1.1 “Contract” means the terms and conditions contained herein, together with any Quotation, order, invoice or other document or amendments expressed to be supplemental to this Contract.
1.2 “Supplier” means Portable Bathroom Solutions Australia Pty Ltd ATF Portable Bathroom Solutions Trust T/A Brisbane Bathroom Hire, its successors and assigns or any person acting on behalf of and with the authority of Portable Bathroom Solutions Australia Pty Ltd ATF Portable Bathroom Solutions Trust T/A Brisbane Bathroom Hire
1.3 “Client” means the person/s, entities or any person acting on behalf of and with the authority of the Client requesting the Supplier to provide the services 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.
1.4 “Equipment” means all Equipment (including any accessories) supplied on hire by the Supplier to the Client (and where the context so permits shall include any incidental supply of services). The Equipment shall be as described on the invoices, quotation, authority to hire, or any other work authorisation forms as provided by the Supplier to the Client.
1.5 “Minimum Hire Period” means the Minimum Hire Period as described on the invoices, quotation, authority to hire, or any other forms as provided by the Supplier to the Client.
1.6 “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.
1.7 “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.
1.8 “Price” means the cost of the hire of the Equipment (plus any GST where applicable) as agreed between the Supplier and the Client subject to clause 5 of this Agreement.
1.9 “GST” means Goods and Services Tax 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 Equipment.
2.2 In the event of any inconsistency between the terms and conditions of this Agreement and any other prior document or schedule that the parties have entered into, the terms of this Agreement shall prevail.
2.3 Any amendment to the terms and conditions contained in this Agreement may only be amended in writing by the consent of both parties.
2.4 In the event that the Supplier is required to provide the Services urgently, that may require the Supplier’s staff to work outside normal business hours (including but not limited to working through lunch breaks, weekends and/or Public Holidays) then the Supplier reserves the right to charge the Client additional labour costs (penalty rates will apply), unless otherwise agreed between the Supplier and the Client.
2.5 The Client acknowledges and accepts that:
(a) the supply of Equipment on credit shall not take effect until the Client has completed a credit application with the Supplier and it has been approved with a credit limit established for the account; and
(b) in the event that the supply of Equipment request exceeds the Clients credit limit and/or the account exceeds the payment terms, the Supplier reserves the right to refuse Delivery; and
(c) the supply of Equipment for accepted orders may be subject to availability and if, for any reason, Equipment are not or cease to be available, the Supplier reserves the right to vary the Price with alternative Equipment as per clause 5.2, subject to prior confirmation and agreement of both parties. The Supplier also reserves the right to halt all Services until such time as the Supplier and the Client agree to such changes. The Supplier shall not be liable to the Client for any loss or damage the Client suffers due to the Supplier exercising its rights under this clause; and
(d) it is the Client’s responsibility to provide the Supplier with suitable access to the necessary utilities (including, but not limited to water sources, power points and waste points etc.), all times to enable the Supplier to complete the Services. The Client also accepts and acknowledges the Supplier shall be entitled to charge a reasonable fee if any aforementioned utilities require turning on, modification or repair before being connected to the Equipment; and
(e) all persons operating or erecting the Equipment are suitably instructed in its safe and proper use and have been approved to complete the installation of the Equipment by the Supplier in writing.
2.6 Electronic signatures shall be deemed to be accepted by either party providing that the parties have complied with Section 14 of the Electronic Transactions (Queensland) Act 2001 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 the Supplier 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 the Supplier in the formation and/or administration of this Agreement; and/or
(b) contained in/omitted from any literature (hard copy and/or electronic) supplied by the Supplier in respect of the Equipment hire and/or/services.
3.2 In the event such an error and/or omission occurs in accordance with clause 3.1, and is not attributable to the negligence and/or wilful misconduct of the Supplier; the Client shall not be entitled to treat this Agreement as repudiated nor render it invalid.
4. Change in Control
4.1 The Client shall give the Supplier 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 of trustees or business practice). The Client shall be liable for any loss incurred by the Supplier as a result of the Client’s failure to comply with this clause.
5. Price and Payment
5.1 At the Supplier’s sole discretion the Price shall be either;
(a) as indicated on invoices provided by the Supplier to the Client in respect of Equipment supplied on hire; or
(b) the Supplier’s current Price, at the date of Delivery of the Equipment, according to the Supplier’s current price list; or
(c) the Supplier’s quoted Price (subject to clause 5.2) which shall be binding upon the Supplier provided that the Client shall accept in writing the Supplier’s quotation within thirty (30) days.
5.2 The Supplier reserves the right to change the Price:
(a) if a variation to the Equipment which are to be supplied is requested; or
(b) if a variation to the Services originally scheduled (including any applicable plans or specifications) is requested; or
(c) if during the course of the Services, the Equipment are not or cease to be available from the Supplier’s third party suppliers, then the Supplier reserves the right to provide alternative Goods/Equipment; or
(d) where additional Services are required due to the discovery of hidden or unidentifiable difficulties (including, but not limited to, limitations to accessing the site, poor weather conditions, availability of machinery and utilities, safety considerations, prerequisite work by any third party not being completed) which are only discovered on commencement of the Services; or
(e) in the event of increases to the Supplier in the cost of labour or Equipment (including, but not limited to, increases in taxes and levies etc.) which are beyond the Supplier’s control.
5.3 Variations will be charged for on the basis of the Supplier’s quotation, and will be detailed in writing, and shown as variations on the Supplier’s invoice. The Client shall be required to respond to any variation submitted by the Supplier within ten (10) working days. Failure to do so will entitle the Supplier 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.
5.4 At the Supplier’s sole discretion a non-refundable deposit may be required.
5.5 Time for payment for the Equipment being of the essence, the Price will be payable by the Client on the date/s determined by the Supplier, which may be:
(a) on Delivery of the Equipment; or
(b) before Delivery of the Equipment; or
(c) by way of instalments/progress payments in accordance with the Supplier’s payment schedule;
(d) fourteen (14) days following the end of the month in which a statement is posted to the Client’s address or address for notices;
(e) the date specified on any invoice or other form as being the date for payment; or
(f) failing any notice to the contrary, the date which is seven (7) days following the date of any invoice given to the Client by the Supplier.
5.6 Payment may be made by cheque, bank cheque, electronic/on-line banking, credit card (a surcharge per transaction may apply) or by any other method as agreed to between the Client and the Supplier.
5.7 The Supplier may in its discretion allocate any payment received from the Client towards any invoice that the Supplier determines and may do so at the time of receipt or at any time afterwards. On any default by the Client the Supplier may re-allocate any payments previously received and allocated. In the absence of any payment allocation by the Supplier, payment will be deemed to be allocated in such manner as preserves the maximum value of the Supplier’s Purchase Money Security Interest (as defined in the PPSA) in the Equipment.
5.8 The Client shall not be entitled to set off against, or deduct from the Price, any sums owed or claimed to be owed to the Client by the Supplier nor to withhold payment of any invoice because part of that invoice is in dispute.
5.9 Unless otherwise stated the Price does not include GST. In addition to the Price the Client must pay to the Supplier an amount equal to any GST the Supplier must pay for any supply by the Supplier under this or any other Agreement for the hire of the Equipment. 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 Price. In addition, the Client must pay any other taxes and duties that may be applicable in addition to the Price except where they are expressly included in the Price.
5.10 Receipt by the Supplier 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.
6. Hire Period
6.1 The hire period will be the dates specified on any invoice or other form. Collection of all Equipment will occur after 9am of the day of collection unless prior arrangements have been made.
6.2 The Client accepts and acknowledges that the Supplier requires one (1) business days’ notice to end the hire term. The Client also agrees the Supplier reserves the right to collect the Equipment up to five (5) business days after termination of hire.
6.3 Where the Supplier is unable to deliver or collect the Equipment due to the fault of the Client, the Supplier reserves the right to charge additional cost to the Client for redelivery and/or recollection.
6.4 Any labour supplied by the Client to install the Equipment must be made available by the Client for collection of the Equipment at a time that suits the Suppliers order of work for that day.
6.5 No allowance whatsoever can be made for time during which the Equipment is not in use for any reason, unless the Supplier confirms special prior arrangements in writing. In the event of Equipment breakdown provided the Client notifies the Supplier immediately, hiring charges will not be payable during the time the Equipment is not working, unless the condition is due to negligence or misuse on the part of or attributable to the Client.
7.1 Delivery (“Delivery”) of the Equipment is taken to occur at the time that:
(a) the Client or the Client’s nominated carrier takes possession of the Equipment at the Supplier’s premises; or
(b) the Supplier (or the Supplier’s nominated carrier) delivers the Equipment to the Client’s nominated address even if the Client is not present at the address.
7.2 The Client accepts and acknowledges the Client responsibility when arranging delivery to ensure all relevant certificates, licences and compliance are adhered to by the transport company used and where necessary the transport company will hold a current Certificate of Competency and/or are fully licensed to transport the Goods/Equipment and shall provide evidence of the same to the Supplier upon request.
7.3 At the Supplier’s sole discretion the cost of Delivery is either included in the Price or is in addition to the Price.
7.4 The Supplier may deliver the Equipment by separate instalments. Each separate instalment shall be invoiced and paid for in accordance with the provisions in these terms and conditions.
7.5 Any time specified by the Supplier for Delivery of the Equipment is an estimate only and the Supplier 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 Equipment to be supplied at the time and place as was arranged between both parties. In the event that the Supplier is unable to supply the Equipment as agreed solely due to any action or inaction of the Client, then the Supplier shall be entitled to charge a reasonable fee for re-supplying the Equipment at a later time and date, and/or for storage of the Equipment.
8.1 The Client will be and shall remain responsible to the Supplier for all its proper charges incurred for any reason. A charge (in addition to the Price under clause 5.2) may be made by the Supplier in respect of any delay in excess of thirty (30) minutes in loading or unloading occurring other than from the default of the Supplier. Such permissible delay period shall commence upon the Supplier reporting for loading or unloading.
8.2 The Client accepts any extra time required for the installation/collection of the Equipment may be charged out in fifteen (15) minute increments as per the Supplier’s current pricing schedule.
9.1 The Supplier retains property in the Equipment nonetheless all risk for the Equipment passes to the Client on Delivery.
9.2 The Client accepts full responsibility for the safekeeping of the Equipment and indemnifies the Supplier for all loss, theft, or damage to the Equipment 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.
9.3 The Client will insure, or self-insure, the Supplier’s interest in the Equipment 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 affect adequate Public Liability Insurance covering any loss, damage or injury to property arising out of the Equipment. Further the Client will not use the Equipment nor permit it to be used in such a manner as would permit an insurer to decline any claim.
9.4 The Client accepts full responsibility for and shall keep the Supplier 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 Equipment during the hire period and whether or not arising from any negligence, failure or omission of the Client or any other persons.
9.5 The Supplier reserves the right to refuse installation of the Equipment if they deem the site to be unsafe, unsuitable, insecure, undesirable or if the Client believes the Equipment will be damaged or misused by persons onsite behaving in an antisocial, undesirable, uncooperative and/or abusive manner or if persons onsite appear to be under the influence of alcohol and/or drugs.
10.1 The Equipment is and will at all times remain the absolute property of the Supplier, and the Client must return the Equipment to the Supplier upon request to do so.
10.2 If the Client fails to return the Equipment to the Supplier as is required under this Agreement or when requested to do so, then the Supplier or the Supplier’s agent may (as the invitee of the Client) enter upon and into any land and premises owned, occupied or used by the Client, or any premises where the Equipment is situated and take possession of the Equipment, without being responsible for any damage thereby caused. Any costs incurred by the Supplier as a result of the Supplier so repossessing the Equipment shall be charged to the Client.
10.3 The Client is not authorised to pledge the Supplier’s credit for repairs to the Equipment or to create a lien over the Equipment in respect of any repairs.
11. Personal Property Securities Act 2009 (“PPSA”)
11.1 In this clause financing statement, financing change statement, security agreement, and security interest has the meaning given to it by the PPSA.
11.2 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 Equipment that has previously been supplied and that will be supplied in the future by the Supplier to the Client.
11.3 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 the Supplier 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 11.3(a)(i) or 11.3(a)(ii);
(b) indemnify, and upon demand reimburse, the Supplier 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 Equipment charged thereby;
(c) not register a financing change statement in respect of a security interest without the prior written consent of the Supplier;
(d) not register, or permit to be registered, a financing statement or a financing change statement in relation to the Equipment in favour of a third party without the prior written consent of the Supplier.
11.4 The Supplier 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.
11.5 The Client waives their rights to receive notices under sections 95, 118, 121(4), 130, 132(3)(d) and 132(4) of the PPSA.
11.6 The Client waives their rights as a grantor and/or a debtor under sections 142 and 143 of the PPSA.
11.7 Unless otherwise agreed to in writing by the Supplier, the Client waives their right to receive a verification statement in accordance with section 157 of the PPSA.
11.8 The Client must unconditionally ratify any actions taken by the Supplier under clauses 11.3 to 11.5.
11.9 Subject to any express provisions to the contrary (including those contained in this clause 11), nothing in these terms and conditions is intended to have the effect of contracting out of any of the provisions the PPSA.
11.10 Only to the extent that the hire of the Equipment exceeds a two (2) year hire period with the right of renewal shall clause 11 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 11 will apply generally for the purposes of the PPSA.
12. Security and Charge
12.1 In consideration of the Supplier agreeing to supply Equipment, 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).
12.2 The Client indemnifies the Supplier from and against all the Supplier’s costs and disbursements including legal costs on a solicitor and own client basis incurred in exercising the Supplier’s rights under this clause.
12.3 The Client irrevocably appoints the Supplier and each director of the Supplier as the Client’s true and lawful attorney/s to perform all necessary acts to give effect to the provisions of this clause 12 including, but not limited to, signing any document on the Client’s behalf.
13. Defects, Warranties and Returns, Competition and Consumer Act 2010 (CCA)
13.1 The Client must inspect the Equipment on Delivery and must within seven (7) days of Delivery notify the Supplier 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 Equipment as soon as reasonably possible after any such defect becomes evident. Upon such notification the Client must allow the Supplier to inspect the Equipment.
13.2 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).
13.3 The Supplier acknowledges that nothing in these terms and conditions purports to modify or exclude the Non-Excluded Guarantees.
13.4 Except as expressly set out in these terms and conditions or in respect of the Non-Excluded Guarantees, the Supplier makes no warranties or other representations under these terms and conditions including but not limited to the quality or suitability of the Equipment. The Supplier’s liability in respect of these warranties is limited to the fullest extent permitted by law.
13.5 If the Client is a consumer within the meaning of the CCA, the Supplier’s liability is limited to the extent permitted by section 64A of Schedule 2.
13.6 If the Supplier is required to rectify, re-supply, or pay the cost of re-supplying any services or Equipment under this clause or the CCA, but is unable to do so, then the Supplier may refund any money the Client has paid for the services or Equipment but only to the extent that such refund shall take into account the value of any services or Equipment and consumables which have been provided to the Client which were not defective.
13.7 If the Client is not a consumer within the meaning of the CCA, the Supplier’s liability for any defect or damage in the services or Equipment is:
(a) limited to the value of any express warranty or warranty card provided to the Client by the Supplier at the Supplier’s sole discretion;
(b) limited to any warranty to which the Supplier is entitled, if the Supplier did not manufacture the Equipment;
(c) otherwise negated absolutely.
13.8 Notwithstanding clauses 13.1 to 13.7 but subject to the CCA, the Supplier 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 any Equipment;
(b) the Client interfering with the Equipment in any way without the Supplier’s written approval to do so;
(c) the Client using the Equipment for any purpose other than that for which it was designed;
(d) the Client continuing the use of the Equipment after any defect became apparent or should have become apparent to a reasonably prudent operator or user;
(e) the Client failing to follow any instructions or guidelines provided by the Supplier;
(f) fair wear and tear, any accident, or act of God.
14. Client’s Responsibilities
14.1 The Client shall:
(a) maintain the Equipment as is required by the Supplier;
(b) notify the Supplier immediately by telephone of the full circumstances of any mechanical breakdown or accident. The Client is not absolved from the requirements to safeguard the Equipment by giving such notification;
(c) satisfy itself at commencement that the Equipment is suitable for its purposes;
(d) operate the Equipment safely, strictly in accordance with the law, only for its intended use, and in accordance with any manufacturer’s instruction whether supplied by the Supplier or posted on the Equipment;
(e) ensure that all persons operating or erecting the Equipment are suitably instructed in its safe and proper use;
(f) comply with all work health and safety laws relating to the Equipment and its operation;
(g) on the collection of the Goods/Equipment ensure all parts and accessories are clean and in good order as when delivered and fair wear and tear is acceptable to the Supplier;
(h) keep the Equipment in their own possession and control and shall not assign the benefit of the hire Contract nor be entitled to lien over the Equipment;
(i) not alter or make any additions to the Equipment including but without limitation altering, make any additions to, defacing or erasing any identifying mark, plate or number on or in the Equipment or in any other manner interfere with the Equipment;
(j) employ the Equipment solely in its own work and shall not permit the Equipment 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 Equipment;
(l) not use or carry any illegal, prohibited or dangerous substance in or on the Equipment;
(m) not fix any of the Equipment in such a manner as to make it legally a fixture forming part of any freehold;
14.2 Immediately on request by the Supplier the Client will pay:
(a) the new list price of any Equipment that is for whatever reason destroyed, written off or not returned to the Supplier;
(b) all costs incurred in cleaning the Equipment;
(c) all costs of repairing any damage caused by the ordinary use of the Equipment up to an amount equal to ten percent (10%) of the new list price of the Equipment;
(d) the cost of repairing any damage to the Equipment caused by the negligence of the Client or the Client’s agent;
(e) any lost hire fees the Supplier would have otherwise been entitled to for the Equipment, under this, or any other hire Contract;
(f) the cost of repairing any damage to the Equipment caused by vandalism, or (in the Supplier’s reasonable opinion) in any way whatsoever other than by the ordinary use of the Equipment by the Client;
(g) the cost of fuels and consumables provided by the Supplier and used by the Client.
15.1 Without prejudice to any other remedies the Supplier may have, if at any time the Client is in breach of any obligation (including those relating to payment) under these terms of hire the Supplier may repossess the Equipment as per clause 10.2, or suspend or terminate the supply of Equipment to the Client and any of its other obligations under the terms and conditions. The Supplier will not be liable to the Client for any loss or damage the Client suffers because the Supplier has exercised its rights under this clause.
15.2 The Supplier may cancel these terms and conditions or cancel Delivery of Equipment at any time before the Equipment is delivered by giving written notice to the Client. On giving such notice the Supplier shall repay to the Client any sums paid in respect of the Price. The Supplier shall not be liable for any loss or damage whatsoever arising from such cancellation.
15.3 In the event that the Client cancels Delivery of the Equipment the Client shall be liable for any and all loss incurred (whether direct or indirect) by the Supplier as a direct result of the cancellation (including, but not limited to, any loss of profits).
16. Default and Consequences of Default
16.1 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 one half percent (2.5%) per calendar month (and at the Supplier’s sole discretion such interest shall compound monthly at such a rate) after as well as before any judgment.
16.2 If the Client owes the Supplier any money the Client shall indemnify the Supplier from and against all costs and disbursements incurred by the Supplier in recovering the debt (including but not limited to internal administration fees, legal costs on a solicitor and own client basis, the Supplier’s contract default fee, and bank dishonour fees).
16.3 Further to any other rights or remedies the Supplier may have under this Agreement, if the Client has made payment to the Supplier, 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 the Supplier under this clause 16 where it can be proven that such reversal is found to be illegal, fraudulent or in contravention to the Client’s obligations under this Agreement.
16.4 Without prejudice to the Supplier’s other remedies at law the Supplier shall be entitled to cancel all or any part of any order of the Client which remains unperformed and all amounts owing to the Supplier shall, whether or not due for payment, become immediately payable in the event that:
(a) any money payable to the Supplier becomes overdue, or in the Supplier’s opinion the Client will be unable to meet its payments as they fall due; or
(b) the Client has exceeded any applicable credit limit provided by the Supplier;
(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.
17.1 All emails, documents, images or other recorded information held or used by the Supplier is Personal Information, as defined and referred to in clause 17.3, and therefore considered Confidential Information. The Supplier 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”). The Supplier acknowledges that in the event it becomes aware of any data breaches and/or disclosure of the Clients Personal Information, held by the Supplier that may result in serious harm to the Client, the Supplier 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.
17.2 Notwithstanding clause 17.1, privacy limitations will extend to the Supplier in respect of Cookies where transactions for purchases/orders transpire directly from the Supplier’s website. The Supplier 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 the Supplier when the Supplier sends an email to the Client, so the Supplier 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 the Supplier’s website.
17.3 The Client agrees for the Supplier 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 the Supplier.
17.4 The Client agrees that the Supplier 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 (2) years.
17.5 The Client consents to the Supplier being given a consumer credit report to collect overdue payment on commercial credit.
17.6 The Client agrees that personal credit information provided may be used and retained by the Supplier for the following purposes (and for other agreed purposes or required by):
(a) the provision of Goods/Equipment; and/or
(b) analysing, verifying and/or checking the Client’s credit, payment and/or status in relation to the provision of Goods/Equipment; 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/Equipment.
17.7 The Supplier 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.
17.8 The information given to the CRB may include:
(a) Personal Information as outlined in 17.3 above;
(b) name of the credit provider and that the Supplier 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 the Supplier has been paid or otherwise discharged and all details surrounding that discharge(e.g. dates of payments);
(g) information that, in the opinion of the Supplier, 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).
17.9 The Client shall have the right to request (by e-mail) from the Supplier:
(a) a copy of the Personal Information about the Client retained by the Supplier and the right to request that the Supplier correct any incorrect Personal Information; and
(b) that the Supplier does not disclose any Personal Information about the Client for the purpose of direct marketing.
17.10 The Supplier 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 Contract or is required to be maintained and/or stored in accordance with the law.
17.11 The Client can make a privacy complaint by contacting the Supplier via e-mail. The Supplier 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 www.oaic.gov.au.
18. Dispute Resolution
18.1 If a dispute arises between the parties to this contract then either party shall send to the other party a notice of dispute in writing adequately identifying and providing details of the dispute. Within fourteen (14) days after service of a notice of dispute, the parties shall confer at least once, to attempt to resolve the dispute. At any such conference each party shall be represented by a person having authority to agree to a resolution of the dispute. In the event that the dispute cannot be so resolved either party may by further notice in writing delivered by hand or sent by certified mail to the other party refer such dispute to arbitration. Any arbitration shall be:
(a) referred to a single arbitrator to be nominated by the President of the Institute of Arbitrators Australia; and
(b) conducted in accordance with the Institute of Arbitrators Australia Rules for the Conduct of Commercial Arbitration.
19. Service of Notices
19.1 Any written notice given under this Agreement 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 Agreement;
(c) by sending it by registered post to the address of the other party as stated in this Agreement;
(d) if sent by facsimile transmission to the fax number of the other party as stated in this Agreement (if any), on receipt of confirmation of the transmission;
(e) if sent by email to the other party’s last known email address.
19.2 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.
20.1 If the Client at any time upon or subsequent to entering in to the Agreement is acting in the capacity of trustee of any Trust (“Trust”) then whether or not the Supplier may have notice of the Trust, the Client covenants with the Supplier as follows:
(a) the Agreement 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 Agreement 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 the Supplier (the Supplier 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.
21.1 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.
21.2 These terms and conditions and any Agreement to which they apply shall be governed by the laws of Queensland, the state in which the Supplier has its principal place of business, and are subject to the jurisdiction of the courts in that state.
21.3 Subject to clause 13, the Supplier 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 the Supplier of these terms and conditions (alternatively the Supplier’s liability shall be limited to damages which under no circumstances shall exceed the Price).
21.4 The Supplier may licence and/or assign all or any part of its rights and/or obligations under this Agreement without the Client’s consent.
21.5 The Client cannot assign or licence without the written approval of the Supplier.
21.6 The Supplier may elect to subcontract out any part of the provision services but shall not be relieved from any liability or obligation under this Agreement by so doing. Furthermore, the Client agrees and understands that they have no authority to give any instruction to any of the Supplier’s sub-contractors without the authority of the Supplier.
21.7 The Client agrees that the Supplier may amend their general terms and conditions for subsequent future Agreements with the Client by disclosing such to 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 the Supplier to provide Equipment on hire to the Client..
21.8 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.
21.9 Both parties warrant that they have the power to enter into this Agreement and have obtained all necessary authorisations to allow them to do so, they are not insolvent and that this Agreement creates binding and valid legal obligations on them.