Terms and Conditions

1. Definitions

“Accepted Order” has the meaning given in clause 2.2.
“Australian Consumer Law” means schedule 2 of the Competition and Consumer Act 2010 (Cth) and any equivalent state or territory legislation.
“Business Day” means any day which is not a Saturday, Sunday or public holiday in Victoria.
“CCA” means the Competition and Consumer Act 2010 (Cth).
“Confidential Information” means confidential information, trade secrets, know-how, scientific, technical, product, market or pricing information relating to the Equipment, the Services or Clearance Tool’s business.
“Contract” means the contract of hire (as the case may be) of Equipment and/or Services between Clearance Tools and the Customer which comprises these Terms, any terms set out in the Credit Application and the Accepted Order for the Equipment and/or Services.
“Control” has the meaning given in section 50AA of the Corporations Act 2001 (Cth).
“Credit Application” means a credit application submitted by a Customer in a form approved by Clearance Tools.
“Customer” means the individual, body corporate,  partnership or body politic (or any of them acting in the capacity as trustee of a trust) which hires the Equipment and/or acquires the Services (as applicable) from Clearance Tools pursuant to these Terms, the details of which are as specified in any invoice, Credit Application or Accepted Order.
“Delivery” or “Delivered” has the meaning provided in clause 5.3.
“Dry Hire” means the hire of Equipment without an Operator.
“Equipment” means any equipment (and each and every part of the equipment) supplied by Clearance Tools to the Customer under the Contract on a Wet Hire or Dry Hire basis.
“Hire Period” has the meaning given in clause 21.1(a).
“Insolvency Event” in relation to a person means the happening of any of the following events to that person:

(a)  they are (or state they are) an insolvent under administration or insolvent (each as defined in the Corporations Act 2001 (Cth)); or
(b)  they have had a controller (as defined in the Corporations Act 2001 (Cth)) appointed, are in liquidation, in provisional liquidation, under administration or wound up or have had a receiver or a receiver and manager appointed to any part of their property; or
(c)  they are subject to any arrangement, assignment, moratorium or composition, protected from creditors under any statute, or dissolved, (in each case, other than to carry out a reconstruction or amalgamation while solvent on terms approved by Clearance Tools); or
(d)  an application or order has been made (and, in the case of an application, it is not stayed, withdrawn or dismissed within 30 days), resolution passed, proposal put forward, or any other action taken, in each case in connection with them, which is preparatory to or could result in any of the things referred to in paragraphs (a) to (c) inclusive above; or
(e)  they are taken (under section 459F of the Corporations Act 2001 (Cth)) to have failed to comply with a statutory demand or have committed an act of bankruptcy as defined in the Bankruptcy Act 1966 (Cth); or
(f)  they are the subject of an event described in section 459C(2)(b) or section 585 of the Corporations Act 2001 (Cth) (or they make a statement from which Clearance Tools reasonably deduces they are so subject); or
(g)  they are otherwise unable to pay their debts when they fall due; or
(h)  something having a substantially similar effect to any of the things referred to above happens in connection with them under the law of any jurisdiction.

“Intellectual Property Rights” means:

(a)  inventions, discoveries and novel designs, whether or not registered or registrable as patents or designs, including developments or improvements of equipment, products, technology, processes, methods or techniques;
(b)  copyright (including future copyright) throughout the world in all literary works, artistic works, computer software and any other works or subject matter in which copyright subsists and may in the future subsist;
(c)  confidential information and trade secrets;
(d)  trade and service marks (whether registered or unregistered), business names, trade names, domain names, logos and get-up; and
(e)  proprietary rights under the Circuit Layouts Act 1989 (Cth).

“Loss” means any losses, liabilities, damages, costs, interest, charges, fines, penalties or expenses (including lawyer’s fees and expenses on a full indemnity basis) whether direct, indirect, special, consequential or otherwise, including, in respect of Clearance Tools, any liability to Clearance Tool’s hirers in connection with the on-hiring of Equipment to the Customer.
“Operator” means an operator or operators of Equipment hired to the Customer by Clearance Tools under a Contract for Wet Hire.
“Price” means the Price payable for the Equipment (including the Operator) and/or Services in accordance with clause 4.
“Representatives” means officers, directors, employees, agents, representatives, contractors and / or subcontractors of the relevant party but a party to the Contract and its officers, directors, employees, agents, representatives, contractors and subcontractors are not “Representatives” of the other party to the Contract.
“Services” means any services that Clearance Tools supplies to the Customer as set out in the Accepted Order.
“Clearance Tools” means Orbinox Pty Ltd ACN 154 483 682 trading as Clearance Tools, its successors and assigns.
“Terms” means these Hire Terms and Conditions.
“Wet Hire” means the hire of Equipment with an Operator.

2. Order and Acceptance

2.1  Each order placed by the Customer will constitute an offer by the Customer to hire the Equipment on a Dry Hire or Wet Hire basis, as applicable, from SFI and/or engage SFI to provide the Services on and subject to these Terms.
2.2  SFI may refuse to accept an order, or part of an order, placed by the Customer without giving reasons. On acceptance of an order by SFI (Accepted Order), a separate Contract will be formed between SFI and the Customer.
2.3  The Customer may not, without SFI’s written consent, cancel an order after SFI has accepted the order. If SFI consents to the cancellation of an order, the Customer will be liable for all reasonable costs incurred by SFI up to the time of cancellation.
2.4  The Customer is taken to have accepted, and is immediately bound by, these Terms if:

(a)  the Customer accepts these Terms during the process of submitting its Credit Application (online or otherwise);
(b)  the Customer signs these Terms;
(c)  the Customer places an order for Equipment or Services after receipt of these Terms; or
(d)  the Customer accepts delivery of any Equipment or Services after receipt of these Terms.

3. Change in Control

3.1  The Customer shall give SFI no less than fourteen (14) days prior written notice of:

(a)  any proposed change of Control of the Customer; or
(b)  any other change in the Customer’s details most recently provided to SFI (including but not limited to, changes in the Customer’s name, address, contact phone or fax number/s).

3.2  The Customer is liable for any Loss suffered or incurred by SFI as a result of the Customer’s failure to comply with this clause.

4. Price and Payment

4.1  The Price payable by the Customer in connection with any Equipment hired (on a Dry Hire or Wet Hire Basis), or Services provided by SFI, is

SFI’s quoted price (subject to clause 4.2) which will be valid for the period stated in the quotation or otherwise for a period of thirty (30) days.

4.2  SFI reserves the right to change the Price:

(a)  if a variation to an Accepted Order is requested by the Customer, in which case SFI will notify the Customer in writing of the amount of any variation to the Price resulting from the variation (Price Variation). If the Customer does not accept the Price Variation, the Customer may cancel the proposed variation by notifying SFI in writing within 24 hours of receipt of the notice of the Price Variation. If the Customer neither accepts nor rejects the Price Variation, the Accepted Order will remain as is and SFI will proceed to fulfil that order on the basis of the original pricing and scope; or
(b)  to reflect any actual increase in the costs and expenses incurred by SFI to supply the Equipment (including Operator, where relevant) or Services to the Customer, including without limitation, fluctuations in the currency exchange rate, or increases to SFI from suppliers in the cost of materials, goods, services, equipment and labour. SFI will provide the Customer with reasonable documentation to substantiate such variations, on request.

4.3  Time for payment is of the essence. The Price will be payable by the Customer on the date/s determined by SFI (and notified to the Customer), which may be:

(a)  for Customers who have not been approved for credit by SFI, either before or on delivery of the Equipment or Services; and
(b)  for Customers who have been approved for credit by SFI in writing, within thirty (30) days of the date of each tax invoice issued to the Customer, unless otherwise notified by SFI to the Customer in writing.

4.4  Payment may be made by cash, cheque, bank cheque, electronic/on-line banking, credit card excluding Diners Card (plus a surcharge of up to two percent (2%) of the Price on transactions made via American Express), or by any other method that SFI reasonably directs.
4.5  Unless otherwise stated, the Price does not include GST or any other taxes and duties that may be applicable in addition to the Price except where they are expressly included in the Price. Such amounts will be payable by the Customer.
4.6  The Customer must pay all amounts payable to SFI under these Terms without any deduction, withholding, counterclaim or set off.

5. Delivery of Equipment and provision of Services

5.1  Unless stated otherwise in the order, the Customer is responsible (at its cost) for collecting the Equipment from SFI’s premises and for returning the Equipment to SFI’s premises at the end of the Hire Period.
5.2  Where SFI has agreed to deliver the Equipment to the Customer’s premises and to collect the Equipment from the Customer’s premises at the end of the Hire Period, freight will be on the Customer’s account and will be added to the Price. SFI will endeavour to discuss and agree upon the freight cost with the Customer before such amounts are incurred, except in circumstances where the Customer requests an urgent or expedited delivery, in which case SFI will use all reasonable endeavours to obtain a competitive price for the freight.
5.3  Delivery of the Equipment is taken to occur at the time that:

(a)  the Customer takes possession of the Equipment at SFI’s premises; or
(b)  if the Equipment is delivered to the Customer, at the time that the Equipment is unloaded at the Customer’s premises,

(Delivery or Delivered).

5.4  If the Customer is unable to take Delivery of the Equipment as arranged, then SFI may deliver the Equipment to a place of storage nominated by the Customer and, failing such nomination, to a place determined by SFI, provided that such place is within reasonable proximity to the initial delivery point and provided that SFI notifies the Customer of such location. Such action shall be deemed to be Delivery to the Customer. The Customer shall be liable for all reasonable costs, charges and expenses incurred by SFI in connection with such action.
5.5  SFI will use all commercially reasonable efforts to Deliver all Equipment or provide all Services (as applicable) for which there is an Accepted Order by the date (if any) specified in the Accepted Order and in the absence of any date, within a reasonable time.
5.6  The failure of SFI to Deliver the Equipment or provide the Services by the date specified in the order does not entitle either party to treat an order or the Contract as repudiated.
5.7  The Customer must still accept Delivery of the Equipment or provision of Services even if after the estimated date and, except where SFI’s liability may not be excluded under the Australia Consumer Law, SFI will not be liable for any Loss incurred by the Customer as a result of the Delivery or provision of Services being after the estimated date, other than to refund any Price paid by the Customer where the Equipment is not delivered at all / Services are not provided at all.
5.8  The Customer must provide SFI and its Representatives with access to the Customer’s premises or any other location where the arrangement is a Wet Hire and/or where Services are to be provided. The Customer must ensure that it complies with all laws concerning occupational health & safety at such premises or site and must provide a safe working environment free from contamination and other hazardous materials to enable SFI to safely and effectively provide the Services, and the Operator to safely and effectively operate the relevant Equipment. SFI may refuse to provide an Operator or the Services or may suspend the Services (or refuse to provide the Operator) at any time if it determines, acting reasonably, that there is any risk of harm or danger to SFI or its Representatives including any Operator, without liability. The Customer must comply with any reasonable direction or request provided by SFI or its Representatives (including Operators) concerning occupational health or safety at any premises on which the Services (and any Wet Hire) are provided.

6. Risk

6.1  Risk in the Equipment passes from SFI to the Customer at the time the Equipment is Delivered. Risk passes back to SFI on the date that the Equipment is returned to SFI at SFI’s premises (or collected by SFI from the Customers’ premises, as the case may be).
6.2  The Customer must insure all Equipment for its full replacement value on and from Delivery and for such time that the Equipment is on hire to the Customer.
6.3  If the Equipment, or any part of the Equipment, is damaged or destroyed during the Hire Period, the Customer agrees to make an insurance claim in respect of any loss or damage caused to the Equipment and pass through all insurance proceeds received to SFI. The production of these Terms by SFI is sufficient evidence of SFI’s right to receive the insurance proceeds without the need for any person dealing with SFI to make further enquiries.
6.4  If the Customer requests that SFI leave the Equipment outside SFI’s premises for collection or deliver the Equipment to an unattended location, such Equipment shall be left at the Customer’s sole risk. The Customer indemnifies SFI for any Loss suffered or incurred by SFI in connection with any request by the Customer to leave the Equipment outside SFI’s premises for collection or to deliver the Equipment to an unattended location.

7. Title

7.1  SFI and the Customer agree that title to the Equipment will remain with SFI at all times during the Hire Period.

8. Personal Property Securities Act 2009 (“PPSA”)

8.1  In this clause 8, the expressions financing statement, financing change statement, security agreement, verification statement and security interest each have the meaning given to it in the PPSA and PPSR means the Personal Property Securities Register established under the PPSA.
8.2  By agreeing to these Terms, the Customer acknowledges and agrees that these Terms, any terms set out in the Credit Application and each Accepted Order constitutes a security agreement for the purposes of the PPSA where a transaction contemplated by these Terms creates a security interest in  the relevant Equipment.
8.3  The Customer undertakes to promptly sign any further documents and/or provide any further information (such information to be complete, accurate and up-to-date in all respects) which SFI may reasonably require to:

(a)  prepare and register on the PPSR a financing statement or financing change statement in relation to a security interest granted by the Customer to SFI or give any notification in connection with such a security interest;
(b)  correct a defect in a financing statement or a financing change statement referred to in clause 3(a);
(c)  ensure any security interest granted by the Customer to SFI is at all times perfected, enforceable and has first ranking priority;
(d)  enable SFI to exercise any of its rights or perform any of its obligations in connection with any security interest granted by the Customer to SFI; and
(e)  indemnify, and upon demand reimburse, SFI for all expenses incurred in registering a financing statement or a financing change statement (including to release Equipment from a security interest).

8.4  The Customer waives their rights to receive notices under sections 95, 118, 121(4) and 130 of the PPSA.
8.5  The Customer waives their rights as a grantor and/or a debtor under sections 132(3)(d), 132(4), 142 and 143 of the PPSA.
8.6  Unless otherwise agreed to in writing by SFI, the Customer waives their right to receive any notice of verification statement in connection with any security interest in favour of SFI.
8.7  Subject to the express provisions to the contrary in clauses 8.4 to 8.6 inclusive, nothing in these Terms is intended to have the effect of contracting out of any of the provisions the PPSA.

9. Defects & Limitation of Liability

The Customer must inspect the Equipment on Delivery and must within seven (7) Business Days of Delivery notify SFI in writing of any defect, damage, or failure to comply with the description or quote. The Customer must notify any other alleged defect in the Equipment as soon as reasonably possible after any such defect becomes evident. Upon such notification, the Customer must allow SFI to inspect the Equipment.

9.1  Limitation of liability – Non-Excludable Rights

(a)  The Customer may have rights under the Australian Consumer Law or other rights in relation to the hire of Equipment or provision of Services that cannot lawfully be excluded by SFI (Non-Excludable Rights).
(b)  To the extent permitted by law, SFI’s liability in respect of any Non-Excludable Right is limited, at SFI’s option, in the case of goods, to repair or replacement of the goods or the cost of repairing or replacing the goods, and in the case of services, to supplying the services again or paying the cost of having the services resupplied.

9.2  Limitation of liability – other

(a)  SFI excludes all liability to the Customer for the loss of use, production, profit, revenue, business, data, contract or anticipated saving, or for any financing costs or increase in operating costs or any economic loss or for any special, indirect or consequential loss or damage.
(b)  Subject to any rights the Customer may have in respect of Non-Excludable Rights, SFI shall not be liable for any defect or damage which may be caused or partly caused by or arise as a result of:

(i)  the Customer failing to properly maintain or store the Equipment;
(ii)  the Customer using the Equipment for any purpose other than that for which it was designed;
(iii)  the Customer continuing to use the Equipment after any defect has become apparent or would have become apparent to a reasonably prudent operator or user; or
(iv)  the Customer failing to follow any instructions or guidelines provided by SFI.

(c)  Subject to any rights the Customer may have in respect of Non-Excludable Rights, SFI’s sole liability for any defect or damage caused to the Equipment is limited to the repair or replacement of the Equipment at its option.

10. Intellectual Property

10.1  SFI remains the owner or licensee (as the case may be) of all Intellectual Property Rights owned or used by SFI prior to the Contract.
10.2  The parties agree that any Intellectual Property Rights created or developed under or in connection with the Contract or in the course of supplying the Equipment and/or Services (including any Intellectual Property Rights in Equipment which are modified or updated or enhanced by SFI) are owned by SFI.

11. Default and Consequences of Default

11.1  Interest on an amount which is due for payment but is unpaid accrues daily (and will be capitalised monthly) from the date when the amount becomes due, until the date of payment, at a rate of two and a half percent (2.5%) per calendar month (and at SFI’s sole discretion such interest shall compound monthly at such a rate) after as well as before any judgment.
11.2  If the Customer owes SFI any money, the Customer shall indemnify SFI from and against all costs and disbursements incurred by SFI in recovering the debt (including but not limited to internal administration fees, legal costs on a solicitor and own Customer basis, SFI’s collection agency costs, and bank dishonour fees).
11.3  Without prejudice to any other remedies SFI may have, if at any time the Customer is in breach of any obligation (including those relating to payment) under these Terms, SFI may suspend the supply of the Equipment, Operator or Services to the Customer. SFI will not be liable to the Customer for any Loss the Customer suffers because SFI has exercised its rights under this SFI may immediately terminate any Contract and repossess the Equipment under clause 13.4 if SFI determines, acting reasonably, that the Customer may or has caused any damage or loss to any Equipment on hire or has otherwise failed to provide a safe environment (compliant with all occupational health and safety laws) for the Equipment, any Operator or the provision of any Services.

12. Termination

12.1  Either party (Terminating Party) may immediately terminate any Contract on foot by written notice to the other party if the other party (Defaulting Party):

(a)  breaches these Terms or the Contract in a material respect and, in the reasonable opinion of the Terminating Party, the breach:

(i)  cannot be remedied; or
(ii)  can be remedied, but is not remedied by the Defaulting Party within 7 Business Days after the Terminating Party gives the Defaulting Party notice of the breach; or

(b)  suffers an Insolvency Event.

12.2  If a Contract is terminated in accordance with clause 1, the Customer must, within 7 Business Days after the date of termination:

(a)  pay SFI all amounts owing to SFI as at the date of termination (including, for the avoidance of doubt, any amounts owing in arrears which have accrued but have not yet been paid); and
(b)  return all Confidential Information to SFI.

12.3  If a Contract is terminated in accordance with clause 1,, SFI will have an immediate right to possession of all Equipment on hire, and all amounts owing by the Customer in respect of the Equipment (together with all other amounts owing by the Customer to SFI) will become due and payable and must be paid by the Customer on demand by SFI. Further, SFI will be entitled (without prejudice to any other right or remedy provided under these Terms or otherwise) to suspend indefinitely all further deliveries of Equipment in respect of any Accepted Orders, refuse to accept any further orders and cancel any credit facility provided to the Customer.
12.4  The Customer must immediately deliver up to SFI any Equipment on hire on termination (in good working order and condition). The Customer grants SFI a right to enter any premises at which the Equipment is located in order to repossess the Equipment if the Customer fails to comply with this clause, and must ensure that it has obtained a right of access in favour of SFI from any landlord or other relevant third party where the premises is not owned by the Customer.

13. Indemnity

13.1  The Customer indemnifies SFI and its Representatives against any Loss which SFI and/or its Representatives suffer, incur or are liable for in connection with:

(a)  any negligent act or omission of the Customer or its Representatives;
(b)  any breach of these Terms or a Contract by the Customer; or
(c)  enforcing any security interest arising under a Contract.

13.2  SFI holds the benefit of the indemnity in clause 1 on trust for its Representatives.
13.3  The indemnity in clause 1 will not apply to the extent that any Loss is caused or contributed to by SFI’s negligence or wilful misconduct.

14. Force majeure

14.1  If there is any delay or failure in the hire or Delivery of Equipment or provision of any Operator or the Services by SFI due to weather, fire, labour dispute, strike, government direction or order, pandemic, epidemic or any other cause whatsoever beyond SFI’s reasonable control:

(a)  SFI is not in breach of these Terms or any Contract by reason of that delay or failure;
(b)  SFI’s obligation to hire or Deliver the Equipment or to provide the Operator or Services is suspended for the period of that delay or failure;
(c)  if the delay or failure continues for in excess of 30 days, SFI may terminate any Contract by notice in writing to Customer; and
(d)  SFI is not liable for any Loss incurred by the Customer by reason of such suspension or termination.

15. Building and Construction Industry Security of Payments Act 1999

15.1  At SFI’s sole discretion, if there are any disputes or claims for unpaid Equipment and/or Services then the provisions of the Building and Construction Industry Security of Payments Act 2002 may apply.
15.2  Nothing in these Terms is intended to have the effect of contracting out of any applicable provisions of the Building and Construction Industry Security of Payments Act 2002 of Victoria, except to the extent permitted by that Act where applicable.

16. Insurance

16.1  The Customer must effect and maintain, from a reputable insurance company, an insurance policy for the replacement value of the Equipment for the duration of the Hire Period.
16.2  The Customer must provide SFI with a copy of a certificate of currency for each insurance policy required by the Customer under clause 1 prior to the Equipment leaving SFI’s premises and at any other time requested by SFI.

17. Hire terms

17.1  Period of Hire

(a)  The period of hire for the Equipment on hire (Hire Period) commences on Delivery of the Equipment and concludes when the Equipment is returned to SFI’s premises.
(b)  The Customer acknowledges and agrees that, unless otherwise agreed by SFI, the Price for the hire of the Equipment is based on the length of the Hire Period, and not the actual amount of time that the Equipment is used by the Customer.

17.2  Pre hire inspection

(a)  The Equipment will be inspected by SFI prior to its Delivery to the Customer to ascertain and record the condition of the Equipment at the commencement of the Hire Period (Pre Hire Inspection).
(b)  The Customer acknowledges and agrees that SFI’s record of the Pre Hire Inspection is sufficient evidence of the condition of the Equipment at the commencement of the Hire Period unless it is proven to be false.

17.3  Operator

(a)  The Operator is under the sole direction and control of the Customer. The Customer is responsible for any Loss suffered or incurred by SFI or the Operator in connection with or as a result of the operation of the Equipment by the Operator while under the direction of the Customer. The Customer agrees to indemnify SFI and the Operator for any such Loss on demand. SFI holds the benefit of this clause on trust for each Operator.
(b)  All Operators are paid in accordance with the relevant laws and awards. In accordance with those awards, when allowances (ie meal, penalty rates, confined space, no turnout break) are due to be paid to the Operator, those costs will be charged to the Customer unless otherwise agreed by SFI.
(c)  Where the Contract specifies that the Equipment will be supplied on Wet Hire to the Customer, the Price will include an allowance for payroll tax, superannuation and workers compensation at the appropriate rates required by law.
(d)  SFI will locate another Operator if the nominated Operator is unwell or unfit to operate the Equipment on the agreed date or dates. The Customer acknowledges and agrees that SFI will do so as promptly as possible but that, subject to clause 1, SFI will not be liable for any delay in locating a replacement Operator.

17.4  Use of the Equipment

(a)  During the Hire Period, the Customer must, and must ensure that its Representatives:

(i)  use or operate the Equipment strictly in accordance with SFI’s and any manufacturer’s instructions;
(ii)  use the Equipment only in the operating conditions, for the purpose and within the capacity for which they are designed;
(iii)  ensure the Equipment is used only by suitably trained and certified persons;
(iv)  wear suitable clothing and protective equipment when operating the Equipment;
(v)  maintain the Equipment in good condition and in accordance with applicable legislation, Australian Standards and industry best practices;
(vi)  store the Equipment securely;
(vii)  maintain all licences, consents, permits and approvals required in connection with the possession and use of the Equipment; and
(viii)  allow SFI or its nominee to inspect the Equipment at any time during the Hire Period.

(b)  During the Hire Period, the Customer must not, and must ensure that its Representatives do not, without the prior written consent of SFI:

(i)  undertake any modifications or additions to the Equipment;
(ii)  deface, cover up or remove any identifying marks on the Equipment;
(iii)  reverse engineer the Equipment;
(iv)  allow the Equipment to become affixed to land or to become an accession to any other Equipment;
(v)  sell, assign, lend, lease, sub-hire, bail, give a ‘security interest’ (as that term is defined in the PPSA) in or otherwise deal with the Equipment;
(vi)  use the Equipment in an area where contaminants or materials that present a risk of harm to human health or the environment (including asbestos) are present; or
(vii)  move the Equipment from the Customer’s premises to any other location approved by SFI for storage and/or use of the Equipment.

18. Breakdown and repair

18.1  The Customer must promptly notify SFI if any Equipment on hire breaks down or requires repair.
18.2  SFI will only be responsible for the cost of replacing parts and components of the Equipment (other than ground engaging parts) required to be replaced due to normal wear and tear.
18.3  The Customer will be responsible for the cost of any replacement parts or components damaged either directly or indirectly by:

(a)  the misuse, mishandling, negligent use or operation of the Equipment by the Customer or any other person whilst the Equipment is on hire to the Customer, including use of the Equipment in extremely adverse environments causing premature failures to any parts or components; or
(b)  the Customer failing to comply with its obligations pursuant to clause 21 of these Terms,

and SFI will not be liable for any delay in the Customer’s work, business or operations as a result of any of the above circumstances.

19. Return of Equipment

19.1  At the end of the Hire Period, the Customer must return the Equipment to SFI’s premises during SFI’s normal business hours (unless otherwise agreed).
19.2  The Equipment must be returned to SFI in a clean, undamaged and unaltered condition, fair wear and tear excepted.
19.3  SFI may agree to collect the Equipment from the Customer if it receives a written request from the Customer to do so at least 7 days before the end of the Hire Period (Pick Up Request). SFI will indicate its acceptance of a Pick Up Request by providing pick-up number to the Customer.
19.4  SFI is entitled to charge the Customer a fee on a “costs incurred basis” in each of the following circumstances:

(a)  the Customer provides a Pick Up Request;
(b)  the Customer returns the Equipment to SFI other than at its premises or outside SFI’s normal business hours; or
(c)  SFI collects the Equipment from the Customer, either at the request of the Customer or because the Customer fails to return the Equipment to SFI.

20. Post hire inspection

20.1  Upon the return of the Equipment to SFI’s premises, an inspection of the Equipment will be conducted by SFI to ascertain and record the condition of the Equipment at the end of the Hire Period (Post Hire Inspection).
20.2  The Customer acknowledges and agrees that SFI’s record of the Post Hire Inspection is sufficient evidence of the condition of the Equipment at the end of the Hire Period unless it is proved to be false.
20.3  The Customer acknowledges and agrees that the costs of repairing any damage to the Equipment occurring during the Hire Period (whether identified during or subsequent to the Post Hire Inspection), cleaning the Equipment and replacing any components, consumables and worn parts will be borne by the Customer and must be paid by the Customer to SFI within 7 days after the Customer receives a tax invoice from SFI for those costs.
20.4  If the Equipment is not returned to SFI (including where the Equipment has been destroyed) or is returned to SFI in a condition that SFI determines, acting reasonably, renders it unsuitable for future use and/or rehire, SFI may charge the Customer the full cost of replacing the Equipment.
20.5  The Customer must:

(a)  keep the Equipment in its own possession and control and must not on-hire, assign the benefit or the use of the Equipment or create any encumbrance (including a security interest for PPSA purposes) over the Equipment;
(b)  not alter or make any additions to the Equipment including, but without limitation, altering, defacing or erasing any identifying mark, plate or number on or in the Equipment or in any other manner interfere with the Equipment;
(c)  keep the Equipment, complete with all parts and accessories, clean and in good order as delivered, and
(d)  comply with any maintenance schedule as advised by SFI to the Customer.

20.6  The Customer accepts full responsibility for the safekeeping of the Equipment and the Customer agrees to insure, or self-insure, SFI’s interest in the Equipment and agrees to indemnify SFI against physical loss or damage including, but not limited to, the perils of accident, fire, theft and burglary and all other usual risks and will effect adequate Public Liability Insurance covering any loss, damage or injury to property or persons arising out of the use of the Equipment. Further, the Customer will not use the Equipment, nor permit them to be used, in such a manner as would permit an insurer to decline any claim.
20.7  The Customer acknowledges and agrees that some of the Equipment supplied by SFI for hire may be supplied to SFI by a third party under a hire or lease arrangement. The Customer agrees to pay any costs or charges that SFI incurs or is liable to pay to that third party in connection with the use of the Equipment by the Customer, except where such costs or charges are caused by an act or omission of SFI.

21. GST

21.1  If any supply by SFI to the Customer under or in connection with these Terms is subject to GST, the Customer must pay to SFI, in addition to the consideration for that supply (unless it expressly includes GST), an amount (additional amount) equal to the amount of the consideration (or its GST exclusive market value) multiplied by the rate at which GST is imposed in respect of the supply. The Customer must pay the additional amount to SFI at the same time as the consideration for the supply is payable.
21.2  In these Terms, the terms ‘tax invoice’, ‘GST’, and ‘GST exclusive market value’ have the respective meanings given in the A New Tax System (Goods and Services Tax) Act 1999 (Cth) (as amended).

22. DISPUTES

22.1  Any dispute relating to these Terms (Dispute) will be dealt with in accordance with this clause.
22.2  The party claiming the Dispute will give notice of the Dispute to the other party which will include all facts on which that party relies in relation to that Dispute (Dispute Notice).
22.3  Within five Business Days after service of a Dispute Notice, each of the parties’ Representatives will meet at least once to attempt, using their reasonable endeavours, to resolve the Dispute in good faith.
22.4  If the Dispute has not been resolved within 15 Business Days after the service of the Dispute Notice, either party may start mediation by serving a written notice setting out the nature of the dispute, the proposed mediator, venue and attendees (Mediation Notice).
22.5  Within 30 days of the Mediation Notice, the parties must use best endeavours to agree on the mediator, venue and attendees.
22.6  If the parties cannot reach agreement about the mediator, either party may refer the matter to the Australian Disputes Centre for the appointment of a mediator.
22.7  Each party must pay an equal share of the mediator’s fees and the mediation venue costs.
22.8  Each party must be represented at the mediation by a person with authority to settle the dispute.
22.9  Any information disclosed in connection with mediation remains confidential and is privileged from disclosure to third parties or in evidence, except to enforce a settlement agreement reached at the mediation.
22.10  Any agreement reached at mediation will not be binding unless it is reduced to writing and signed by the parties.
22.11  A party may not start court proceedings in relation to a Dispute until it has complied with the procedures in this clause, unless it commences legal proceedings to preserve any rights it may have.
22.12  Nothing in this clause prevents a party seeking urgent injunctive or interlocutory relief.
22.13  Notwithstanding the existence of a Dispute, both parties will continue to perform their respective obligations under these Terms.

23. CONFIDENTIAL INFORMATION

 23.1  Each party (Recipient) must keep confidential, and not disclose, any Confidential Information of the other party (Discloser) except:

(a)  as permitted under these Terms;
(b)  with the prior written consent of the Discloser;
(c)  where the Recipient is compelled to do so by law, provided that it gives the other party written notice prior to disclosure.

23.2  The Recipient must only use the Confidential Information of the Discloser for the purpose for which it was disclosed and in connection with these Terms.
23.3  The Recipient must:

(a)  maintain effective security measures to protect all Confidential Information in the possession or control of the Recipient from unauthorised access, use, copying or disclosure;
(b)  notify the Discloser immediately in writing if the Recipient becomes aware of any anticipated, suspected or actual breach of these conditions by the Recipient and take all reasonable steps required to prevent or stop that breach, at the Recipient’s expense; and
(c)  reasonably assist the Discloser in connection with any action or investigation by the Discloser regarding any anticipated, suspected or actual unauthorised disclosure or misuse of the Confidential Information by the Recipient.

24. TRUST

24.1  If the Customer is the trustee of a trust:

(a)  the Customer is bound by these Terms and grants any security interest (for PPSA purposes) in the Equipment in its personal capacity and in its capacity as trustee of the trust;
(b)  the Customer warrants that at all times while these Terms apply:

(i)  all transactions it undertakes with SFI (including those under which security interests arise) pursuant to the terms of these Terms are permitted by the terms of the trust;
(ii)  it has the right to be fully indemnified out of trust property for obligations owed to SFI pursuant to the terms of these Terms and the trust property is sufficient to satisfy that right of indemnity and all other obligations for which it is entitled to be indemnified out of trust property; and
(iii)  no action has been taken or proposed to terminate the trust nor has any event for the vesting of trust property occurred;

(c)  the Customer agrees to notify SFI promptly whenever anything happens which would cause any of the warranties in clause 1(b) to be untrue.

25. PARTNERSHIP

If the Customer is a partnership, its partners must:

(a)  not do anything, or permit anything to be done or fail to do anything, which may affect or facilitate the variation or dissolution of the partnership;
(b)  immediately notify SFI if the partnership is varied (including by a partner dying, leaving or joining the partnership) or dissolved; and
(c)  if SFI so requests, use their best endeavours to ensure all partners of any successor partnership sign and deliver to SFI a document (in form and substance satisfactory to SFI) by which they agree the successor partnership is bound by these Terms and by which arrangements satisfactory to SFI are made for the performance by the successor partnership of any obligations outstanding to SFI at the time the partnership was varied or dissolved.

26. NOTICES

26.1  Any notice, demand, approval, request or other communication in relation to these Terms (Notice) will:

(a)  be in writing in English;
(b)  be marked for the attention of the Customer or SFI (as applicable); and
(c)  be given at the recipient’s address by being:

(i)  hand delivered;
(ii)  sent by email; or
(iii)  sent by regular post (or airmail if posted to or from a place outside Australia).

26.2  A Notice is given if it is:

(a)  hand delivered, on the date of delivery;
(b)  sent by email, when the email (including any attachment) is sent to the receiving party at that email address, unless the sending party receives a notification of delivery failure within 24 hours of the email being sent;
(c)  if sent by prepaid mail within Australia, at 9:00am on the sixth Business Day after the date of posting; or
(d)  if sent by airmail, at 9:00am on the 12th Business Day after the date of posting.

26.3  If a Notice is regarded as being given and received on a day that is not a Business Day or after 5:00pm on a Business Day, then the Notice will be deemed as given and received at 9:00am on the next Business Day.

27. General

27.1  The failure by SFI to enforce any provision of these Terms shall not be treated as a waiver of that provision, nor shall it affect SFI’s right to subsequently enforce that provision. If any provision of these Terms is invalid, void, illegal or unenforceable the validity, existence, legality and enforceability of the remaining provisions shall not be affected, prejudiced or impaired.
27.2  These Terms are governed by the laws of the State of Victoria, and are subject to the jurisdiction of the courts in that State.
27.3  SFI may assign or novate all or any part of its rights and obligations under these Terms without the Customer’s consent.
27.4  The Customer must not without SFI’s prior written consent assign or novate all or any part of its rights and obligations under these Terms, which consent will not be unreasonably withheld.
27.5  SFI and the Customer acknowledge and agree that these Terms take precedence over all other conditions of hire and apply to the exclusion of all other documents, prior discussions, representations, understandings and arrangements (written, or oral, express or implied) and other representations (contractual or otherwise), whether or not endorsed, delivered with or referred to in any order or other documents delivered by the Customer to SFI.
27.6  The Customer agrees that SFI may amend these Terms on thirty 30 days’ notice to the Customer and the altered Terms will then:

(a)  apply to orders placed by the Customer after such notice period has elapsed; and
(b)  supersede all previous terms imposed by SFI regarding such orders.

27.7  The Customer acknowledges and agrees that:

(a)  it has satisfied itself that the Equipment and/or Services are suitable for the Customer’s purposes;
(b)  it has not entered into these Terms or any Contract in reliance upon any warranty or representation given by SFI in relation to the Equipment and/or Services; and
(c)  it has the power to enter into these Terms and each Contract and has obtained all necessary authorisations to allow it to do so.

28. Subcontracting

SFI may subcontract the provision of any part or whole of the Services to a related party, associate or third party.

29. Schedule in relation to Vehicle Rental

(a)  A daily allowance of 100km per day per vehicle is included in the daily rental charge.
(b)  Extra Kilometres will be charged at $0.30 per km above the day allowance.
(c)  Administration Recovery will be charged at 3.5% of the rental charge per invoice.
(d)  Tolls and eTags will be charged based on the local applicable rates.
(e)  Damage waiver will be charged at 12.5% of the rental charge per invoice unless a suitable insurance cover along with certificate or currency has been supplied.
(f)  Accident Damage Excess will be applicable and calculated at time of claim.
(g)  Fuel recovery will be charged at $4.24 per litre where the vehicle is not returned full, an allowance of 15km radius of the location of drop off / return pickup.

SFI Australia Trading Terms and Conditions

1. Definitions

“Accepted Order” has the meaning given in clause 2.2.
“Australian Consumer Law” means schedule 2 of the Competition and Consumer Act 2010 (Cth) and any equivalent state or territory legislation.
“Business Day” means any day which is not a Saturday, Sunday or public holiday in Victoria.
“CCA” means the Competition and Consumer Act 2010 (Cth).
“Confidential Information” means confidential information, trade secrets, know-how, scientific, technical, product, market or pricing information relating to the Goods or Services or SFI’s business.
“Contract” means the contract of supply of Goods and/or Services between SFI and the Customer which comprises these Terms, any terms set out in the Credit Application and the Accepted Order for the Goods and/or Services.
“Control” has the meaning given in section 50AA of the Corporations Act 2001 (Cth).
“Credit Application” means a credit application submitted by a Customer in a form approved by SFI.
“Customer” means the individual, body corporate, partnership or body politic (or any of them acting in the capacity as trustee of a trust) which purchases the Goods and/or acquires the Services (as applicable) from SFI pursuant to these Terms, the details of which are as specified in any invoice, Credit Application or Accepted Order.
“Delivery” or “Delivered” has the meaning provided in clause 5.3.
“Goods” means the goods SFI sells to the Customer (as applicable) as set out in an Accepted Order.
“Insolvency Event” in relation to a person means the happening of any of the following events to that person:

(a) they are (or state they are) an insolvent under administration or insolvent (each as defined in the Corporations Act 2001 (Cth)); or
(b) they have had a controller (as defined in the Corporations Act 2001 (Cth)) appointed, are in liquidation, in provisional liquidation, under administration or wound up or have had a receiver or a receiver and manager appointed to any part of their property; or
(c) they are subject to any arrangement, assignment, moratorium or composition, protected from creditors under any statute, or dissolved, (in each case, other than to carry out a reconstruction or amalgamation while solvent on terms approved by SFI); or
(d) an application or order has been made (and, in the case of an application, it is not stayed, withdrawn or dismissed within 30 days), resolution passed, proposal put forward, or any other action taken, in each case in connection with them, which is preparatory to or could result in any of the things referred to in paragraphs (a) to (c) inclusive above; or
(e) they are taken (under section 459F of the Corporations Act 2001 (Cth)) to have failed to comply with a statutory demand or have committed an act of bankruptcy as defined in the Bankruptcy Act 1966 (Cth); or
(f) they are the subject of an event described in section 459C(2)(b) or section 585 of the Corporations Act 2001 (Cth) (or they make a statement from which SFI reasonably deduces they are so subject); or
(g) they are otherwise unable to pay their debts when they fall due; or
(h) something having a substantially similar effect to any of the things referred to above happens in connection with them under the law of any jurisdiction.

“Intellectual Property Rights” means:

(a) inventions, discoveries and novel designs, whether or not registered or registrable as patents or designs, including developments or improvements of equipment, products, technology, processes, methods or techniques;
(b) copyright (including future copyright) throughout the world in all literary works, artistic works, computer software and any other works or subject matter in which copyright subsists and may in the future subsist;
(c) confidential information and trade secrets;
(d) trade and service marks (whether registered or unregistered), business names, trade names, domain names, logos and get-up; and
(e) proprietary rights under the Circuit Layouts Act 1989 (Cth).

“Loss” means any losses, liabilities, damages, costs, interest, charges, fines, penalties or expenses (including lawyer’s fees and expenses on a full indemnity basis) whether direct, indirect, special, consequential or otherwise.
“Price” means the Price payable for the Goods and/or Services in accordance with clause 4.
“Representatives” means officers, directors, employees, agents, representatives, contractors and / or subcontractors of the relevant party but a party to the Contract and its officers, directors, employees, agents, representatives, contractors and subcontractors are not “Representatives” of the other party to the Contract.
“Services” means any services that SFI supplies to the Customer as set out in the Accepted Order.
“SFI” means Orbinox Pty Ltd ACN 154 483 682 trading as SFI, its successors and assigns.
“Terms” means these Trading Terms and Conditions.

2. Order and Acceptance

2.1 Each order placed by the Customer will constitute an offer by the Customer to acquire the Goods from SFI and/or engage SFI to provide the Services on and subject to these Terms.
2.2 SFI may refuse to accept an order, or part of an order, placed by the Customer without giving reasons. On acceptance of an order by SFI (Accepted Order), a separate Contract will be formed between SFI and the Customer.
2.3 The Customer may not, without SFI’s written consent, cancel an order after SFI has accepted the order. If SFI consents to the cancellation of an order, the Customer will be liable for all reasonable costs incurred by SFI up to the time of cancellation.
2.4 The Customer is taken to have accepted and is immediately bound by these Terms if:

(a) the Customer accepts these Terms during the process of submitting its Credit Application (online or otherwise);
(b) the Customer signs these Terms;
(c) the Customer places an order for Goods or Services after receipt of these Terms; or
(d) the Customer accepts delivery of any Goods or Services after receipt of these Terms.

3. Change in Control

3.1 The Customer shall give SFI no less than fourteen (14) days prior written notice of:

(a) any proposed change of Control of the Customer; or
(b) any other change in the Customer’s details most recently provided to SFI (including but not limited to, changes in the Customer’s name, address, contact phone or fax number/s).

3.2 The Customer is liable for any Loss suffered or incurred by SFI as a result of the Customer’s failure to comply with this clause.

4. Price and Payment

4.1 The Price payable by the Customer in connection with any Goods supplied, or Services provided by SFI, shall be either SFI’s quoted price (subject to clause 4.2) which will be valid for the period stated in the quotation or otherwise for a period of thirty (30) days.
4.2 SFI reserves the right to change the Price:

(a) If a variation to an Accepted Order is requested by the Customer, in which case SFI will notify the Customer in writing of the amount of any variation to the Price resulting from the variation (Price Variation). If the Customer does not accept the Price Variation, the Customer may cancel the proposed variation by notifying SFI in writing within 24 hours of receipt of the notice of the Price Variation. If the Customer neither accepts nor rejects the Price Variation, the Accepted Order will remain as is and SFI will proceed to fulfil that order on the basis of the original pricing and scope; or
(b) to reflect any actual increase in the costs and expenses incurred by SFI to supply the Goods or Services to the Customer, including without limitation, fluctuations in the currency exchange rate, or increases to SFI from suppliers in the cost of materials, goods, services, equipment and labour. SFI will provide the Customer with reasonable documentation to substantiate such variations, on request.

4.3 A non-refundable deposit may be required by SFI for purpose built Goods which shall be due and payable within four (4) weeks of placing the order (and in any event prior to delivery of such Goods).
4.4 Time for payment is of the essence. The Price will be payable by the Customer on the date/s determined by SFI, which may be:

(a) for Customers who have not been approved for credit by SFI, either before or on delivery of the Goods or Services; and
(b) for Customers who have been approved for credit by SFI in writing, within thirty (30) days of the date of each tax invoice issued to the Customer, unless otherwise notified by SFI to the Customer in writing.

4.5 Payment may be made by cash, cheque, bank cheque, electronic/on-line banking, credit card excluding Diners Card (plus a surcharge of up to two percent (2%) of the Price on transactions made via American Express), or by any other method that SFI reasonably directs.
4.6 Unless otherwise stated, the Price does not include GST or any other taxes and duties that may be applicable in addition to the Price except where they are expressly included in the Price. Such amounts will be payable by the Customer.
4.7 The Customer must pay all amounts payable to SFI under these Terns without any deduction, withholding, counterclaim or set off.

5. Delivery of Goods and provision of Services

5.1 Unless stated otherwise in the order, the Customer is responsible (at its cost) for collecting the Goods for which there is an Accepted Order from SFI’s premises.
5.2 Where SFI has agreed to deliver the Goods to the Customer’s premises, freight will be on the Customer’s account and added to the Price. The Customer will be responsible for communicating any change of address to the delivery premises prior to the expected delivery time. SFI will endeavour to discuss and agree the freight cost with the Customer before such amounts are incurred, except in circumstances where the Customer requests an urgent or expedited delivery in which case SFI will use all reasonable endeavours to obtain a competitive price for the freight.
5.3 Delivery of the Goods is taken to occur at the time that:

(a) the Customer takes possession of the Goods at SFI’s premises; or
(b) if the Goods are to be delivered to the Customer, at the time that the Goods leave SFI’s premises.

(Delivery or Delivered)

5.4 If the Customer is unable to take Delivery of the Goods as arranged, then SFI may deliver the Goods to a place of storage nominated by the Customer and, failing such nomination, to a place determined by SFI provided that such place is within reasonable proximity to the initial delivery point and provided that SFI notifies the Customer of such location. Such action shall be deemed to be Delivery to the Customer. The Customer shall be liable for all reasonable costs, charges and expenses incurred by SFI in connection with such action.
5.5 SFI will use all commercially reasonable efforts to Deliver all Goods or provide all Services (as applicable) for which there is an Accepted Order by the date (if any) specified in the Accepted Order and in the absence of any date, within a reasonable time.
5.6 The failure of SFI to Deliver the Goods or provide the Services by the date specified in the order does not entitle either party to treat an order or the Contract as repudiated.
5.7 The Customer must still accept Delivery of the Goods or provision of Services even if after the estimated date and, except where SFI’s liability may not be excluded under the Australia Consumer Law, SFI will not be liable for any Loss incurred by the Customer as a result of the Delivery or provision of Services being after the estimated date, other than to refund any Price paid by the Customer where the Goods are not delivered at all / Services are not provided at all.
5.8 The Customer must provide SFI and its Representatives with access to the Customer’s premises or any other location where the Services are to be provided. The Customer must ensure that it complies with all laws concerning occupational health & safety at such premises or site and must provide a safe working environment free from contamination and other hazardous materials to enable SFI to safely and effectively provide the Services. SFI may refuse to provide the Services or suspend the Services at any time if it determines, acting reasonably, that there is any risk of harm or danger to SFI or its Representatives, without liability. The Customer must comply with any reasonable direction or request provided by SFI or its Representatives concerning occupational health or safety at any premises on which the Services are provided.

6. Risk

6.1 Risk in the Goods passes from SFI to the Customer at the time the Goods are Delivered.
6.2 The Customer must insure all Goods for their full replacement if they are sold on credit terms, until such time as the Customer has paid for the Goods in full.
6.3 If any of the Goods are damaged or destroyed following Delivery but prior to title passing to the Customer, the Customer agrees to make an insurance claim in respect of any loss or damage caused to the Goods and pass through all insurance proceeds received to SFI. The production of these Terms by SFI is sufficient evidence of SFI’s right to receive the insurance proceeds without the need for any person dealing with SFI to make further enquiries.
6.4 If the Customer requests that SFI leave any Goods outside SFI’s premises for collection or deliver the Goods to an unattended location, such Goods shall be left at the Customer’s sole risk. The Customer indemnifies SFI for any Loss suffered or incurred by SFI in connection with any request by the Customer to leave the Goods outside SFI’s premises for collection or to deliver the Goods to an unattended location.

7. Title

7.1 SFI and the Customer agree that title to Goods sold to the Customer on credit terms shall not pass to the Customer until the Customer has paid SFI all amounts payable for those Goods and any other money payable to SFI under these Terms.
7.2 It is further agreed that:

(a) until ownership of the Goods sold on credit terms passes to the Customer in accordance with clause 7.1, the Customer is only a bailee of the Goods and must return the Goods to SFI on request;
(b) the Customer holds the benefit of the Customer’s insurance of the Goods on trust for SFI and must pay to SFI the proceeds of any insurance claim in the event of the Goods being lost, damaged or destroyed;
(c) the Customer must not sell, dispose of, deal with or otherwise part with possession of any Goods it purchases from SFI on credit terms subject to retention of title other than in the ordinary course of its ordinary business and for market value;
(d) the Customer:

(i) irrevocably authorises SFI to enter any premises where SFI believes the Goods are kept and recover possession of the Goods in circumstances where these Terms permit such recovery of possession; and
(ii) undertakes to obtain all third party consents and authorisations necessary for SFI to do so;

(e) at any time SFI may recover possession of any Goods in transit to the Customer;
(f) while title to the Goods remains with SFI under these Terms, the Customer must not grant or permit to exist:

(i) an encumbrance over the Goods (including any security interest for PPSA purposes) other than that in favour of SFI); or
(ii) any third party interest in the Goods; and

(g) SFI may commence proceedings to recover the Price of the Goods sold notwithstanding that ownership of the Goods has not passed to the Customer.

8. Personal Property Securities Act 2009 (“PPSA”)

8.1 In this clause 8, the expressions financing statement, financing change statement, security agreement, verification statement and security interest each have the meaning given to it in the PPSA and PPSR means the Personal Property Securities Register established under the PPSA.
8.2 By agreeing to these Terms, the Customer acknowledges and agrees that these Terms, any terms set out in the Credit Application and each Accepted Order (including Goods sold on credit terms to the Customer) constitutes a security agreement for the purposes of the PPSA where a transaction contemplated by these Terms creates a security interest in the relevant Goods.
8.3 The Customer undertakes to promptly sign any further documents and/or provide any further information (such information to be complete, accurate and up-to-date in all respects) which SFI may reasonably require to:

(a) prepare and register on the PPSR a financing statement or financing change statement in relation to a security interest granted by the Customer to SFI or give any notification in connection with such a security interest;
(b) correct a defect in a financing statement or a financing change statement referred to in clause 8.3(a);
(c) ensure any security interest granted by the Customer to SFI is at all times perfected, enforceable and has first ranking priority;
(d) enable SFI to exercise any of its rights or perform any of its obligations in connection with any security interest granted by the Customer to SFI; and
(e) indemnify, and upon demand reimburse, SFI for all expenses incurred in registering a financing statement or a financing change statement (including to release Goods from a security interest).

8.4 The Customer waives their rights to receive notices under sections 95, 118, 121(4) and 130 of the PPSA.
8.5 The Customer waives their rights as a grantor and/or a debtor under sections 132(3)(d), 132(4), 142 and 143 of the PPSA.
8.6 Unless otherwise agreed to in writing by SFI, the Customer waives their right to receive any notice of verification statement in connection with any security interest in favour of SFI.
8.7 Subject to the express provisions to the contrary in clauses 8.4 to 8.6 inclusive, nothing in these Terms is intended to have the effect of contracting out of any of the provisions the PPSA.

9. Security and Charge

9.1 In consideration of SFI agreeing to supply the Goods, the Customer charges all of its rights, title and interest (whether joint or several) in any land, realty or other assets capable of being charged, owned by the Customer either now or in the future, to secure the performance by the Customer of its obligations under these Terms (including, but not limited to, the payment of any money).
9.2 The Customer indemnifies SFI from and against all SFI’s costs and disbursements including legal costs on a solicitor and own Customer basis incurred in exercising SFI’s rights under this clause.
9.3 The Customer irrevocably appoints SFI and each director of SFI as the Customer’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 Customer’s behalf.

10. Defects & Limitation of Liability

The Customer must inspect the Goods on Delivery and must within seven (7) Business Days of Delivery notify SFI in writing of any defect, damage, shortage in quantity, or failure to comply with the description or quote. The Customer must notify any other alleged defect in the Goods as soon as reasonably possible after any such defect becomes evident. Upon such notification the Customer must allow SFI to inspect the Goods.
10.1 Limitation of liability – Non-Excludable Rights

(a) The Customer may have rights under the Australian Consumer Law or other rights in relation to the supply of Goods and/or provision of Services that cannot lawfully be excluded by SFI (Non-Excludable Rights).
(b) To the extent permitted by law, SFI’s liability in respect of any Non-Excludable Right is limited, at SFI’s option, in the case of Goods, to repair or replacement of the Goods or the cost of repairing or replacing the Goods, and in the case of Services, to supplying the Services again or paying the cost of having the Services resupplied.

Limitation of lability – other

(a) Except as expressly set out in these Terms or in respect of the Non- Excludable Rights, the liability of SFI to the Customer, whether arising under or in connection with these Terms or the performance or non-performance thereof or anything incidental thereto, and whether by way of indemnity, by statute (to the extent that it is possible to exclude such liability), in tort for negligence or otherwise, or on any other basis in law or equity is hereby:

(i) limited to the value of any express warranty or warranty card provided to the Customer by SFI (if any);
(ii) limited to any warranty to which SFI is entitled, if SFI did not manufacture the Goods; and
(iii) otherwise excluded absolutely.

(b) In addition, other than in respect of any Non-Excludable Right, SFI excludes all liability to the Customer for the loss of use, production, profit, revenue, business, data, contract or anticipated saving, or for any financing costs or increase in operating costs or any economic loss or for any special, indirect or consequential loss or damage.
(c) Subject to any rights the Customer may have in respect of Non-Excludable Rights, SFI shall not be liable for any defect or damage which may be caused or partly caused by or arise as a result of:

(i) the Customer failing to properly maintain or store any Goods;
(ii) the Customer using the Goods for any purpose other than that for which they were designed;
(iii) the Customer continuing to use of any Goods after any defect became apparent or should have become apparent to a reasonably prudent operator or user; or
(iv) the Customer failing to follow any instructions or guidelines provided by SFI.

11. Returns

11.1 Subject to any express warranty provided to the Customer in respect of the Goods and clause 10, returns of non-defective Goods will only be accepted by SFI where:

(a) the Customer has strictly followed any instructions provided by SFI regarding the return of the Goods;
(b) a copy of the invoice is enclosed with the returned Goods;
(c) the Goods are either returned at the Customer’s cost within 14 days of Delivery, of if SFI agrees, are collected by SFI;
(d) the Goods returned are of merchantable and reasonable quality on return;
(e) the Goods are returned in the condition in which they were delivered with all packaging material, brochures and instruction material in as new condition as is reasonably possible; and
(f) the Goods are not purpose built goods.

11.2 Subject to any Non-excludable Rights the Customer has regarding the return of Goods, SFI may accept the returned goods, however, to cover SFI’s costs relating to returned Goods, SFI may require the Customer to pay any reasonable handling fees plus any freight costs.

12. Intellectual Property

12.1 SFI remains the owner or licensee (as the case may be) of all Intellectual Property Rights owned or used by SFI prior to the Contract and any other agreement with the Customer.
12.2 The parties agree that any Intellectual Property Rights created or developed under or in connection with the Contract or in the course of supplying the Goods and/or Services (including any Intellectual Property Rights in Goods which are modified or updated or enhanced by SFI) are owned by SFI. For the avoidance of doubt, where SFI has designed, drawn or developed Goods for the Customer, then the copyright in any designs and drawings and documents shall remain the property of SFI and may only be used by the Customer at SFI’s discretion.
12.3 The Customer warrants that all designs, specifications or instructions given to SFI will not cause SFI to infringe any patent, registered design or trademark in the execution of the Customer’s order and the Customer agrees to indemnify SFI against any action taken by a third party against SFI in respect of any such infringement.
12.4 The Customer agrees that SFI may (at no cost) use for the purposes of marketing or entry into any competition, any documents, designs, drawings or Goods which SFI has created for the Customer.

13. Default and Consequences of Default

13.1 Interest on an amount which is due for payment but is unpaid accrues daily (and will be capitalised monthly) from the date when the amount becomes due, until the date of payment, at a rate of two and a half percent (2.5%) per calendar month (and at SFI’s sole discretion such interest shall compound monthly at such a rate) after as well as before any judgment.
13.2 If the Customer owes SFI any money the Customer shall indemnify SFI from and against all costs and disbursements incurred by SFI in recovering the debt (including but not limited to internal administration fees, legal costs on a solicitor and own Customer basis, SFI’s collection agency costs, and bank dishonour fees).
13.3 Without prejudice to any other remedies SFI may have, if at any time the Customer is in breach of any obligation (including those relating to payment) under these Terms, SFI may suspend or terminate the supply of Goods or Services to the Customer. SFI will not be liable to the Customer for any Loss the Customer suffers because SFI has exercised its rights under this clause.
13.4 Without prejudice to SFI’s other remedies at law, SFI shall be entitled to cancel all or any part of any order of the Customer which remains unfulfilled (including any Accepted Order involving Services to be rendered in the future) and all amounts owing to SFI shall, whether or not due for payment, become immediately payable if any amount payable to SFI becomes overdue by more than 14 days and the Customer has failed to remedy the non-payment despite being notified in writing by SFI, or in SFI’s reasonable opinion, the Customer will be unable to pay the amount when it falls due.

14. Termination

14.1 Either party (Terminating Party) may immediately terminate any Contract on foot by written notice to the other party if the other party (Defaulting Party):

(a) breaches these Terms or the Contract in a material respect and, in the reasonable opinion of the Terminating Party, the breach:

(i) cannot be remedied; or
(ii) can be remedied, but is not remedied by the Defaulting Party within 7 Business Days after the Terminating Party gives the Defaulting Party notice of the breach; or

(b) suffers an Insolvency Event.

14.2 If a Contract is terminated in accordance with clause 14.1, the Customer must, within 7 Business Days after the date of termination:

(a) pay SFI all amounts owing to SFI as at the date of termination (including for the avoidance of doubt any amounts owing in arrears which have accrued but have not yet been paid); and
(b) return all Confidential Information to SFI.

14.3 If a Contract is terminated in accordance with clause 14.1, SFI will have an immediate right to possession of all Goods sold on credit terms which have not been paid for, all amounts owing by the Customer in respect of the Goods, and any other amounts owing by the Customer to SFI (including any amounts owing for the provisions of Services) will become due and payable and must be paid by the Customer on demand by SFI. Further, SFI will be entitled (without prejudice to any other right or remedy provided under these Terms or otherwise) to suspend indefinitely all further deliveries of Goods and/or Services in respect of any Accepted Order, refuse to accept any future orders and cancel any credit facility provided to the customer.

15. Indemnity

15.1 The Customer indemnifies SFI and its Representatives against any Loss which SFI and/or its Representatives suffer, incur or are liable for in connection with:

(a) any negligent act or omission of the Customer or its Representatives;
(b) any breach of these Terms or a Contract by the Customer; or
(c) enforcing any security interest arising under a Contract.

15.2 SFI holds the benefit of the indemnity in clause 15.1 on trust for its Representatives.
15.3 The indemnity in clause 15.1 will not apply to the extent that any Loss is caused or contributed to by SFI’s negligence or wilful misconduct.

16. Force majeure

16.1 If there is any delay or failure in the supply or Delivery of Goods or provision of the Services by SFI due to weather, fire, labour dispute, strike, government direction or order, pandemic, epidemic or any other cause whatsoever beyond SFI’s reasonable control:

(a) SFI is not in breach of these Terms or any Contract by reason of that delay or failure;
(b) SFI’s obligation to supply or Deliver the Goods or provide the Services is suspended for the period of that delay or failure;
(c) if the delay or failure continues for in excess of 30 days, SFI may terminate any Contract by notice in writing to Customer; and
(d) SFI is not liable for any Loss incurred by the Customer by reason of such suspension or termination.

17. Unpaid SFI Rights

17.1 Where the Customer has left any item with SFI for repair, modification, exchange or for SFI to perform any other service in relation to the item and SFI has not received or been tendered the whole of any moneys owing to it by the Customer, SFI shall have, until all moneys owing to SFI 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.

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

18. Building and Construction Industry Security of Payments Act 1999

18.1 At SFI’s sole discretion, if there are any disputes or claims for unpaid Goods and/or Services then the provisions of the Building and Construction Industry Security of Payments Act 2002 may apply.
18.2 Nothing in these Terms is intended to have the effect of contracting out of any applicable provisions of the Building and Construction Industry Security of Payments Act 2002 of Victoria, except to the extent permitted by that Act where applicable.

19. GST

19.1 If any supply by SFI to the Customer under or in connection with these Terms is subject to GST, the Customer must pay to SFI, in addition to the consideration for that supply (unless it expressly includes GST), an amount (additional amount) equal to the amount of the consideration (or its GST exclusive market value) multiplied by the rate at which GST is imposed in respect of the supply. The Customer must pay the additional amount to SFI at the same time as the consideration for the supply is payable.
19.2 In these Terms, the terms ‘tax invoice’, ‘GST’, and ‘GST exclusive market value’ have the respective meanings given in the A New Tax System (Goods and Services Tax) Act 1999 (Cth) (as amended).

20. DISPUTES

20.1 Any dispute relating to these Terms (Dispute) will be dealt with in accordance with this clause.
20.2 The party claiming the Dispute will give notice of the Dispute to the other party which will include all facts on which that party relies in relation to that Dispute (Dispute Notice).
20.3 Within five Business Days after service of a Dispute Notice, each of the parties’ Representatives will meet at least once to attempt, using their reasonable endeavours, to resolve the Dispute in good faith.
20.4 If the Dispute has not been resolved within 15 Business Days after the service of the Dispute Notice, either party may start mediation by serving a written notice setting out the nature of the dispute, the proposed mediator, venue and attendees (Mediation Notice).
20.5 Within 30 days of the Mediation Notice, the parties must use best endeavours to agree on the mediator, venue and attendees.
20.6 If the parties cannot reach agreement about the mediator, either party may refer the matter to the Australian Disputes Centre for the appointment of a mediator.
20.7 Each party must pay an equal share of the mediator’s fees and the mediation venue costs.
20.8 Each party must be represented at the mediation by a person with authority to settle the dispute.
20.9 Any information disclosed in connection with mediation remains confidential and is privileged from disclosure to third parties or in evidence, except to enforce a settlement agreement reached at the mediation.
20.10 Any agreement reached at mediation will not be binding unless it is reduced to writing and signed by the parties.
20.11 A party may not start court proceedings in relation to a Dispute until it has complied with the procedures in this clause, unless it commences legal proceedings to preserve any rights it may have.
20.12 Nothing in this clause prevents a party seeking urgent injunctive or interlocutory relief.
20.13 Notwithstanding the existence of a Dispute, both parties will continue to perform their respective obligations under these Terms.

21. CONFIDENTIAL INFORMATION

21.1 Each party (Recipient) must keep confidential, and not disclose, any Confidential Information of the other party (Discloser) except:

(a) as permitted under these Terms;
(b) with the prior written consent of the Discloser;
(c) where the Recipient is compelled to do so by law, provided that it gives the other party written notice prior to disclosure.

21.2 The Recipient must only use the Confidential Information of the Discloser for the purpose for which it was disclosed and in connection with these Terms.
21.3 The Recipient must:

(a) maintain effective security measures to protect all Confidential Information in the possession or control of the Recipient from unauthorised access, use, copying or disclosure;
(b) notify the Discloser immediately in writing if the Recipient becomes aware of any anticipated, suspected or actual breach of these conditions by the Recipient and take all reasonable steps required to prevent or stop that breach, at the Recipient’s expense; and
(c) reasonably assist the Discloser in connection with any action or investigation by the Discloser regarding any anticipated, suspected or actual unauthorised disclosure or misuse of the Confidential Information by the Recipient.

22. TRUST

22.1 If the Customer is the trustee of a trust:

(a) the Customer is bound by these Terms and grants any security interest (for PPSA purposes) in the Goods in its personal capacity and in its capacity as trustee of the trust;

(b) the Customer warrants that at all times while these Terms apply;

(i) all transactions it undertakes with SFI (including those under which security interests arise) pursuant to the terms of these Terms are permitted by the terms of the trust;
(ii) it has the right to be fully indemnified out of trust property for obligations owed to SFI pursuant to the terms of these Terms and the trust property is sufficient to satisfy that right of indemnity and all other obligations for which it is entitled to be indemnified out of trust property; and
(iii) no action has been taken or proposed to terminate the trust nor has any event for the vesting of trust property occurred;

(c) the Customer agrees to notify SFI promptly whenever anything happens which would cause any of the warranties in clause 22.1(b) to be untrue.

23. PARTNERSHIP

If the Customer is a partnership, its partners must:

(a) not do anything, or permit anything to be done or fail to do anything, which may affect or facilitate the variation or dissolution of the partnership;
(b) immediately notify SFI if the partnership is varied (including by a partner dying, leaving or joining the partnership) or dissolved; and
(c) if SFI so requests, use their best endeavours to ensure all partners of any successor partnership sign and deliver to SFI a document (in form and substance satisfactory to SFI) by which they agree the successor partnership is bound by these Terms and by which arrangements satisfactory to SFI are made for the performance by the successor partnership of any obligations outstanding to SFI at the time the partnership was varied or dissolved.

24. NOTICES

24.1 Any notice, demand, approval, request or other communication in relation to these Terms (Notice) will:

(a) be in writing in English;
(b) be marked for the attention of the Customer or SFI (as applicable); and
(c) be given at the recipient’s address by being:

(i) hand delivered;
(ii) sent by email; or
(iii) sent by regular post (or airmail if posted to or from a place outside Australia).

24.2 A Notice is given if:

(a) hand delivered, on the date of delivery;
(b) sent by email, when the email (including any attachment) is sent to the receiving party at that email address, unless the sending party receives a notification of delivery failure within 24 hours of the email being sent;
(c) if sent by prepaid mail within Australia, at 9:00am on the sixth Business Day after the date of posting; or
(d) if sent by airmail, at 9:00am on the 12th Business Day after the date of posting.

24.3 If a Notice is regarded as being given and received on a day that is not a Business Day or after 5:00pm on a Business Day, then the Notice will be deemed as given and received at 9:00am on the next Business Day.

25. General

25.1 The failure by SFI to enforce any provision of these Terms shall not be treated as a waiver of that provision, nor shall it affect SFI’s right to subsequently enforce that provision. If any provision of these Terms shall be invalid, void, illegal or unenforceable the validity, existence, legality and enforceability of the remaining provisions shall not be affected, prejudiced or impaired.
25.2 These Terms shall be governed by the laws of the State of Victoria, and are subject to the jurisdiction of the courts in that State.
25.3 SFI may assign or novate all or any part of its rights and obligations under these Terms without the Customer’s consent.
25.4 The Customer must not without SFI’s prior written consent assign or novate all or any part of its rights and obligations under these Terms, which consent will not be unreasonably withheld
25.5 SFI and the Customer acknowledge and agree that these Terms take precedence over all other conditions of supply of goods and/or Services and applies to the exclusion of all other documents, prior discussions, representations, understandings and arrangements (written, or oral, express or implied) and other representations (contractual or otherwise), whether or not endorsed, delivered with or referred to in any order or other documents delivered by the Customer to SFI.
25.6 The Customer agrees that SFI may amend these Terms on thirty 30 days’ notice and the altered Terms shall then:

(a) apply to orders placed by the Customer after such notice period has elapsed; and
(b) supersede all previous terms imposed by SFI regarding such orders.

25.7 The Customer acknowledges and agrees that:

(a) it has satisfied itself that the Goods and/or Services are suitable for the Customer’s purposes;
(b) it has not entered into these Terms or any Contract in reliance upon any warranty or representation given by SFI in relation to the Goods and/or Services; and
(c) it has the power to enter into these Terms and each Contract and has obtained all necessary authorisations to allow it to do so.

26. Subcontracting

SFI may subcontract the provision of any part or whole of the Services to a related party, associate or third party.