Terms of Trade.
1.1 “Equipcon” means Equipcon Pty Ltd, its successors and assigns or any person acting on behalf of and with the authority of Equipcon Pty Ltd.
1.2 “Client” means the person/s or any person acting on behalf of and with the authority of the Client requesting Equipcon to provide the Goods (for hire and/or purchase) as specified in any proposal, quotation, order, invoice or other documentation, and:
(a) if there is more than one Client, is a reference to each Client jointly and severally; and
(b) if the Client is a partnership, it shall bind each partner jointly and severally; and
(c) if the Client is a part of a Trust, shall be bound in their capacity as a trustee; and
(d) includes the Client’s executors, administrators, successors and permitted assigns.
1.3 “Goods” means all Goods supplied either for sale or for hire (including any accessories) to the Client by Equipcon, at the Client’s request from time to time (where the context so permits the terms ‘Goods’ or ‘Services’ shall be interchangeable for the other).
1.4 “Minimum Hire Period” means the Minimum Hire Period as described on the invoices, quotation, authority to hire, or any other forms as provided by Equipcon to the Client.
1.5 “Confidential Information” means information of a confidential nature whether oral, written or in electronic form including, but not limited to, this contract, either party’s intellectual property, operational information, know-how, trade secrets, financial and commercial affairs, contracts, client information (including but not limited to, “Personal Information” such as: name, address, D.O.B, occupation, driver’s license details, electronic contact (email, Facebook or Twitter details), medical insurance details or next of kin and other contact information (where applicable), previous credit applications, credit history) and pricing details.
1.6 “Cookies” means small files which are stored on a user’s computer. They are designed to hold a modest amount of data (including Personal Information) specific to a particular client and website, and can be accessed either by the web server or the client’s computer. If the Client does not wish to allow Cookies to operate in the background when ordering from the website, then the Client shall have the right to enable/disable the Cookies first by selecting the option to enable/disable provided on the website, prior to ordering Goods via the website.
1.7 “Charges” means the Charges payable (plus any GST where applicable) for the hire (or purchase) of the Goods as agreed between Equipcon and the Client in accordance with clause 5
1.8 “GST” means Goods and Services Tax (GST) as defined within the “A New Tax System (Goods and Services Tax) Act 1999” Cth.
2.1 The Client is taken to have exclusively accepted and is immediately bound, jointly and severally, by these terms and conditions if the Client places an order for or accepts Delivery of the Goods.
2.2 These terms and conditions may only be amended with the consent of both parties in writing, and shall prevail to the extent of any inconsistency with any other document or agreement between the Client and Equipcon.
2.3 Electronic signatures shall be deemed to be accepted by either party providing that the parties have complied with Section 9 of the Electronic Transactions (Victoria) Act 2000 or any other applicable provisions of that Act or any Regulations referred to in that Act.
3. Errors and Omissions
3.1 The Client acknowledges and accepts that Equipcon shall, without prejudice, accept no liability in respect of any alleged or actual error(s) and/or omission(s):
(a) resulting from an inadvertent mistake made by Equipcon in the formation and/or administration of this contract; and/or
(b) contained in/omitted from any literature (hard copy and/or electronic) supplied by Equipcon in respect of the Services.
3.2 In the event such an error and/or omission occurs in accordance with clause 1, and is not attributable to the negligence and/or wilful misconduct of Equipcon; the Client shall not be entitled to treat this contract as repudiated nor render it invalid.
4. Change in Control
4.1 The Client shall give Equipcon not less than fourteen (14) days prior written notice of any proposed change of ownership of the Client and/or any other change in the Client’s details (including but not limited to, changes in the Client’s name, address, contact phone or fax number/s, change in trustees, or business practice). The Client shall be liable for any loss incurred by Equipcon as a result of the Client’s failure to comply with this clause.
5. Charges and Payment
5.1 At Equipcon’s sole discretion the Charges shall be either:
(a) as indicated on any invoice provided by Equipcon to the Client; or
(b) Equipcon’s quoted price (subject to clause 2) which will be valid for the period stated in the quotation or otherwise for a period of thirty (30) days.
5.2 Equipcon reserves the right to change the Charges in the event of a variation to Equipcon’s quotation. Any variation from the plan of scheduled services or specifications of the Goods (including, but not limited to, any variation as a result of limitations to accessing the site, availability of machinery, unauthorised extension to agreed hire period, safety considerations, stock availability, repair costs that result in increases to Equipcon in the cost of taxes, levies, materials and labour) will be charged for on the basis of Equipcon’s quotation and will be shown as variations on the invoice. The Client shall be required to respond to any variation submitted by Equipcon within ten (10) working days. Failure to do so will entitle Equipcon to add the cost of the variation to the Price. Payment for all variations must be made in full at the time of their completion.
5.3 At Equipcon’s sole discretion, a non-refundable deposit may be required.
5.4 Time for payment for the Goods being of the essence, the Charges will be payable by the Client on the date/s determined by Equipcon, which may be:
(a) on Delivery of the Goods;
(b) before Delivery of the Goods;
(c) by way of instalments/progress payments in accordance with Equipcon’s payment schedule;
(d) the date specified on any invoice or other form as being the date for payment; or
(e) failing any notice to the contrary, the date which is seven (7) days following the date of any invoice given to the Client by Equipcon.
5.5 Payment may be made by cheque, bank cheque, electronic/on-line banking, credit card (a surcharge may apply per transaction), or by any other method as agreed to between the Client and Equipcon.
5.6 The Client shall not be entitled to set off against, or deduct from the Charges, any sums owed or claimed to be owed to the Client by Equipcon nor to withhold payment of any invoice because part of that invoice is in dispute.
5.7 Unless otherwise stated the Charges does not include GST. In addition to the Charges the Client must pay to Equipcon an amount equal to any GST Equipcon must pay for any supply by Equipcon under this or any other agreement for the sale/hire of the Goods. The Client must pay GST, without deduction or set off of any other amounts, at the same time and on the same basis as the Client pays the Charges. In addition the Client must pay any other taxes and duties that may be applicable in addition to the Charges except where they are expressly included in the Charges.
6.1 Delivery (“Delivery”) of the Goods are taken to occur at the time that the Goods depart from Equipcon’s premises, regardless of whether the Client or Equipcon arranges transportation.
6.2 At Equipcon’s sole discretion, the cost of Delivery is either included in the Charges or is in addition to the Charges.
6.3 Equipcon may deliver the Goods in separate instalments. Each separate instalment shall be invoiced and paid in accordance with the provisions in these terms and conditions.
6.4 Any time specified by Equipcon for Delivery of the Goods is an estimate only and Equipcon will not be liable for any loss or damage incurred by the Client as a result of Delivery being late. However both parties agree that they shall make every endeavour to enable the Goods to be delivered at the time and place as was arranged between both parties. In the event that Equipcon is unable to supply the Goods as agreed solely due to any action or inaction of the Client, then Equipcon shall be entitled to charge a reasonable fee for redelivery and/or storage.
7.1 Where this is a hire agreement:
(a) the Goods are and will at all times remain the absolute property of Equipcon, however the Client accepts full responsibility for:
(i) the safekeeping of the Goods and indemnifies Equipcon for all loss, theft, or damage to the Goods howsoever caused and without limiting the generality of the foregoing whether or not such loss, theft, or damage is attributable to any negligence, failure, or omission of the Client; and
(ii) shall keep Equipcon indemnified against all liability in respect of all actions, proceedings, claims, damages, costs and expenses in respect of any injury to persons, damage to property, or otherwise arising out of the use of the Goods during the hire period and whether or not arising from any negligence, failure or omission of the Client or any other persons.
Furthermore, the Client will insure, or self-insure, Equipcon’s interest in the Goods against physical loss or damage including, but not limited to, the perils of accident, fire, theft and burglary and all other usual risks and will effect adequate Public Liability Insurance covering any loss, damage or injury to property arising out of the Goods. Further the Client will not use the Goods nor permit it to be used in such a manner as would permit an insurer to decline any claim.
(b) The Client is not authorised to pledge Equipcon’s credit for repairs to the Goods or to create a lien over the Goods in respect of any repairs.
7.2 Where is this an agreement for the purchase of the Goods:
(a) Equipcon and the Client agree that ownership of the Goods shall not pass until:
(i) the Client has paid Equipcon all amounts owing to Equipcon; and
(ii) the Client has met all of its other obligations to Equipcon.
(b) Receipt by Equipcon of any form of payment other than cash shall not be deemed to be payment until that form of payment has been honoured, cleared or recognised.
(c) It is further agreed that, until ownership of the Goods passes to the Client in accordance with clause (a):
(i) the Client is only a bailee of the Goods and must return the Goods to Equipcon on request.
(ii) the Client holds the benefit of the Client’s insurance of the Goods on trust for Equipcon and must pay to Equipcon the proceeds of any insurance in the event of the Goods being lost, damaged or destroyed.
(iii) the Client must not sell, dispose, or otherwise part with possession of the Goods other than in the ordinary course of business and for market value. If the Client sells, disposes or parts with possession of the Goods then the Client must hold the proceeds of any such act on trust for Equipcon and must pay or deliver the proceeds to Equipcon on demand.
(iv) the Client should not convert or process the Goods or intermix them with other goods but if the Client does so then the Client holds the resulting product on trust for the benefit of Equipcon and must sell, dispose of or return the resulting product to Equipcon as it so directs.
(v) the Client irrevocably authorises Equipcon to enter any premises where Equipcon believes the Goods are kept and recover possession of the Goods.
(vi) Equipcon may recover possession of any Goods in transit whether or not Delivery has occurred.
(vii) the Client shall not charge or grant an encumbrance over the Goods nor grant nor otherwise give away any interest in the Goods while they remain the property of Equipcon.
(viii) Equipcon may commence proceedings to recover the Charges notwithstanding that ownership of the Goods has not passed to the Client.
7.3 If the Client fails to return the Goods to Equipcon then Equipcon or Equipcon’s agent may (as the invitee of the Client) enter upon and into land and premises owned, occupied or used by the Client, or any premises where the Goods are situated and take possession of the Goods, without being responsible for any damage thereby caused.
8. Personal Property Security Act 2009 (PPSA)
8.1 In this clause financing statement, financing change statement, security agreement, and security interest has the meaning given to it by the PPS
8.2 Upon assenting to these terms and conditions in writing the Client acknowledges and agrees that these terms and conditions constitute a security agreement for the purposes of the PPSA and creates a security interest in all Goods that has previously been supplied and that will be supplied in the future by Equipcon to the Client.
8.3 The Client undertakes to:
(a) promptly sign any further documents and/or provide any further information (such information to be complete, accurate and up-to-date in all respects) which Equipcon may reasonably require to;
(i) register a financing statement or financing change statement in relation to a security interest on the Personal Property Securities Register;
(ii) register any other document required to be registered by the PPSA; or
(iii) correct a defect in a statement referred to in clause 3(a)(i) or 8.3(a)(ii);
(b) indemnify, and upon demand reimburse, Equipcon for all expenses incurred in registering a financing statement or financing change statement on the Personal Property Securities Register established by the PPSA or releasing any Goods charged thereby;
(c) not register a financing change statement in respect of a security interest without the prior written consent of Equipcon;
(d) not register, or permit to be registered, a financing statement or a financing change statement in relation to the Goods in favour of a third party without the prior written consent of Equipcon;
(e) immediately advise Equipcon of any material change in its business practices of selling Goods which would result in a change in the nature of proceeds derived from such sales.
8.4 Equipcon and the Client agree that sections 96, 115 and 125 of the PPSA do not apply to the security agreement created by these terms and conditions.
8.5 The Client waives their rights to receive notices under sections 95, 118, 121(4), 130, 132(3)(d) and 132(4) of the PPSA.
8.6 The Client waives their rights as a grantor and/or a debtor under sections 142 and 143 of the PPSA.
8.7 Unless otherwise agreed to in writing by Equipcon, the Client waives their right to receive a verification statement in accordance with section 157 of the PPSA.
8.8 The Client must unconditionally ratify any actions taken by Equipcon under clauses 3 to
8.9 Subject to any express provisions to the contrary (including those contained in this clause 8, nothing in these terms and conditions is intended to have the effect of contracting out of any of the provisions of the PPSA.
9. Security and Charge
9.1 In consideration of Equipcon agreeing to supply the Goods, the Client charges all of its rights, title and interest (whether joint or several) in any land, realty or other assets capable of being charged, owned by the Client either now or in the future, to secure the performance by the Client of its obligations under these terms and conditions (including, but not limited to, the payment of any money).
9.2 The Client indemnifies Equipcon from and against all Equipcon’s costs and disbursements including legal costs on a solicitor and own client basis incurred in exercising Equipcon’s rights under this clause.
9.3 The Client irrevocably appoints Equipcon and each director of Equipcon as the Client’s true and lawful attorney/s to perform all necessary acts to give effect to the provisions of this clause 9 including, but not limited to, signing any document on the Client’s behalf.
10. Defects, Warranties and Returns, Competition and Consumer Act 2010 (CCA)
10.1 The Client must inspect the Goods on Delivery and must within seven (7) days of Delivery notify Equipcon in writing of any evident defect/damage, shortage in quantity, or failure to comply with the description or quote. The Client must notify any other alleged defect in the Goods as soon as reasonably possible after any such defect becomes evident. Upon such notification the Client must allow Equipcon to inspect the Goods.
10.2 Under applicable State, Territory and Commonwealth Law (including, without limitation the CCA), certain statutory implied guarantees and warranties (including, without limitation the statutory guarantees under the CCA) may be implied into these terms and conditions (Non-Excluded Guarantees).
10.3 Equipcon acknowledges that nothing in these terms and conditions purports to modify or exclude the Non-Excluded Guarantees.
10.4 Except as expressly set out in these terms and conditions or in respect of the Non-Excluded Guarantees, Equipcon makes no warranties or other representations under these terms and conditions including but not limited to the quality or suitability of the Goods. Equipcon’s liability in respect of these warranties is limited to the fullest extent permitted by law.
10.5 If the Client is a consumer within the meaning of the CCA, Equipcon’s liability is limited to the extent permitted by section 64A of Schedule 2.
10.6 If Equipcon is required to replace the Goods under this clause or the CCA, but is unable to do so, Equipcon may refund any money the Client has paid for the Goods.
10.7 If the Client is not a consumer within the meaning of the CCA, Equipcon’s liability for any defect or damage in the Goods are:
(a) limited to the value of any express warranty or warranty card provided to the Client by Equipcon at Equipcon’s sole discretion;
(b) limited to any warranty to which Equipcon is entitled, if Equipcon did not manufacture the Goods;
(c) otherwise negated absolutely.
10.8 Subject to this clause 10, returns will only be accepted provided that:
(a) the Client has complied with the provisions of clause 1; and
(b) Equipcon has agreed that the Goods are defective; and
(c) the Goods are returned within a reasonable time at the Client’s cost (if that cost is not significant); and
(d) the Goods are returned in as close a condition to that in which they were delivered as is possible.
10.9 Notwithstanding clauses 1 to 10.8 but subject to the CCA, Equipcon shall not be liable for any defect or damage which may be caused or partly caused by or arise as a result of:
(a) the Client failing to properly maintain or store the Goods;
(b) the Client using the Goods for any purpose other than that for which they were designed;
(c) the Client continuing the use of the Goods after any defect became apparent or should have become apparent to a reasonably prudent operator or user;
(d) the Client failing to follow any instructions or guidelines provided by Equipcon;
(e) fair wear and tear, any accident, or act of God.
10.10 In the case of second hand Goods, unless the Client is a consumer under the CCA, the Client acknowledges that it has had full opportunity to inspect the second hand Goods prior to Delivery and accepts them with all faults and that to the extent permitted by law no warranty is given by Equipcon as to the quality or suitability for any purpose and any implied warranty, statutory or otherwise, is expressly excluded. The Client acknowledges and agrees that Equipcon has agreed to provide the Client with the second hand Goods and calculated the Charges of the second hand Goods in reliance of this clause 10.
10.11 Equipcon may in its absolute discretion accept non-defective Goods for return in which case Equipcon may require the Client to pay handling fees of up to twenty percent (20%) of the value of the returned Goods plus any freight costs.
10.12 Notwithstanding anything contained in this clause if Equipcon is required by a law to accept a return then Equipcon will only accept a return on the conditions imposed by that law.
10.13 If the client provides the parts for work to be done, all warranty is voided for any of the works carried out. Equipcon will not warrant any work done with parts provided from the client.
11. Intellectual Property
11.1 Where Equipcon has designed, drawn or developed Goods for the Client, then the copyright in any designs and drawings and documents shall remain the property of Equipcon. Under no circumstances may such designs, drawings and documents be used without the express written approval of Equipcon.
11.2 The Client warrants that all designs, specifications or instructions given to Equipcon will not cause Equipcon to infringe any patent, registered design or trademark in the execution of the Client’s order and the Client agrees to indemnify Equipcon against any action taken by a third party against Equipcon in respect of any such infringement.
11.3 The Client agrees that Equipcon may (at no cost) use for the purposes of marketing or entry into any competition, any documents, designs, drawings or Goods which Equipcon has created for the Client.
12. Default and Consequences of Default
12.1 Interest on overdue invoices shall accrue daily from the date when payment becomes due, until the date of payment, at a rate of two and a half percent (2.5%) per calendar month (and at Equipcon’s sole discretion such interest shall compound monthly at such a rate) after as well as before any judgment.
12.2 If the Client owes Equipcon any money the Client shall indemnify Equipcon from and against all costs and disbursements incurred by Equipcon in recovering the debt (including but not limited to internal administration fees, legal costs on a solicitor and own client basis, Equipcon’s contract default fees, and bank dishonour fees).
12.3 Further to any other rights or remedies Equipcon may have under this contract, if a Client has made payment to Equipcon, and the transaction is subsequently reversed, the Client shall be liable for the amount of the reversed transaction, in addition to any further costs incurred by Equipcon under this clause 12 where it can be proven that such reversal is found to be illegal, fraudulent or in contravention to the Client’s obligations under this contract.
12.4 Without prejudice to Equipcon’s other remedies at law Equipcon shall be entitled to cancel all or any part of any order of the Client which remains unfulfilled and all amounts owing to Equipcon shall, whether or not due for payment, become immediately payable if:
(a) any money payable to Equipcon becomes overdue, or in Equipcon’s opinion the Client will be unable to make a payment when it falls due;
(b) the Client has exceeded any applicable credit limit provided by Equipcon;
(c) the Client becomes insolvent, convenes a meeting with its creditors or proposes or enters into an arrangement with creditors, or makes an assignment for the benefit of its creditors; or
(d) a receiver, manager, liquidator (provisional or otherwise) or similar person is appointed in respect of the Client or any asset of the Client.
13.1 Without prejudice to any other remedies Equipcon may have, if at any time the Client is in breach of any obligation (including those relating to payment) under these terms and conditions Equipcon may suspend or terminate the supply of Goods to the Client. Equipcon will not be liable to the Client for any loss or damage the Client suffers because Equipcon has exercised its rights under this clause.
13.2 Equipcon may cancel any contract to which these terms and conditions apply or cancel Delivery of Goods at any time before the Goods are delivered by giving written notice to the Client. On giving such notice Equipcon shall repay to the Client any money paid by the Client for the Goods. Equipcon shall not be liable for any loss or damage whatsoever arising from such cancellation.
13.3 In the event that the Client cancels Delivery of Goods the Client shall be liable for any and all loss incurred (whether direct or indirect) by Equipcon as a direct result of the cancellation (including, but not limited to, any loss of profits).
13.4 Cancellation of orders for Goods made to the Client’s specifications, or for non-stocklist items, will definitely not be accepted once production has commenced, or an order has been placed.
14.1 All emails, documents, images or other recorded information held or used by Equipcon is Personal Information, as defined and referred to in clause 3, and therefore considered Confidential Information. Equipcon acknowledges its obligation in relation to the handling, use, disclosure and processing of Personal Information pursuant to the Privacy Act 1988 (“the Act”) including the Part IIIC of the Act being Privacy Amendment (Notifiable Data Breaches) Act 2017 (NDB) and any statutory requirements, where relevant in a European Economic Area (“EEA”), under the EU Data Privacy Laws (including the General Data Protection Regulation “GDPR”) (collectively, “EU Data Privacy Laws”). Equipcon acknowledges that in the event it becomes aware of any data breaches and/or disclosure of the Clients Personal Information, held by Equipcon that may result in serious harm to the Client, Equipcon will notify the Client in accordance with the Act and/or the GDPR. Any release of such Personal Information must be in accordance with the Act and the GDPR (where relevant) and must be approved by the Client by written consent, unless subject to an operation of law.
14.2 Notwithstanding clause 1, privacy limitations will extend to Equipcon in respect of Cookies where transactions for purchases/orders transpire directly from Equipcon’s website. Equipcon agrees to display reference to such Cookies and/or similar tracking technologies, such as pixels and web beacons (if applicable), such technology allows the collection of Personal Information such as the Client’s:
(a) IP address, browser, email client type and other similar details;
(b) tracking website usage and traffic; and
(c) reports are available to Equipcon when Equipcon sends an email to the Client, so Equipcon may collect and review that information (“collectively Personal Information”)
In order to enable/disable the collection of Personal Information by way of Cookies, the Client shall have the right to enable/disable the Cookies first by selecting the option to enable/disable, provided on the website prior to proceeding with a purchase/order via Equipcon’s website.
14.3 The Client agrees for Equipcon to obtain from a credit reporting body (CRB) a credit report containing personal credit information (e.g. name, address, D.O.B, occupation, driver’s license details, electronic contact (email, Facebook or Twitter details), medical insurance details or next of kin and other contact information (where applicable), previous credit applications, credit history) about the Client in relation to credit provided by Equipcon.
14.4 The Client agrees that Equipcon may exchange information about the Client with those credit providers and with related body corporates for the following purposes:
(a) to assess an application by the Client; and/or
(b) to notify other credit providers of a default by the Client; and/or
(c) to exchange information with other credit providers as to the status of this credit account, where the Client is in default with other credit providers; and/or
(d) to assess the creditworthiness of the Client including the Client’s repayment history in the preceding two years.
14.5 The Client consents to Equipcon being given a consumer credit report to collect overdue payment on commercial credit.
14.6 The Client agrees that personal credit information provided may be used and retained by Equipcon for the following purposes (and for other agreed purposes or required by):
(a) the provision of Goods; and/or
(b) analysing, verifying and/or checking the Client’s credit, payment and/or status in relation to the provision of Goods; and/or
(c) processing of any payment instructions, direct debit facilities and/or credit facilities requested by the Client; and/or
(d) enabling the collection of amounts outstanding in relation to the Goods.
14.7 Equipcon may give information about the Client to a CRB for the following purposes:
(a) to obtain a consumer credit report;
(b) allow the CRB to create or maintain a credit information file about the Client including credit history.
14.8 The information given to the CRB may include:
(a) Personal Information as outlined in 3 above;
(b) name of the credit provider and that Equipcon is a current credit provider to the Client;
(c) whether the credit provider is a licensee;
(d) type of consumer credit;
(e) details concerning the Client’s application for credit or commercial credit (e.g. date of commencement/termination of the credit account and the amount requested);
(f) advice of consumer credit defaults, overdue accounts, loan repayments or outstanding monies which are overdue by more than sixty (60) days and for which written notice for request of payment has been made and debt recovery action commenced or alternatively that the Client no longer has any overdue accounts and Equipcon has been paid or otherwise discharged and all details surrounding that discharge (e.g. dates of payments);
(g) information that, in the opinion of Equipcon, the Client has committed a serious credit infringement;
(h) advice that the amount of the Client’s overdue payment is equal to or more than one hundred and fifty dollars ($150).
14.9 The Client shall have the right to request (by e-mail) from Equipcon:
(a) a copy of the Personal Information about the Client retained by Equipcon and the right to request that Equipcon correct any incorrect Personal Information; and
(b) that Equipcon does not disclose any Personal Information about the Client for the purpose of direct marketing.
14.10 Equipcon will destroy Personal Information upon the Client’s request (by e-mail) or if it is no longer required unless it is required in order to fulfil the obligations of this agreement or is required to be maintained and/or stored in accordance with the law.1
14.11 The Client can make a privacy complaint by contacting Equipcon via e-mail. Equipcon will respond to that complaint within seven (7) days of receipt and will take all reasonable steps to make a decision as to the complaint within thirty (30) days of receipt of the complaint. In the event that the Client is not satisfied with the resolution provided, the Client can make a complaint to the Information Commissioner at oaic.gov.au.
15. Unpaid Seller's Rights
15.1 Where the Client has left any item with Equipcon for repair, modification, exchange or for Equipcon to perform any other service in relation to the item and Equipcon has not received or been tendered the whole of any monies owing to it by the Client, Equipcon shall have, until all monies owing to Equipcon are paid:
(a) a lien on the item; and
(b) the right to retain or sell the item, such sale to be undertaken in accordance with any legislation applicable to the sale or disposal of uncollected goods.
15.2 The lien of Equipcon shall continue despite the commencement of proceedings, or judgment for any monies owing to Equipcon having been obtained against the Client.
16. Service of Notices
16.1 Any written notice given under this contract shall be deemed to have been given and received:
(a) by handing the notice to the other party, in person;
(b) by leaving it at the address of the other party as stated in this contract;
(c) by sending it by registered post to the address of the other party as stated in this contract;
(d) if sent by facsimile transmission to the fax number of the other party as stated in this contract (if any), on receipt of confirmation of the transmission;
(e) if sent by email to the other party’s last known email address.
16.2 Any notice that is posted shall be deemed to have been served, unless the contrary is shown, at the time when by the ordinary course of post, the notice would have been delivered.
17.1 If the Client at any time upon or subsequent to entering in to the contract is acting in the capacity of trustee of any trust (“Trust”) then whether or not Equipcon may have notice of the Trust, the Client covenants with Equipcon as follows:
(a) the contract extends to all rights of indemnity which the Client now or subsequently may have against the Trust and the trust fund;
(b) the Client has full and complete power and authority under the Trust to enter into the contract and the provisions of the Trust do not purport to exclude or take away the right of indemnity of the Client against the Trust or the trust fund. The Client will not release the right of indemnity or commit any breach of trust or be a party to any other action which might prejudice that right of indemnity.
(c) The Client will not without consent in writing of Equipcon (Equipcon will not unreasonably withhold consent), cause, permit, or suffer to happen any of the following events;
(i) the removal, replacement or retirement of the Client as trustee of the Trust;
(ii) any alteration to or variation of the terms of the Trust;
(iii) any advancement or distribution of capital of the Trust; or
(iv) any resettlement of the trust property.
18.1 The failure by either party to enforce any provision of these terms and conditions shall not be treated as a waiver of that provision, nor shall it affect that party’s right to subsequently enforce that provision. If any provision of these terms and conditions shall be invalid, void, illegal or unenforceable the validity, existence, legality and enforceability of the remaining provisions shall not be affected, prejudiced or impaired.
18.2 These terms and conditions and any contract to which they apply shall be governed by the laws of Victoria in which Equipcon has its principal place of business, and are subject to the jurisdiction of the courts in Victoria.
18.3 Equipcon shall be under no liability whatsoever to the Client for any indirect and/or consequential loss and/or expense (including loss of profit) suffered by the Client arising out of a breach by Equipcon of these terms and conditions (alternatively Equipcon’s liability shall be limited to damages which under no circumstances shall exceed the Charges).
18.4 Equipcon may licence and/or assign all or any part of its rights and/or obligations under this contract without the Client’s consent.
18.5 The Client cannot licence or assign without the written approval of Equipcon.
18.6 Equipcon may elect to subcontract out any part of the Services but shall not be relieved from any liability or obligation under this contract by so doing. Furthermore, the Client agrees and understands that they have no authority to give any instruction to any of Equipcon’s sub-contractors without the authority of Equipcon.
18.7 The Client agrees that Equipcon may amend these terms and conditions by notifying the Client in writing. These changes shall be deemed to take effect from the date on which the Client accepts such changes, or otherwise at such time as the Client makes a further request for Equipcon to provide Goods to the Client.
18.8 Neither party shall be liable for any default due to any act of God, war, terrorism, strike, lock-out, industrial action, fire, flood, storm or other event beyond the reasonable control of either party.
18.9 Both parties warrant that they have the power to enter into this contract and have obtained all necessary authorisations to allow them to do so, they are not insolvent and that this contract creates binding and valid legal obligations on them.
19. Terms Applicable to the Hire of Goods Only
19.1 Equipcon retains property in the Goods nonetheless all risk for the Goods passes to the Client on Delivery.
19.2 The Client accepts full responsibility for the safekeeping of the Goods and indemnifies Equipcon for all loss, theft, or damage to the Goods howsoever caused and without limiting the generality of the foregoing whether or not such loss, theft, or damage is attributable to any negligence, failure, or omission of the Client.
19.3 The Client will insure, or self insure, Equipcon’s interest in the Goods against physical loss or damage including, but not limited to, the perils of accident, fire, theft and burglary and all other usual risks and will effect adequate Public Liability Insurance covering any loss, damage or injury to property arising out of the Goods. Further the Client will not use the Goods nor permit it to be used in such a manner as would permit an insurer to decline any claim.
19.4 The Client accepts full responsibility for and shall keep Equipcon indemnified against all liability in respect of all actions, proceedings, claims, damages, costs and expenses in respect of any injury to persons, damage to property, or otherwise arising out of the use of the Goods during the hire period and whether or not arising from any negligence, failure or omission of the Client or any other persons.
19.5 Where the Goods does not have a timing device installed Hire Charges shall commence from the time the Goods are collected by the Client from Equipcon’s premises and will continue until the return of the Goods to Equipcon’s premises, and/or until the expiry of the Minimum Hire Period, whichever last occurs.
19.6 If Equipcon agrees with the Client to deliver and/or collect the Goods, Hire Charges shall commence from the time the Goods leave Equipcon’s premises and continue until the Client notifies Equipcon that the Goods are available for collection, and/or until the expiry of the Minimum Hire Period, whichever last occurs.
19.7 The date upon which the Client advises of termination shall in all cases be treated as a full day’s hire.
19.8 No allowance whatsoever can be made for time during which the Goods are not in use for any reason, unless Equipcon confirms special prior arrangements in writing. In the event of Goods breakdown, provided the Client notifies Equipcon immediately, hiring Charges will not be payable during the time the Goods are not working, unless the condition is due to negligence or misuse on the part of or attributable to the Client. Equipcon accepts no liability for any consequential loss and/or expense (including loss of profit) suffered by the Client and/or any third party as a result of the breakdown of any Goods.
19.9 The Client shall:
(a) maintain the Goods as is required by Equipcon (including, but not limited to, maintaining water, oil and fluid levels and tyre pressures);
(b) notify Equipcon immediately by telephone of the full circumstances of any mechanical breakdown or accident. The Client is not absolved from the requirements to safeguard the Goods by giving such notification;
(c) satisfy itself at commencement that the Goods are suitable for its purposes;
(d) operate the Goods safely, strictly in accordance with the law, only for its intended use, and in accordance with any manufacturer’s instruction whether supplied by Equipcon or posted on the Goods;
(e) ensure that all persons operating or erecting the Goods are suitably instructed in its safe and proper use and where necessary hold a current Certificate of Competency and/or are fully licensed to operate the Goods and shall provide evidence of the same to Equipcon upon request;
(f) comply with all occupational health and safety laws relating to the Goods and its operation;
(g) on termination of the hire, deliver the Goods complete with all parts and accessories, clean and in good order as delivered, fair wear and tear accepted, to Equipcon;
(h) keep the Goods in their own possession and control and shall not assign the benefit of the hire contract nor be entitled to lien over the Goods;
(i) not alter or make any additions to the Goods including but without limitation altering, make any additions to, defacing or erasing any identifying mark, plate or number on or in the Goods or in any other manner interfere with the Goods;
(j) employ the Goods solely in its own work and shall not permit the Goods or any part thereof to be used by any other party for any other work;
(k) not exceed the recommended or legal load and capacity limits of the Goods;
(l) not use or carry any illegal, prohibited or dangerous substance in or on the Goods;
(m) not fix any of the Goods in such a manner as to make it legally a fixture forming part of any freehold.
19.10 Immediately on request by Equipcon the Client will pay:
(a) the new list price of any Goods, accessories or consumables that are for whatever reason destroyed, written off or not returned to Equipcon;
(b) all costs incurred in cleaning the Goods;
(c) all costs of repairing any damage caused by:
(i) the ordinary use of the Goods up to an amount equal to ten percent (10%) of the new list price of the Goods;
(ii) wilful or negligent actions of the Client or the Client’s employees;
(iii) vandalism, or (in Equipcon’s reasonable opinion) in any way whatsoever other than by the ordinary use of the Goods by the Client;
(d) the cost of fuels and consumables provided by Equipcon and used by the Client;
(e) any costs incurred by Equipcon in picking up and returning the Goods to Equipcon’s premises if the Client does not return the Goods to Equipcon’s premises or any pre-agreed pickup location when it was originally agreed that the Client would do so.
(f) any lost hire fees Equipcon would have otherwise been entitled to for the Goods, under this, or any other hire agreement;
(g) any insurance excess payable in relation to a claim made by either the Client or Equipcon in relation to any damage caused by, or to, the hire Goods whilst the same is hired by the Client and irrespective of whether charged by the Client’s insurers or Equipcon’s.
19.11 Only to the extent that the hire of the Goods exceeds a two (2) year hire period with the right of renewal shall clause 8 apply as a security agreement in the form of a PPS Lease in respect of Section 20 of the PPSA, in all other matters this clause 8 will apply generally for the purposes of the PPSA.
11. Terms Applicable to the Sale
of Goods Only
(a) Risk of damage to or loss of the Goods passes to the Client on Delivery (in accordance with clause 1) and the Client must insure the Goods on or before Delivery.
(b) If any of the Goods are damaged or destroyed following Delivery but prior to ownership passing to the Client, Equipcon is entitled to receive all insurance proceeds payable for the Goods. The production of these terms and conditions by Equipcon is sufficient evidence of Equipcon’s rights to receive the insurance proceeds without the need for any person dealing with Equipcon to make further enquiries.
(c) If the Client requests Equipcon to leave Goods outside Equipcon’s premises for collection or to deliver the Goods to an unattended location then such Goods shall be left at the Client’s sole risk.
20.2 Specifications of the Goods
(a) Where Equipcon gives advice or recommendations to the Client, or the Client’s agent, with specific instructions regarding the use of the Goods and such advice or recommendations are not acted upon then Equipcon shall not be liable in any way whatsoever for any damages or losses that occur after any subsequent purchase of the Goods.
(b) The Client acknowledges that:
(i) all descriptive specifications, illustrations, drawings, data, dimensions and weights stated in Equipcon’s fact sheets, price lists or advertising material, are approximate only and are given by way of identification only. The Client shall not be entitled to rely on such information, and any use of such does not constitute a sale by description, and does not form part of the contract, unless expressly stated as such in writing by Equipcon;
(ii) while Equipcon may have provided information or figures to the Client regarding the performance of the Goods, the Client acknowledges that Equipcon has given these in good faith, and are estimates which are variable due to factors out of Equipcon’s control.
(c) The Client shall be responsible for ensuring that the Goods ordered are suitable for their intended use.
(d) Equipcon reserves the right to substitute comparable Goods (or components of the Goods), and in all such cases Equipcon will notify the Client in advance of any such substitution.