, damage, cost or expense or other claims for consequential compensation, incurred by or awarded against Hirer under or in any way connected with this Agreement or the provision of the Equipment, Software or Services for the avoidance of doubt loss of data or loss of use of data are not excluded hereunder; and
        2. (subject to paragraph (i)) Owner’s total aggregate liability under or in any way connected with this Agreement or the provision of the Equipment, Software or Services is limited to an amount equal to twice the amounts paid or payable by Hirer to Owner under this Agreement.
      • 15.7.2 In relation to Non-excludable Obligations (other than a guarantee as to title, encumbrances or quiet possession conferred by the Australian Consumer Law), except for goods or services of a kind ordinarily acquired for personal, domestic or household use or consumption (in respect of which Owner’s liability is not limited under this Agreement), Owner liability to Hirer for a failure to comply with any Non-excludable Obligation is limited to:
        1. in the case of services, the cost of supplying the services again or payment of the cost of having the services supplied again; and
        2. in the case of goods, the cost of replacing the goods, supplying equivalent goods or having the goods repaired, or payment of the cost of replacing the goods, supplying equivalent goods or having the goods repaired.
    • 15.8 Subject to clause 17, the Hirer indemnifies the Owner for all loss, theft or damage to the Equipment however caused whether or not such loss, theft or damage is attributable to any negligent, reckless or wilful act, failure or omission of the Hirer.
  16. INSURANCE
    The Hirer, at its own expense, will take out and maintain all appropriate and prudent policies of insurance for the duration of the hire period and provide the Owner with a copy of such insurance policies upon request including:
    • 16.1 for damage to or arising out of the hire of Equipment in an amount not less than the full new replacement cost of the Equipment except where the Hirer has taken the benefit of damage waiver cover in accordance with clause 17; and
    • 16.2 for all third party public liability risks in respect of the hire or use of the Equipment by the Hirer in an amount not less than $5 million.
  17. DAMAGE WAIVER
    • 17.1 If the Equipment is damaged and the Hirer has purchased damage waiver cover, the Owner agrees to waive its rights to claim against the Hirer except that the Hirer is liable to pay an excess to the Owner of $500.00 or 20% of the value of the replacement cost of the Equipment, whichever is the greater.
    • 17.2 The decision as to whether an item of Equipment is to be replaced or repaired is at the sole discretion of the Owner.
    • 17.3 Damage waiver will not apply unless the Hirer is able to establish to the reasonable satisfaction of the Owner that none of the exclusions in clause 18 applies.
  18. DAMAGE WAIVER EXCLUSIONS
    Damage waiver will not apply if the loss or damage is caused by:
    • 18.1 physical loss of the Equipment;
    • 18.2 theft of the Equipment;
    • 18.3 misuse, abuse or overloading of the Equipment;
    • 18.4 wrongful conversion of the Equipment;
    • 18.5 a contravention of these Conditions;
    • 18.6 use of the Equipment in violation of any laws and regulations or contrary to any instructions for use of the Equipment;
    • 18.7 a lack of proper maintenance or care whilst the Equipment is in possession of the Hirer;
    • 18.8 transporting the Equipment to or by the Hirer, including during loading and unloading;
    • 18.9 electrical faults;
    • 18.10 events for which the Hirer has accepted liability;
    • 18.11 the negligent, reckless or wilful conduct of the Hirer; or
    • 18.12 a vehicle.
    The Hirer will provide the Owner with all the information requested by the Owner for the purpose of establishing whether one of the exclusions in this clause 18 applies.
  19. FORCE MAJEURE
    The Owner is not responsible for any delay in delivery or failure to deliver the Equipment or for any breach of these Conditions due to causes beyond its control including but not limited to acts of God, war, terrorism, mobilisation, civil commotion, riots, embargoes, orders or regulations of governments of any relevant jurisdiction, fires, floods, strikes, lockouts or other labour difficulties, shortages of or inability to obtain storage or transportation.
  20. SUB-CONTRACTING
    The Owner may sub-contract to any suitably qualified person and on any terms, the performance of part or all of the services to be provided to the Hirer.
  21. TERMINATION
    The Owner may terminate these Conditions:
    • 21.1 if the Hirer fails to pay any amount payable to the Owner on or before the due date;
    • 21.2 if (a) the Hirer is a company and an order is made or a resolution is effectively passed for winding up of the Hirer; the Hirer resolves to appoint a receiver or provisional liquidator or an administrator, or a receiver or provisional liquidator or an administrator is appointed; (b) the Hirer goes into liquidation or makes an assignment or an arrangement or composition with its creditors; or (c) the Hirer stops payment or is deemed unable to pay its debts within the meaning of the Corporations Act 2001 (Cth);
    • 21.3 if (a) the Hirer is a natural person and an order is made for the Hirer’s bankruptcy, or the Hirer dies or becomes mentally or physically incapable of managing his or her affairs or an order is applied for or made to place the assets and affairs of the Hirer under administration; or (b) the Hirer ceases or threatens to cease carrying on business;
    • 21.4 if the Hirer commits any breach of these Conditions; or
    • 21.5 without cause upon giving the Hirer 48 hours notice.
  22. DISPUTE RESOLUTION
    • 22.1 A party must not start arbitration or court proceedings (except proceedings seeking injunctive, declaratory or interlocutory relief or relating to debt recovery) in respect of a dispute arising out of these Conditions (Dispute) unless it has complied with this clause.
    • 22.2 A party claiming that a Dispute has arisen must notify the other party, giving details of the Dispute.
    • 22.3 During the 30 day period after a notice is given under clause 22.2 (or such longer period agreed in writing by the parties) (Initial Period) each party (Disputant) must use its best efforts to resolve the Dispute in good faith.
    • 22.4 If the Disputants are unable to resolve the Dispute within the Initial Period, each Disputant agrees that the Dispute must be referred for mediation, at the request of either Disputant, to:
      • 22.4.1 a mediator agreed on by the Disputants; or
      • 22.4.2 if the Disputants are unable to agree on a mediator within 7 days after the end of the Initial Period, a mediator nominated by the then current President of the Law Institute of the applicable State or Territory under clause 25.4 or the President’s nominee (a copy of this Agreement constitutes proof of the party’s agreement to respect his or her nomination).
    • 22.5 The role of any mediator is to assist in negotiating a resolution of the Dispute. A mediator may not make a decision that is binding on a Disputant unless that Disputant has so agreed in writing.
    • 22.6 Any information or documents disclosed by a Disputant under this clause 22 must be kept confidential, are provided on a without prejudice basis and not be used except to attempt to resolve the Dispute.
    • 22.7 Each Disputant must bear its own costs of complying with this clause and the Disputants must bear equally the costs of any mediator engaged.
    • 22.9 The Owner reserves the right to charge the Hirer the current rates (and any interest accrued in accordance with clause 4) for the period of time the parties are in Dispute if the Hirer has retained possession of the Equipment during the period of the Dispute.
  23. EFFECT OF OTHER CONDITIONS
    These Conditions are in no way affected by any other express or implied terms contained in any order, terms, or other document issued in relation to the Equipment. No terms of the Hirer apply to any agreement between the Owner and the Hirer where inconsistent with these Conditions.
  24. PRIVACY
    The Owner may use any personal information provided by the Hirer, including the personal information of directors, shareholders, managers and employees of the Hirer, for credit, administration, service and marketing purposes. If the Hirer does not provide this information, the Owner may not be able to hire the Equipment to the Hirer. The Hirer has a right of access to, and may request correction of, any personal information held by the Owner about the Hirer.
  25. MISCELLANEOUS
    • 25.1 Each clause and subclause of these Conditions is separate and independent. If any clause or subclause is found to be invalid or ineffective, the other clauses or subclauses will not be adversely affected.
    • 25.2 Time is of the essence in respect of all the Hirer’s obligations under these Conditions.
    • 25.3 No failure to exercise nor any delay in exercising any right, power or remedy by the Owner operates as a waiver. A single or partial exercise of any right, power or remedy does not preclude any other or further exercise of that or any other right, power or remedy. A waiver is not valid or binding on the party granting that waiver unless made in writing.
    • 25.4 These Conditions are governed by the laws of Victoria in which the Equipment is hired and the parties submit to the jurisdiction of the courts of that State and the courts of appeal therefrom.
    • 25.5 The Hirer warrants that in agreeing to these Conditions the person signing the document has the authority of the Hirer to do so and is empowered by the Hirer to bind the Hirer to these Conditions and hereby indemnifies the Owner against all losses, costs and claims incurred by the Owner arising out of the person so signing these Conditions not having such power and/or authority.
    • 25.6 The Owner may in its complete discretion and without incurring any liability to the Hirer amend these Conditions.
    • 25.7 These Conditions constitute the whole agreement made between the Owner and the Hirer and no officer, servant or agent of the Hirer has any authority to vary, add to or omit any of the terms or conditions hereof.
    • 25.8 These Conditions bind the Hirer in its personal capacity and as trustee of any trust.