1. Definitions
   • “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.
   • “Contractor” means Award Scaffolding Pty Ltd T/A Award Scaffolding its successors and assigns or any person acting on behalf of and with the authority of Award Scaffolding Pty Ltd T/A Award Scaffolding.
   • “Client” means the person/s, entities or any person acting on behalf of and with the authority of the Client requesting the Contractor to provide the Services as specified in any proposal, quotation, order, invoice or other documentation, and:
     • if there is more than one Client, is a reference to each Client jointly and severally; and
     • if the Client is a partnership, it shall bind each partner jointly and severally; and
     • if the Client is a part of a Trust, shall be bound in their capacity as a trustee; and
     • includes the Client’s executors, administrators, successors and permitted assigns.
   • “Equipment” shall mean all Equipment, including any accessories supplied on hire by the Contractor to the Client and:
     • includes any erection, dismantling and transport of the Equipment (“Services”), any parts, accessories and/or consumables supplied by the Contractor to the Client, either separately or deposited incidentally by the Contractor in the course of it conducting, or supplying to the Client, the Equipment; and
     • where the context so permits the terms ‘Equipment’ or ‘Services’ shall be interchangeable for the other.

The Equipment shall be as described on the invoices, quotation, authority to hire, or any other work authorisation form provided by the Contractor to the Client.

• “Worksite” means the address nominated by the Client to which the Equipment is to be supplied, erected and/or dismantled by the Contractor.
• “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 Contractor to the Client.
• “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.
• “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 using the Contractor’s 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 making enquiries via the website.
• “Price” means the price payable (plus any GST where applicable) for the Services as agreed between the Contractor and the Client in accordance with clause 6 of this Contract.
• “GST” means Goods and Services Tax as defined within the “A New Tax System (Goods and Services Tax) Act 1999” (Cth).

2. Acceptance
   • 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 Services provided by the Contractor.
   • In the event of any inconsistency between the terms and conditions of this Contract and any other prior document or schedule that the parties have entered into, the terms of this Contract shall prevail.
   • Any amendment to the terms and conditions contained in this Contract may only be amended in writing by the consent of both parties.
   • The Client acknowledges that:
     • the supply of Equipment or Services on credit shall not take effect until the Client has completed a credit application with the Contractor and it has been approved with a credit limit established for the account; and
     • in the event that the supply of Equipment or Services request exceeds the Client’s credit limit and/or the account exceeds the payment terms, the Contractor reserves the right to refuse delivery; and
     • the product supply of shrink-wrap offers a manufacturer’s guarantee of UV protection and can withstand up to the manufacturers specified tolerance and/or Bureau of Meteorology definition regarding gale force winds, being winds of up to 63-75kph; and
     • following the handover of the certified Equipment to the Client, it shall be the Client’s responsibility to check the Equipment before each use. If the Equipment is deemed to be damaged, altered or appears unsafe it should not be used and the Contractor is to be notified; and
     • the Contractor reserves the right to remove the Equipment without prejudice should the Equipment be considered to be unsafe due to washout and/or erosion, upon such action this shall not be deemed to be a breach of Contract. The Contractor will not accept any claim for in respect of any consequential loss to the Client that may result from such an event.
   • In the event that the Contractor is required to provide the Services urgently, that may require the Contractor’s staff to work outside their normal business hours (including, but not limited to, down time, working through lunch breaks, weekends and/or Public Holidays) then the Contractor reserves the right to charge the Client additional labour costs (penalty rates will apply), unless otherwise agreed between the Contractor and the Client.
   • Where the Contractor gives any advice, recommendation, information, assistance or service provided by the Contractor in relation to Equipment or Services supplied is given in good faith to the Client or the Client’s agent and is based on the Contractor’s own knowledge and experience and shall be accepted without liability on the part of the Contractor. Where such advice or recommendations are not acted upon then the Contractor shall require the Client or their agent to authorise commencement of the Services in writing. The Contractor shall not be liable in any way whatsoever for any damages or losses that occur after any subsequent commencement of the Services.
   • None of the Equipment shall be sublet or cross-hired by the Client. The Client shall not assign or transfer its interest in the Contract, or part with possession of all, or any portion, of the Equipment, without the prior written consent of the Contractor, which may be arbitrarily withheld.
   • The Client acknowledges and accepts that 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 Contractor reserves the right to vary the Price with alternative Equipment as per clause 2.
   • Electronic signatures shall be deemed to be accepted by either party providing that the parties have complied with Section 9 of the Electronic Transactions Act 2000 or any other applicable provisions of that Act or any Regulations referred to in that Act.

3. Authorised Representatives
   • Unless otherwise limited as per clause 2, the Client agrees that should the Client introduce any third party to the Contractor as the Client’s duly authorised representative, that once introduced that person shall have the full authority of the Client to order any Equipment or Service, and/or to request any variation thereto, on the Client’s behalf (such authority to continue until all requested Equipment has been returned to the Contractor, or the Client otherwise notifies the Contractor in writing that said person is no longer the Client’s duly authorised representative).
   • In the event that the Client’s duly authorised representative as per clause 1 is to have only limited authority to act on the Client’s behalf, then the Client must specifically and clearly advise the Contractor in writing of the parameters of the limited authority granted to their representative.
   • The Client specifically acknowledges and accepts that they will be solely liable to the Contractor for all additional costs incurred by the Contractor (including the Contractor’s profit margin) in providing any Equipment or Services, or variation/s thereto, requested by the Client’s duly authorised representative (subject always to the limitations imposed under clause 2 (if any)).

4. Errors and Omissions
   • The Client acknowledges and accepts that the Contractor shall, without prejudice, accept no liability in respect of any alleged or actual error(s) and/or omission(s):
     • resulting from an inadvertent mistake made by the Contractor in the formation and/or administration of this Contract; and/or
     • contained in/omitted from any literature (hard copy and/or electronic) supplied by the Contractor in respect of the Services.
   • In the event such an error and/or omission occurs in accordance with clause 1, and is not attributable to the negligence and/or wilful misconduct of the Contractor; the Client shall not be entitled to treat this Contract as repudiated nor render it invalid.

5. Change in Control
   • The Client shall give the Contractor 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 Contractor as a result of the Client’s failure to comply with this clause.

6. Price and Payment
   • At the Contractor’s sole discretion the Price shall be either:
     • as indicated on any invoice provided by the Contractor to the Client; or
     • the Contractor’s quoted price (subject to clause 2) which will be valid for the period stated in the quotation or otherwise for a period of thirty (30) days.
   • The Contractor reserves the right to change the Price:
     • if a variation to the Equipment which is to be supplied is requested (including, but not limited to, if the returned quantities is less than the quantities originally supplied, etc.); or
     • if a variation to the Services originally scheduled (including any applicable plans, erection and dismantle charges, Worksite requirements or specifications) is requested; or
     • where additional Equipment or Services are required due to the discovery of hidden or unidentifiable difficulties (including, but not limited to, poor weather/environmental conditions, limitations to accessing the Worksite, availability of machinery, any subsidence of ground conditions, protruding or dismantled formwork, repositioning or adjusting the Equipment, due to sub-contractor’s moving planks, additional Worksite visits required, safety considerations (e.g. overhead hazards, etc.), any relocation and/or alteration to working platforms, ties and/or hop up brackets (or the Equipment entirely), additional transport (charged per load, each way), additional ladder access towers, stairs or loading bays or prerequisite work by any third party not being completed substantially or at all, etc.) which are only discovered on commencement of the Services; and
     • if during the course of the Services, the Equipment are not or cease to be available from the Contractor’s third party suppliers, then the Contractor reserves the right to provide alternative Equipment; or
     • in the event of increases to the Contractor in the cost of labour or materials which are beyond the Contractor’s control.
   • Variations will be charged for on the basis of the Contractor’s quotation, and will be detailed in writing, and shown as variations on the Contractor’s invoice. The Client shall be required to respond to any variation submitted by the Contractor within ten (10) working days. Failure to do so will entitle the Contractor 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.
   • At the Contractor’s sole discretion a non-refundable deposit may be required.
   • Time for payment for the Services being of the essence, the Price will be payable by the Client on the date/s determined by the Contractor, which may be:
     • on or before delivery of the Equipment; or
     • on completion of the Services;
     • by way of instalments/progress payments in accordance with the Contractor’s payment schedule;
     • for approved credit account holders fourteen (14) days following the date of any invoice; or
     • the date specified on any invoice or other form as being the date for payment; or
     • 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 Contractor.
   • Payment may be made by cash, electronic/on-line banking, credit card (a surcharge may apply per transaction), or by any other method as agreed to between the Client and the Contractor.
   • The Contractor may in its discretion allocate any payment received from the Client towards any invoice that the Contractor determines and may do so at the time of receipt or at any time afterwards. On any default by the Client the Contractor may re-allocate any payments previously received and allocated.
   • 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 Contractor nor to withhold payment of any invoice because part of that invoice is in dispute.
   • Unless otherwise stated the Price does not include GST. In addition to the Price, the Client must pay to the Contractor an amount equal to any GST the Contractor must pay for any supply by the Contractor under this or any other agreement for providing the Contractor’s Services. 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.

7. Hire Period
   • Hire charges shall commence from the time the scaffolding either departs from the Contractor’s premises or is delivered to the Worksite, unless otherwise agreed in writing between the Contractor and the Client. The hire period shall continue until the Client advises that the scaffold is “off hired”. In the case where the Client revokes the off hire notice or has continued to use the scaffolding after the off hiring period has occurred then the hire charges shall continue without interruption until the actual end of the Hire Period or until the expiry of the Minimum Hire Period, whichever last occurs.
   • The date upon which the Client advises of termination shall in all cases be treated as a full day’s hire.
   • No allowance whatever can be made for time during which the Equipment is not in use for any reason, unless the Contractor confirms special prior arrangements in writing. In the event of Equipment breakdown provided the Client notifies the Contractor 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.

8. Equipment Hire
   • Equipment shall at all times remain the property of the Contractor and is returnable on demand by the Contractor. In the event that Equipment is not returned to the Contractor in the condition in which it was delivered the Contractor retains the right to charge the Client the full cost of repairing the Equipment. In the event that Equipment is not returned at all the Contractor shall have right to charge the Client the full cost of replacing the Equipment.
   • The Client shall:
     • keep the Equipment in their own possession and control and shall not assign the benefit of the Equipment nor be entitled to a lien over the Equipment;
     • 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;
     • keep the Equipment, complete with all parts and accessories, clean and in good order as delivered, and shall comply with any maintenance schedule as advised by the Contractor to the Client.
   • The Client accepts full responsibility for the safekeeping of the Equipment and the Client agrees to insure, or self-insure, the Contractor’s interest in the Equipment and agrees to indemnify the Contractor 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 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.
   • Notwithstanding the above clause, immediately on request by the Contractor the Client will pay:
     • any lost hire charges the Contractor would have otherwise been entitled to for the Equipment, under this, or any other hire agreement;
     • any insurance excess payable in relation to a claim made by either the Client or the Contractor in relation to any damage caused by, or to, the hire Equipment whilst the same is hired by the Client and irrespective of whether charged by the Client’s insurers or the Contractor’s.
   • Return of the Equipment (“Return”) will be completed when:
     • the Equipment is returned by the Client to the Contractor’s place of business; or
     • when the Contractor takes back possession of the Equipment once collection by the Contractor is affected.

9. Provision of the Services
   • Subject to clause 2 it is the Contractor’s responsibility to ensure that the Services start as soon as it is reasonably possible.
   • The Services’ commencement date will be put back and the completion date extended by whatever time is reasonable in the event that the Contractor claims an extension of time (by giving the Client written notice) where completion is delayed by an event beyond the Contractor’s control, including but not limited to any failure by the Client to:
     • make a selection; or
     • have the Worksite ready for the Services; or
     • notify the Contractor that the Worksite is ready.
   • Delivery (“Delivery”) of the Equipment is taken to occur at the time that:
     • the Client or the Client’s nominated carrier takes possession of the Equipment at the Contractor’s address; or
     • the Contractor (or the Contractor’s nominated carrier) delivers the Equipment to the Client’s nominated address even if the Client is not present at the address.
   • At the Contractor’s sole discretion the cost of delivery is either included in the Price or is in addition to the Price.
   • The Contractor may deliver the Services by separate instalments. Each separate instalment shall be invoiced and paid for in accordance with the provisions in these terms and conditions.
   • The Client must take Delivery by receipt or collection of the Equipment whenever either is tendered for Delivery. In the event that the Client is unable to take Delivery of the Equipment as arranged then the Contractor shall be entitled to charge a reasonable fee for redelivery of the Equipment and/or the storage of the Equipment.
   • Return of the Equipment (“Return”) will be completed when the Equipment has been dismantled and accepted by the Contractor. Where the Equipment is returned by the Client’s transport, the Equipment returned shall be counted in the Contractor’s yard. If the Client collects the Equipment, it will be checked on arrival in the Contractor’s yard for quantity and condition. In both cases the check in the Contractor’s yard for quantity and condition will be the only legal proof of the quantity and condition of Equipment returned.

10. Risk
    • Risk of damage to or loss of the Equipment passes to the Client on delivery.
    • The Client accepts full responsibility for and shall keep the Contractor 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.
    • The Contractor shall be entitled to rely on the accuracy of any plans, specifications and other information provided by the Client for the purposes of estimating quantities and type of Equipment required. The Client acknowledges and agrees that in the event that any of this information provided by the Client is inaccurate, the Contractor accepts no responsibility for any loss, damages, or costs however resulting from these inaccurate plans, specifications or other information.
    • In the event of damage to a building as a result of any action by the Contractor’s employees or contractors, the Contractor must be informed in order that the Contractor may inspect such damage before any agreement to rectification costs can be accepted.
    • Any Equipment that is erected or dismantled by the Contractor trained and licensed employees or contractors shall be as per the manufacturers and SafeWork requirements. The Client acknowledges and accepts that the Contractor shall not be liable in any way for any claim made in connection with the erection and dismantling of the Equipment by non-employees or contractors of the Contractor.

11. Access and Installation
    • The Client shall ensure that the Contractor has clear and free access to the nominated delivery address to enable the Contractor to install and/or dismantle the Equipment, and the Contractor agrees at the time of completion thereof to carry out in a reasonable way the clean-up of the Worksite where scaffolding was installed. Furthermore, it is acknowledged that it is unreasonable to expect the clean-up to restore the property to its pre-existing condition, especially in the event where existing grass has died off due to the covering of base blocks to establish foundation support for the Equipment, such damage will remain the Client’s responsibility.
    • The Client acknowledges and accepts that where the Equipment is required to be tied to the building structure, with ties at each scaffold lift, using either bolts, pins or screw eyes, the subsequent repairs of theses holes and/or repainting shall be the responsibility of the Client.
    • The quotation is based upon wire ties and/or bolted scaffold ties to secure the Equipment to the building and the construction procedures must allow for these ties to remain in position whilst the Equipment is in use.
    • It shall be the Client’s responsibility to ensure that where Equipment is installed on concreted areas, patios, driveways or timber decks that suitable coverings are put in place to help prevent any marking/staining of the finished product. The Contractor shall not be liable for any loss or damage to the Worksite (including, without limitation, damage to pathways, driveways and concreted or paved or grassed areas) unless due to the negligence of the Contractor.
    • The Client shall ensure that the nominated delivery address is cleared and ready for installation of the Equipment prior to delivery of the Equipment, and that the foundations upon which the Contractor is to install the Equipment is sufficiently firm and otherwise suitable to safely carry the structure and the load to be put on it without subsidence. The Client will be liable to the Contractor for any loss, costs or damages which the Contractor may suffer or incur by reason of the Client’s failure to carry out its obligations hereunder if the Contractor is unable or unwilling to install the Equipment due to the Worksite not being cleared and ready as a foresaid. Nevertheless, the Client shall be liable to pay the costs on the hire of the Equipment on the terms stated herein.
    • The Client shall provide access at any time for the Contractor to be able to inspect the Equipment on the Worksite (or wherever the Equipment may be located).
    • Any Equipment above five metres (5m) high may only be erected, altered or dismantled under the supervision of a scaffolder holding a certificate of competency or license that may be required by any legislation or local regulatory authority for the purpose of the erection or the dismantling of the Equipment or the Contractor.
    • If during the course of the Client’s work, the Equipment is modified or removed by the Client to the extent the Equipment is no longer compliant with the applicable legislative requirements, any rectification work performed by the Contractor will be at the Client’s expense.
    • The Client acknowledges and agrees that:
      • the Contractor erect and dismantle quotation, unless otherwise agreed, does not allow for subsequent visits to the Worksite to adjust or alter the Equipment, any additional rectification services will be charged as an extra; and
      • any standing scaffold over five metres (5m) high or intended to extend over five metres (5m) high requires the Contractor and the people intending to use the scaffold to provide a notification to SafeWork prior to any services commencing; and
      • in the event the Contractor require access, in order to erect, alter or dismantle the Equipment, to an adjoining or adjacent property or land to the nominated Worksite, that is not owned by the Client, then it is the Client’s responsibility to gain permission from the land owner to use the above mentioned property throughout the erection, alteration or dismantling of the Equipment. In the event the land owner denies access or use of the land or property, the Client shall be liable for all costs incurred by the Contractor in gaining permission to access and/or use the property through any legal process that may be deemed necessary.
    • The Client shall be responsible for:
      • confirming with the relevant authorities that all power cables are safe within four metres (4m) of the intended Equipment prior to the services commencing; and
      • providing the Contractor, while at the Worksite, with adequate access to available water, electricity, toilet and washing facilities unless catered for within the Contract preliminary in general.

12. Affixation of Equipment to Land or Buildings
    • If the Equipment or any part thereof is affixed to any land or buildings pursuant to this Contract, and the land or buildings are or become the subject of a mortgage or charge whether under the PPSA or otherwise at law, then the Client shall, without first receiving any request from the Contractor, obtain the written acknowledge of the mortgagee or chargehold (as the case may be) that:
      • the Equipment or any part thereof is not a fixture for the purposes of the mortgage or charge;
      • that the mortgagee or chargeholder will not make any claim in relation to the Equipment or any part therefore; and
      • that the mortgagee or chargeholder will permit the Contractor (whether or not there has been any default under the mortgage or charge) to enter upon the land or buildings and to remove the Equipment or part thereof.

13. Inspection of Equipment
    • The Client hereby grants the Contractor (including its employees, duly authorised agents or representatives) the right, at all times, upon the Contractor giving to the Client reasonable notice and without unduly interfering with the Client’s business or operations, to:
      • enter onto the Worksite(s) where the Equipment or any part thereof may be located;
      • inspect the state of repair or condition of the Equipment;
      • carry out any such tests on the Equipment as may be reasonably necessary including but not limited to, health and safety tests or inspections;
      • observe the use of the Equipment by the Client; and
      • do any act, matter or thing which may be required at law or to otherwise protect the Contractor’s rights or interests in the Equipment.

14. Client’s Responsibilities
    • The Client warrants that any structures to which the Equipment is to be erected on is able to withstand all imposed loadings If for any reason that the Contractor, or employees of the Contractor, reasonably form the opinion that the Client’s premises is not safe for the erection of the Equipment to proceed then the Contractor shall be entitled to delay erection of the Equipment until the Contractor is satisfied that it is safe for the erection to proceed.
    • It is the Client’s responsibility to give due notice to all local and any other authorities of its intention to erect the Equipment and to gain any consent required as per clause 2.
    • Scaffold decks are to be cleared of all building materials and rubbish before planks are moved or dismantling can commence.
    • The Client shall be solely responsible for and liable for the Equipment (and associated costs where applicable) and the manner of use and shall:
      • maintain the Equipment as is required by the Contractor;
      • ensure scaffolding ties fixed by the Contractor are not removed or tampered with as the safety and stability of the scaffold depends on these ties;
      • not move or relocate the Equipment or any part of the Equipment from the Worksite without the Contractor’s prior written approval;
      • ensure all overhead and underground services at the Worksite are located and identified or relocated, protected or temporarily shut down as necessary to ensure a safe working environment for the Equipment (including the delivery, erection, installation and/or removal of the Equipment);
      • notify the Contractor immediately of the full circumstances of any failure or accident in connection with the Equipment. The Client is not absolved from the requirements to safeguard the Equipment by giving such notification;
      • satisfy itself prior to taking delivery of the Equipment that the Equipment is suitable for its purposes;
      • use the Equipment safely, strictly in accordance with the law, only for its intended use, and in accordance with any manufacturer’s instruction and Australian Standards, whether supplied by the Contractor or posted on the Equipment;
      • ensure that all persons erecting or using the Equipment are suitably instructed in its safe and proper use, and where necessary, hold a current certificate of competency and/or are fully licensed;
      • ensure that the operator of any Equipment is not under the influence of alcohol or any drug that may impair their ability to operate the Equipment;
      • comply with all laws relating to the Equipment and its use (including, but not limited to work health and safety laws, the Australian Building and Industry Codes, etc.);
      • employ the Equipment solely in its own work and not permit the Equipment of any part thereof to be used by any other party for any other work;
      • ensure all overhead power likely to cause a hazard or adversely affect the installation of Equipment is turned off prior to the installation of the equipment;
      • ensure that no digging or excavation work is performed near or under the Equipment during the installation or once the Equipment is installed;
      • not exceed the recommended or legal load and capacity limits of the Equipment;
      • not use or carry any illegal, prohibited or dangerous substance on the Equipment;
      • not fix any of the Equipment in such a manner as to make it legally a fixture forming part of any freehold;
    • Immediately on request by the Contractor, the Client will pay:
      • the new list price of any Equipment, accessories or consumables that are for whatever reason destroyed, written off or not returned to the Contractor;
      • all costs incurred in cleaning the Equipment;
      • 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;
        • wilful or negligent actions of the Client or the Client’s employees;
        • vandalism, or (in the Contractor’s reasonable opinion) in any way whatsoever other than by the ordinary use of the Equipment by the Client.

15. Compliance with Laws
    • The Client and the Contractor shall comply with the provisions of all statutes, regulations and bylaws of government, local and other public authorities that may be applicable to the Equipment including but not limited to, industry best practice guidelines for scaffolding, any Australian Standards relating to building/construction Worksites and any other relevant standards or legislation.
    • The Client shall obtain (at the expense of the Client) all engineering reports, certificates, and all licenses and approvals that may be required for the Equipment hire/placement.
    • The Client shall be responsible for the submission of notices and permits, authority, consents and approvals or bonds (including building permits and air rights) relevant to the local authority, councils or SafeWork.

16. Title
    • The Equipment is and will at all times remain the absolute property of the Contractor, and the Client must return the Equipment to the Contractor upon request to do so.
    • If the Client fails to return the Equipment to the Contractor as is required under this Contract or when requested to do so, then the Contractor or the Contractor’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 Contractor as a result of the Contractor so repossessing the Equipment shall be charged to the Client.
    • The Client is not authorised to pledge the Contractor’s credit for repairs to the Equipment or to create a lien over the Equipment in respect of any repairs.

17. Personal Property Securities Act 2009 (“PPSA”)
    • In this clause financing statement, financing change statement, security agreement, and security interest has the meaning given to it by the PPS
    • 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 previously supplied by the Contractor to the Client;
      • all Equipment will be supplied in the future by the Contractor to the Client; and
      • all the Client’s present and after acquired property being a charge, including anything in respect of which the Client has at any time a sufficient right, interest or power to grant a security interest in for the purposes of securing repayment of all monetary obligations of the Client to the Contractor for Services – that have previously been provided and that will be provided in the future by the Contractor to the Client.
    • The Client 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 the Contractor may reasonably require to;
        • register a financing statement or financing change statement in relation to a security interest on the Personal Property Securities Register;
        • register any other document required to be registered by the PPSA; or
        • correct a defect in a statement referred to in clause 3(a)(i) or 17.3(a)(ii);
      • indemnify, and upon demand reimburse, the Contractor 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;
      • not register a financing change statement in respect of a security interest without the prior written consent of the Contractor;
      • 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 Contractor.
    • The Contractor 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.
    • The Client waives their rights to receive notices under sections 95, 118, 121(4), 130, 132(3)(d) and 132(4) of the PPSA.
    • The Client waives their rights as a grantor and/or a debtor under sections 142 and 143 of the PPSA.
    • Unless otherwise agreed to in writing by the Contractor, the Client waives their right to receive a verification statement in accordance with section 157 of the PPSA.
    • The Client must unconditionally ratify any actions taken by the Contractor under clauses 3 to 17.5.
    • Subject to any express provisions to the contrary (including those contained in this clause 17), nothing in these terms and conditions is intended to have the effect of contracting out of any of the provisions of the PPSA.
    • Only to the extent that the hire of the Equipment exceeds a two (2) year hire period with the right of renewal shall clause 17 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 17 will apply generally for the purposes of the PPSA.

 

18. Security and Charge
    • In consideration of the Contractor agreeing to supply Services, 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).
    • The Client indemnifies the Contractor from and against all the Contractor’s costs and disbursements including legal costs on a solicitor and own client basis incurred in exercising the Contractor’s rights under this clause.
    • The Client irrevocably appoints the Contractor and each director of the Contractor as the Client’s true and lawful attorney/s to perform all necessary acts to give effect to the provisions of this clause 18 including, but not limited to, signing any document on the Client’s behalf.

 

 

19. Defects, Warranties and the Competition and Consumer Act 2010 (“CCA”)
    • The Client must inspect the Equipment on delivery and must within twenty-four (24) hours notify the Contractor in writing of any evident defect, damage, shortage in quantity or of any other failure by the Contractor to comply with the description or quote. The Client must notify any other alleged defect in the Contractor’s Services or Equipment as soon as is reasonably possible after any such defect becomes evident. Upon such notification the Client must allow the Contractor to review the Services or Equipment that were provided.
    • 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).
    • The Contractor acknowledges that nothing in these terms and conditions purports to modify or exclude the Non-Excluded Guarantees.
    • Except as expressly set out in these terms and conditions or in respect of the Non-Excluded Guarantees, the Contractor makes no warranties or other representations under these terms and conditions including, but not limited to, the quality or suitability of the Services. The Contractor’s liability in respect of these warranties is limited to the fullest extent permitted by law.
    • If the Client is a consumer within the meaning of the CCA, the Contractor’s liability is limited to the extent permitted by section 64A of Schedule 2.
    • If the Contractor is required to rectify, re-supply, or pay the cost of re-supplying the Services under this clause or the CCA, but is unable to do so, then the Contractor may refund any money the Client has paid for the Services but only to the extent that such refund shall take into account the value of Services and Equipment which have been provided to the Client which were not defective.
    • If the Client is not a consumer within the meaning of the CCA, the Contractor’s liability for any defective Services or Equipment is:
      • limited to the value of any express warranty or warranty card provided to the Client by the Contractor at the Contractor’s sole discretion;
      • limited to any warranty to which the Contractor is entitled, if the Contractor did not manufacture the Equipment;
      • otherwise negated absolutely.
    • Subject to this clause 19, returns will only be accepted provided that:
      • the Client has complied with the provisions of clause 1; and
      • the Contractor has agreed that the Equipment are defective; and
      • the Equipment are returned within a reasonable time at the Client’s cost (if that cost is not significant); and
      • the Equipment are returned in as close a condition to that in which they were delivered as is possible.
    • Notwithstanding clauses 1 to 19.7 but subject to the CCA, the Contractor shall not be liable for any defect or damage which may be caused or partly caused by or arise as a result of:
      • the Client failing to properly maintain or store any Equipment;
      • the Client using the Equipment for any purpose other than that for which they were designed;
      • the Client continuing to use any Equipment after any defect became apparent or should have become apparent to a reasonably prudent operator or user;
      • interference with the Services by the Client or any third party without the Contractor’s prior approval;
      • the Client failing to follow any instructions or guidelines provided by the Contractor;
      • fair wear and tear, any accident, or act of God.
    • In the case of second hand Equipment, unless the Client is a consumer under the CCA, the Client acknowledges that it has had full opportunity to inspect the second hand Equipment prior to Delivery and accepts them with all faults and that to the extent permitted by law no warranty is given by the Contractor as to the quality or suitability for any purpose and any implied warranty, statutory or otherwise, is expressly excluded. The Client acknowledges and agrees that the Contractor has agreed to provide the Client with the second hand Equipment and calculated the Price of the second hand Equipment in reliance of this clause 10.
    • Notwithstanding anything contained in this clause if the Contractor is required by a law to accept a return then the Contractor will only accept a return on the conditions imposed by that law.

20. Intellectual Property
    • Where the Contractor has designed, drawn or developed Equipment for the Client, then the copyright in any designs, documents and drawings shall remain the property of the Contractor. Under no circumstances may such designs, drawings and documents be used without the express written approval of the Contractor.
    • The Client warrants that all designs, specifications or instructions given to the Contractor will not cause the Contractor to infringe any patent, registered design or trademark in the execution of the Client’s order and the Client agrees to indemnify the Contractor against any action taken by a third party against the Contractor in respect of any such infringement.
    • The Client agrees that the Contractor may (at no cost) use for the purposes of marketing or entry into any competition, any documents, designs, drawings or Equipment which the Contractor has created for the Client.

 

21. Default and Consequences of Default
    • Interest on overdue invoices shall accrue daily from the date when payment becomes due, until the date of payment, at a rate of two and a half percent (2.5%) per calendar month (and at the Contractor’s sole discretion such interest shall compound monthly at such a rate) after as well as before any judgment.
    • If the Client owes the Contractor any money the Client shall indemnify the Contractor from and against all costs and disbursements incurred by the Contractor in recovering the debt (including but not limited to internal administration fees, legal costs on a solicitor and own client basis, the Contractor’s contract default fee, and bank dishonour fees).
    • Further to any other rights or remedies the Contractor may have under this Contract, if a Client has made payment to the Contractor, 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 Contractor under this clause 21 where it can be proven that such reversal is found to be illegal, fraudulent or in contravention to the Client’s obligations under this Contract.
    • Without prejudice to the Contractor’s other remedies at law the Contractor shall be entitled to cancel all or any part of any order of the Client which remains unfulfilled and all amounts owing to the Contractor shall, whether or not due for payment, become immediately payable if:
      • any money payable to the Contractor becomes overdue, or in the Contractor’s opinion the Client will be unable to make a payment when it falls due;
      • the Client has exceeded any applicable credit limit provided by the Contractor;
      • 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
      • a receiver, manager, liquidator (provisional or otherwise) or similar person is appointed in respect of the Client or any asset of the Client.

22. Cancellation
    • Without prejudice to any other remedies the Contractor may have, if at any time the Client is in breach of any obligation (including those relating to payment) under these terms and conditions the Contractor may suspend or terminate the supply of Services or Equipment to the Client. The Contractor will not be liable to the Client for any loss or damage the Client suffers because the Contractor has exercised its rights under this clause.
    • The Contractor may cancel any contract to which these terms and conditions apply or cancel delivery of Services or Equipment at any time before the Services have commenced by giving written notice to the Client. On giving such notice the Contractor shall repay to the Client any money paid by the Client for the Services or Equipment. The Contractor shall not be liable for any loss or damage whatsoever arising from such cancellation.
    • In the event that the Client cancels delivery of the Services or Equipment the Client shall be liable for any and all loss incurred (whether direct or indirect) by the Contractor as a direct result of the cancellation (including, but not limited to, any loss of profits).

23. Dispute Resolution
    • Any dispute or difference arising as to the interpretation of these terms and conditions or as to any matter arising hereunder, shall be submitted to, and settled by, either arbitration or the relevant governing agency for the state in which the Works were performed such as:
      • in accordance with the Commercial Arbitration Act 2010 (NSW) or its replacement(s); or
      • NSW Civil & Administration Tribunal (NCAT).

24. Privacy Policy
    • All emails, documents, images or other recorded information held or used by the Contractor is Personal Information, as defined and referred to in clause 3, and therefore considered Confidential Information. The Contractor 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 Contractor acknowledges that in the event it becomes aware of any data breaches and/or disclosure of the Client’s Personal Information, held by the Contractor that may result in serious harm to the Client, the Contractor 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.
    • Notwithstanding clause 1, privacy limitations will extend to the Contractor in respect of Cookies where the Client utilises the Contractor’s website to make enquiries. The Contractor 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:
      • IP address, browser, email client type and other similar details;
      • tracking website usage and traffic; and
      • reports are available to the Contractor when the Contractor sends an email to the Client, so the Contractor may collect and review that information (“collectively Personal Information”)

If the Client consents to the Contractor’s use of Cookies on the Contractor’s website and later wishes to withdraw that consent, the Client may manage and control the Contractor’s privacy controls via the Client’s web browser, including removing Cookies by deleting them from the browser history when exiting the site.

• The Client agrees for the Contractor 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 Contractor.
• The Client agrees that the Contractor may exchange information about the Client with those credit providers and with related body corporates for the following purposes:
  • to assess an application by the Client; and/or
  • to notify other credit providers of a default by the Client; and/or
  • 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
  • to assess the creditworthiness of the Client including the Client’s repayment history in the preceding two (2) years.
• The Client consents to the Contractor being given a consumer credit report to collect overdue payment on commercial credit.
• The Client agrees that personal credit information provided may be used and retained by the Contractor for the following purposes (and for other agreed purposes or required by):
  • the provision of Services; and/or
  • analysing, verifying and/or checking the Client’s credit, payment and/or status in relation to the provision of Services; and/or
  • processing of any payment instructions, direct debit facilities and/or credit facilities requested by the Client; and/or
  • enabling the collection of amounts outstanding in relation to the Services.
• The Contractor may give information about the Client to a CRB for the following purposes:
  • to obtain a consumer credit report;
  • allow the CRB to create or maintain a credit information file about the Client including credit history.
• The information given to the CRB may include:
  • Personal Information as outlined in 3 above;
  • name of the credit provider and that the Contractor is a current credit provider to the Client;
  • whether the credit provider is a licensee;
  • type of consumer credit;
  • 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);
  • 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 Contractor has been paid or otherwise discharged and all details surrounding that discharge(e.g. dates of payments);
  • information that, in the opinion of the Contractor, the Client has committed a serious credit infringement;
  • advice that the amount of the Client’s overdue payment is equal to or more than one hundred and fifty dollars ($150).
• The Client shall have the right to request (by e-mail) from the Contractor:
  • a copy of the Personal Information about the Client retained by the Contractor and the right to request that the Contractor correct any incorrect Personal Information; and
  • that the Contractor does not disclose any Personal Information about the Client for the purpose of direct marketing.
• The Contractor 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.
• The Client can make a privacy complaint by contacting the Contractor via e-mail. The Contractor 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.

25. Service of Notices
    • Any written notice given under this Contract shall be deemed to have been given and received:
      • by handing the notice to the other party, in person;
      • by leaving it at the address of the other party as stated in this Contract;
      • by sending it by registered post to the address of the other party as stated in this Contract;
      • if sent by facsimile transmission to the fax number of the other party as stated in this Contract (if any), on receipt of confirmation of the transmission;
      • if sent by email to the other party’s last known email address.
    • 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.

26. Trusts
    • If the Client at any time upon or subsequent to entering in to the Contract is acting in the capacity of trustee of any trust (“Trust”) then whether or not the Contractor may have notice of the Trust, the Client covenants with the Contractor as follows:
      • the Contract extends to all rights of indemnity which the Client now or subsequently may have against the Trust and the trust fund;
      • the Client has full and complete power and authority under the Trust to enter into the Contract and the provisions of the Trust do not purport to exclude or take away the right of indemnity of the Client against the Trust or the trust fund. The Client will not release the right of indemnity or commit any breach of trust or be a party to any other action which might prejudice that right of indemnity;
      • the Client will not without consent in writing of the Contractor (the Contractor will not unreasonably withhold consent), cause, permit, or suffer to happen any of the following events:
        • the removal, replacement or retirement of the Client as trustee of the Trust;
        • any alteration to or variation of the terms of the Trust;
        • any advancement or distribution of capital of the Trust; or
        • any resettlement of the trust property.

27. Building and Construction Industry Security of Payments Act 1999
    • At the Contractor’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 1999 may apply.
    • Nothing in this Contract is intended to have the effect of contracting out of any applicable provisions of the Building and Construction Industry Security of Payments Act 1999 of New South Wales, except to the extent permitted by the Act where applicable.

 

28. General
    • 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.
    • These terms and conditions and any contract to which they apply shall be governed by the laws of New South Wales, the state in which the Contractor has its principal place of business, and are subject to the jurisdiction of the courts in Wyong, New South Wales.
    • Subject to clause 19, the Contractor 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 Contractor of these terms and conditions (alternatively the Contractor’s liability shall be limited to damages which under no circumstances shall exceed the Price of the Services).
    • The Contractor may licence and/or assign all or any part of its rights and/or obligations under this Contract without the Client’s consent.
    • The Client cannot licence or assign without the written approval of the Contractor.
    • The Contractor may elect to subcontract out any part of the Services but shall not be relieved from any liability or obligation under this Contract by so doing. Furthermore, the Client agrees and understands that they have no authority to give any instruction to any of the Contractor’s sub-contractors without the authority of the Contractor.
    • The Client agrees that the Contractor may amend their general terms and conditions for subsequent future contracts 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 Contractor to provide Services to the Client.
    • Neither party shall be liable for any default due to any act of God, war, terrorism, strike, lock-out, industrial action, fire, flood, storm, national or global pandemics and/or the implementation of regulation, directions, rules or measures being enforced by Governments or embargo, including but not limited to, any Government imposed border lockdowns (including, worldwide destination ports), etc., (“Force Majeure”) or other event beyond the reasonable control of either party.
    • Both parties warrant that they have the power to enter into this Contract and have obtained all necessary authorisations to allow them to do so, they are not insolvent and that this Contract creates binding and valid legal obligations on them.