MASTER TERMS AND CONDITIONS
BACKGROUND
A.
Standard Access Services
Pty Ltd (ACN 084 413 730 trading as Standard Access (Standard Access) has
agreed to perform Services for the Applicant in accordance with the provisions
of these terms and conditions.
Below text serves as a suggestion and doesn’t engage Odoo S.A. responsibility.
Part One – General Terms of Trade
This part of the Master Terms and Conditions applies to all Applicants purchasing Services from Standard Access.
1 DEFINITIONS AND INTERPRETATION
1.1 Definitions
In this Agreement unless context requires otherwise:
Agreement means these master terms and conditions and any Quotation.
Applicant means the Applicant whose details appear in the Application for Commercial Credit and includes any Related Body Corporate of that person.
Application for Commercial Credit means the application for commercial credit issued by Standard Access to the Applicant.
Australian Consumer Law means Schedule 2 of the Competition and Consumer Act 2010 (Cth).
Business Day means Monday to Friday excluding public holidays in Victoria.
Claim includes actions, proceedings, suits, causes of action, arbitrations, verdicts and judgments either at Law under a statute, debts, dues, demands, claims of any nature, costs and expenses.
Commencement Date means the commencement date stated on the Quotation.
Consequential Loss means any loss or damage suffered by a party or any other person which is indirect or consequential, including but not limited to loss of revenue, loss of income, loss of business, loss of profits, loss of goodwill or credit, loss of business reputation, loss of data or data use, future reputation or publicity, loss of use, loss of interest, damage to credit rating or loss or denial of opportunity.
Consumer means a person who acquires Goods pursuant to a Consumer Contract as defined in section 23(3) of the Australian Consumer Law.
Consumer Guarantee has the meaning given to it in the Australian Consumer Law or guidance provided by the Australian Competition and Consumer Commission.
Corporations Act means the Corporations Act 2001 (Cth).
Event of Default means any of the following events:
(a) the Applicant fails to pay for the Services;
(b) the Applicant is in breach of this Agreement;
(c) if the Applicant is a company:
(i) an order is made or a resolution is effectively passed for winding up of the Applicant;
(ii) a provisional liquidator, an administrator, or a receiver is appointed to it, or, over its assets;
(iii) the Applicant goes into liquidation or makes an assignment or an arrangement or composition with its creditors; or
(iv) the Applicant stops payment or is deemed unable to pay its debts within the meaning of the Corporations Act;
(d) if the Applicant is a natural person:
(i) an order is made for the Applicant’s bankruptcy;
(ii) the Applicant dies or becomes mentally or physically incapable of managing their affairs; or
(iii) an order is applied for or made to place the assets and affairs of the Applicant under administration;
(e) the Applicant ceases or threatens to cease carrying on business; or
(f) Standard Access forms an opinion, on a reasonable basis, that the Applicant is in financial difficulty.
Equipment means the item(s) of equipment provided by Standard Access including all tools, parts and accessories, as specified in the Quotation.
Force Majeure means an event or cause outside the reasonable control of the affected party (other than an obligation to pay money) and includes, but is not limited to:
(a) act of God, lightning, storm, flood, fire, earthquake, explosion, cyclone, landslide or adverse weather conditions;
(b) strike, lockout or other labour difficulty;
(c) act of public enemy, war (declared or undeclared), sabotage, blockade, revolution, terrorism, cyber attack, riot, insurrection, civil commotion, epidemic, global pandemic;
(d) the effect of any applicable laws, orders, rules or regulations of any government or other competent authority; and
(e) embargo, inability to obtain any necessary materials, equipment, facilities or qualified employees, power or water shortage, lack of transportation.
Law means:
(a) legislation, regulations, by-laws, orders, awards, proclamations and statutory instruments imposed or enforced by any applicable government, agency or authority;
(b) any written instrument which constitutes a requirement of an organisation which has jurisdiction in connection with the supply of the Equipment; and
(c) principles of common law and equity established by decisions of the courts.
Loss means any loss, Claim, liability, damage, charge, payment, cost or expense (whether direct or indirect and whether accrued or paid) including legal fees and disbursements and costs of investigation, litigation, settlement, judgment, interest and penalties.
Personnel means any directors, officers, employees, agents, representatives, suppliers and subcontractors engaged by a party, but a reference to Standard Access’ Personnel excludes the Hirer and its Personnel.
PPSA means the Personal Property Securities Act 2009 (Cth).
Price means the price for the Services quoted by Standard Access in a Quotation or, otherwise, as set out in Standard Access’ then current price list.
Quotation means any document, including contracts generated by Standard Access setting out terms of the provision of Services.
Related Body Corporate means a body corporate which is deemed under section 50 of the Corporations Act to be related to a party which is a body corporate.
Services means all goods, Equipment and/or services supplied or to be supplied by Standard Access to the Applicant.
Small Business means an Applicant that acquires Goods pursuant to a Small Business Contract as defined in section 23(4) of the Australian Consumer Law.
Variation means:
(a) the inclusion of additional Services to be supplied by Standard Access under an existing Quotation;
(b) a change in the character or quality of the Services to be supplied by Standard Access under a Quotation;
(c) an increase or decrease in the quantity of Services to be supplied by Standard Access under a Quotation;
(d) a change to the delivery point specified in a Quotation; or
(e) a change to the delivery date specified in a Quotation.
1.1 Interpretation
In this Agreement unless the context requires otherwise:
(a) a reference to a person includes a corporation;
(b) a reference to a person includes the permitted assigns of that person;
(c) words importing the singular include the plural and vice versa;
(d) the use of the word includes or including is not to be taken as limiting the meaning of the words preceding it;
(e) no provision of this Agreement will be construed to the disadvantage of a party merely because that party was responsible for the preparation of the agreement or the inclusion of the provision in the agreement; and
(f) if a word or phrase is defined cognate words and plurals have corresponding meaning.
2 GENERAL
2.1 Unless Standard Access otherwise agrees in writing, these are the only terms and conditions which apply to the provision of Services by Standard Access and the Applicant agrees that these terms and conditions will in all circumstances prevail over any other document or other terms, including the Applicant’s terms and conditions of purchase (if any).
2.2 These terms and conditions supersede and exclude all prior and other discussions, dealings, representations (contractual or otherwise) and arrangements relating to the supply of Services including but not limited to those relating to the performance of the Services or the results that ought to be expected from using the Services.
3 SUPPLY OF SERVICES
3.1 If the Applicant wishes to purchase Services from Standard Access, it must sign and return a Quotation to Standard Access.
3.2 Standard Access has sole discretion to accept or reject a Quotation. Standard Access is under no obligation to provide any Services to an Applicant unless it has accepted a Quotation in writing.
3.3 Acceptance of a Quotation may be in whole or in part, by delivery of the relevant Services or in such other manner communicated by Standard Access to the Applicant in writing.
4 MINIMUM TERM COMMITMENT
If the Applicant has committed to a minimum term in the Quotation, the Applicant is liable to commit to the provision of Services ordered by the Applicant for the minimum term specified.
5 VARIATION
5.1 The terms of a Quotation may only be varied by agreement of both parties in writing.
5.2 The Applicant may, on giving reasonable notice to Standard Access, issue a notice to vary a Quotation (Notice of Variation) requesting that Standard Access perform a Variation.
5.3 Within 10 Business Days of receiving a Notice of Variation, Standard Access may provide the Applicant with an amended quote (Variation Order) setting out details of:
(a) any delay to the date of completion of the Services;
(b) the cost of the Variation; and
(c) an adjusted Price.
5.4 The Applicant must notify Standard Access within 3 Business Days of receipt of the Variation Order of its acceptance or otherwise of the terms of the Variation Order.
5.5 If the Applicant accepts the Variation Order, Standard Access will use reasonable endeavours to perform the Variation within the timeframe specified in the Variation Order and invoice the Applicant for those costs in accordance with this Agreement.
5.6 For the avoidance of doubt, Standard Access is under no obligation to accept a Notice of Variation.
6 CANCELLATION AND DELAY
6.1 A Quotation can only be cancelled where written request for cancellation has been made by the Applicant and accepted by Standard Access in writing.
6.2 Standard Access may decline to accept any request for cancellation or make its acceptance conditional on such terms and conditions as it reasonably sees fit, including that the Applicant pays all reasonable costs incurred by Standard Access.
7 PRICE
7.1 Subject to clause 7.2, and unless otherwise agreed in writing or for Quotations which have been accepted by Standard Access, the price charged for the Services will be the price set out in any price indications or price list provided by Standard Access to the Applicant or otherwise made available to the Applicant.
7.2 Any price indication or price list provided by Standard Access to the Applicant or otherwise made available to the Applicant are subject to alteration at any time on reasonable notice.
8 PAYMENT AND DEFAULT
8.1 Unless otherwise agreed in writing by Standard Access, all invoices are payable by the Applicant within 14 days from the date of invoice. Standard Access reserves the right to invoice the Applicant either:
(a) before the provision of Services;
(b) during the provision of Services; or
(c) after the provision of Services.
8.2 Standard Access is entitled to charge the Applicant interest on amounts not paid by the due date at a rate equivalent to the reference rate charged by Standard Access’ principal bankers, from the invoice date until payment of the overdue debt.
8.3 The Applicant agrees that Standard Access is entitled to charge all costs associated with debt collection on an indemnity basis.
8.4 Standard Access may re-evaluate payment terms, suspend performance of a Quotation or terminate a Quotation entirely if, in Standard Access’ reasonable opinion, the credit of the Applicant becomes impaired or there is a material adverse change to the Applicant’s financial position.
8.5 No amount owing whether present or future, actual, contingent or prospective and on any account whatsoever by the Applicant to Standard Access may be offset against any amount owing whether present, future, actual, contingent or prospective of the Applicant to Standard Access hereunder or any other account whatsoever.
8.6 If the Applicant disputes payment of an invoiced amount it must:
(a) pay any undisputed amount whilst the dispute is being resolved; and
(b) attempt to resolve the dispute in accordance with clause 18 of this Agreement.
8.7 If it is resolved by the parties that some or all of the amount in dispute ought to have been paid when due at the time it was invoiced, then the Applicant will pay the amount finally resolved, together with interest on that amount in accordance with clause 8.2.
9 GST
9.1 GST Act
In this clause words that are defined in A New Tax System (Goods and Services Tax) Act 1999 (Cth) have the same meaning as their definition in that Act.
9.2 Exclusive of GST
Each amount payable by the Applicant under this Agreement and/or a Quotation in respect of a Taxable Supply by Standard Access is a GST exclusive amount and the Applicant must, in addition to that amount and at the same time, pay the GST payable in respect of that supply.
10 CREDIT
10.1 If the Applicant has applied for credit and if Standard Access accepts that application, such acceptance is on the terms and conditions of this Agreement and the terms of any Director’s guarantee.
10.2 The Applicant will supply promptly on request of Standard Access and, in any event no later than 5 days after such a request is made, certified copies of its most recent financial statements, tax returns and other financial information of the Applicant reasonably requested by Standard Access.
10.3 Where Standard Access determines, in its reasonable opinion, that there may be an immediate risk to the Equipment, or where the Applicant has failed to comply with the terms of this Agreement, Standard Access may increase, decrease, or withdraw any credit facilities granted to the Applicant.
11 PASSING OF TITLE AND RISK
11.1 The Equipment is at the Applicant’s risk from the time at which it is delivered to the Applicant or its nominee.
11.2 The Applicant agrees that legal and equitable title to the Equipment is retained by Standard Access until Standard Access receives payment in full from the Applicant for the Equipment. Until the Applicant has paid all monies owing to Standard Access on any account, the Applicant must:
(a) hold any Equipment as fiduciary bailee and agent for Standard Access;
(b) keep the Equipment in good and merchantable condition and fully insure the Equipment against loss or damage however caused;
(c) must keep any Equipment physically separate from all other goods of the Applicant;
(d) not create any encumbrance over the Equipment which is inconsistent with Standard Access’ title and ownership of the Equipment; and
(e) clearly identify the Equipment as owned by Standard Access.
11.3 If an Event of Default occurs, then without prejudice to Standard Access’ other rights, the Applicant must (at its cost) return to Standard Access any Equipment to which title is retained by Standard Access immediately on demand.
11.4 If the Applicant does not return the Equipment to Standard Access on demand under clause 11.3, the Applicant:
(a) irrevocably authorises representatives of Standard Access to enter upon any site where the Equipment is located to take possession of the Equipment without prior notice; and
(b) indemnifies Standard Access for all fees (including legal fees on a full indemnity basis), costs and other Losses incurred or suffered by Standard Access (including any such fees, costs and Losses which arise out of a claim made by or against Standard Access in connection with retaking possession of the Equipment or the exercise by Standard Access of its rights under this clause).
11.5 If the Equipment is on a third party site, the Applicant must procure access rights for Standard Access from the controller of the third party site such that Standard Access may enter onto the site and recover and retake possession of them on reasonable notice.
11.6 If the Applicant sells any of the Equipment while money is owed to Standard Access, the Applicant holds the proceeds on trust for Standard Access. Such proceeds will be deemed to equal in dollar terms such corresponding part of the amount owed by the Applicant to Standard Access at the time of receipt.
11.7 If the Applicant uses the Equipment in some manufacturing or construction process of its own or of some third party, then the Applicant must hold such part of the proceeds of such manufacturing or construction process as relates to such Equipment on trust for Standard Access. Such proceeds will be deemed to equal in dollar terms the corresponding amount owing by the Applicant to Standard Access at the time of receipt.
11.8 Until payment of all moneys owing on any account to Standard Access, any proceeds referred to above received by the Applicant must be held in a separate account and not mixed with any other funds.
11.9 The rights of Standard Access under this clause do not limit or exclude any other rights of Standard Access against the Applicant.
12 CHARGE OVER APPLICANT’S PROPERTY
As security for payment of all moneys payable to Standard Access by the Applicant, the Applicant charges in favour of Standard Access the whole of the Applicant’s undertaking, property and assets (including, without limitation, all of the Applicant’s interests both legal and beneficial in freehold and leasehold land) both current and later acquired. The Applicant irrevocably appoints each director, secretary, manager and authorised representative of Standard Access as its attorney to do all things necessary to register each such charge.
13 SECURITY INTEREST
13.1 Terms that are defined in the PPSA have the same meaning in this clause.
13.2 The Applicant agrees and acknowledges that, for the purposes of the PPSA, Standard Access has a security interest in the Equipment and in any right in relation to or derived from the Equipment and such other undertaking, property and assets of the Applicant.
13.3 Standard Access may register its security interests under this clause 13, including as a purchase money security interest.
13.4 The Applicant waives the right to receive a verification statement under the PPSA.
13.5 The Applicant agrees that, if Chapter 4 of the PPSA applies to the enforcement of Standard Access’ security interests, the following provisions of the PPSA will not apply to that enforcement:
(a) section 95 to the extent that it requires Standard Access to give a notice to the Applicant;
(b) section 96;
(c) section 130, to the extent that it requires Standard Access to give a notice to the Company;
(d) subsection 132(3)(d);
(e) subsection 132(4);
(f) section 135;
(g) section 142; and
(h) section 143.
13.6 The Applicant agrees that Standard Access may allocate any payment that it receives from the Applicant in any manner Standard Access determines (despite any purported allocation or appropriation by the Applicant) including to satisfy obligations that are not secured; then to satisfy obligations that are secured, but are not secured by a purchase money security interest, in the order in which those obligations were incurred and then to satisfy any obligations secured by a purchase money security interest in the order in which those obligations were incurred.
13.7 Subject to subsection 275(7) of the PPSA, neither party may disclose information of the kind referred to in subsection 275(1) of the PPSA.
13.8 This clause will survive the termination or expiry of this Agreement.
14 LIABILITY
14.1 To the fullest extent permitted by law, Standard Access excludes all liability for any Loss whatsoever suffered by the Applicant as a result of any act, omission or statement made by Standard Access, its directors, employees, contractors or agents whether negligent or not, except that nothing in this Agreement limits any liability imposed by any statute unless or to the extent that it is lawful to do so.
14.2 All Consumer Guarantees and any other implied statutory conditions or warranties are excluded to the fullest extent permitted by Law and Standard Access’ only obligation resulting from a breach of a Consumer Guarantee is limited, at Standard Access’ option, to:
(a) where the Good is a consumer good under Australian Consumer Law:
(i) replacement of the Good or supply of equivalent Good;
(ii) repair of the Good;
(iii) payment of the cost of replacing the Good or acquiring equivalent Good; or
(iv) payment of the cost of having the Good repaired.
(b) where the Good is a consumer service under Australian Consumer Law:
(i) supplying the services again; or
(ii) payment of the cost of having the services supplied again.
14.3 Notwithstanding any other provision of this Agreement and to the maximum extent permitted by Law, the total cumulative liability of Standard Access for any Loss suffered by the Applicant due to any act or omission of Standard Access under or in connection with this Agreement (whether in tort (including negligence) for breach of contract (including under any warranty or indemnity) or breach of statute or otherwise) is limited to the amount paid to Standard Access by the Applicant in the 12 months preceding a Claim being made.
1.2 Under no circumstances will either party to this Agreement be liable to the other for Consequential Loss.
14.4 This clause will survive the termination or expiry of this Agreement.
15 INDEMNITY
15.1 Subject to clause 15.2, the Applicant indemnifies and will keep indemnified Standard Access and each of its officers, employees and agents (for each of whom Standard Access holds the benefit of this indemnity upon trust) from and against all Losses, including but not limited to, any legal fees and costs incurred by Standard Access arising out of or relating to:
(a) a breach of this Agreement by the Applicant;
(b) any loss or damage caused by any Equipment, or the use of any Equipment, hired out by Standard Access to the Applicant;
(c) the negligence, wrongful act or omission, breach of statutory duty, breach of contract, wilful misconduct, fraud or error of the Applicant or its officers, employees, agents or contractors;
(d) any injury to or death of any person or any damage to or loss of property connected with the conduct, operations or performance of the business of the Applicant;
(e) the Applicant's communications or interactions with Standard Access; or
(f) misuse of the Equipment by the Applicant.
15.2 Where the Applicant is a Consumer or Small Business the Applicant's liability to indemnify Standard Access under clause 15.1 will be reduced proportionately to the extent that Standard Access’ fraud, negligent act or omission, wilful misconduct or error has contributed to the Loss.
15.3 This clause will survive the termination or expiry of this Agreement.
16 FORCE MAJEURE
16.1 If a party is unable to perform an obligation under this Agreement due to a Force Majeure event, that party is excused from performing that obligation while those circumstances continue.
16.2 If a Force Majeure event continues for an unreasonable period of time or if the delay in the party's performance of its obligation has a material adverse effect on the other party, then the party adversely affected may terminate this Agreement on giving written notice to the other party.
16.3 The parties agree that the inability of a party to pay any amounts owing under this Agreement is not a force majeure event and this clause will not apply in that circumstance.
17 TERMINATION
17.1 If the Applicant commits an Event of Default, Standard Access may terminate this Agreement if the Applicant does not remedy the relevant default within 10 Business Days of receipt of notice of the default.
17.2 If the Applicant commits an Event of Default, Standard Access may in addition to any other rights it may have under this Agreement or at Law:
(a) immediately terminate this Agreement if an Event of Default is incapable of remedy;
(b) require the Applicant to immediately stop using and return to Standard Access all hired Equipment;
(c) withdraw credit facilities which may have been extended to the Applicant and require immediate payment of all moneys owed to Standard Access by the Applicant;
(d) require immediate payment of all amounts due and payable to Standard Access under this Agreement;
(e) issue an invoice for, and demand immediate payment for, Services ordered by the Applicant but not delivered; and
(f) require immediate payment of all costs associated with returning the Equipment to Standard Access.
17.3 The Applicant may terminate this Agreement by written notice if Standard Access commits a breach of this Agreement:
(a) where the breach is incapable of remedy; or
(b) where the breach is capable of remedy but the Standard Access fails to rectify the breach within 10 Business Days of a request to do so from the Applicant.
18 DISPUTE RESOLUTION
18.1 A party must not start court proceedings (except proceedings seeking interlocutory relief) in respect of a dispute arising out of this Agreement unless that party has complied with this clause 18.
18.2 A party claiming that a dispute has arisen in respect of this Agreement must notify the other party's representative.
18.3 During the 10-day period after notice is given under clause 18.2 (or such longer period as agreed to in writing by the key contacts) the parties must use all reasonable endeavours to resolve the dispute.
18.4 If the parties cannot resolve the dispute between themselves the parties to the dispute expressly agree to endeavour to settle the dispute by mediation administered by the Australian Disputes Centre (or its successor at law) (ADC) before having recourse to litigation.
18.5 The mediation referred to in clause 18.4 must be conducted in accordance with the ADC Guidelines for Commercial Mediation (Guidelines) which are operating at the time the matter is referred to the ADC. The Guidelines set out the procedures to be adopted, the process of selection of the mediator and the costs involved. The terms of the Guidelines are incorporated into this Agreement.
18.6 During the period in which the dispute is being resolved, the parties must continue to perform all of their obligations under this Agreement, which are not under dispute and which are able to be performed by the parties.
18.7 Nothing in this clause prevents either party from obtaining any injunctive or other urgent interlocutory relief from a court of appropriate jurisdiction.
19 NOTICES
19.1 A notice given by a party to the other party under this Agreement must be in writing and:
(a) delivered personally;
(b) sent by post; or
(c) sent by e-mail,
to that party's address or email address set out in this Agreement or as last notified by the intended recipient.
19.2 A notice given in accordance with clause 19.1 above is deemed to be received if:
(a) personally delivered, on delivery;
(b) mailed within Australia, on the expiration of 2 Business Days after posting; or
(c) sent by e-mail, on delivery.
20 MISCELLANEOUS
20.1 Severance
If it is held by a court of competent jurisdiction that:
(a) any part of this Agreement is void, voidable, illegal or unenforceable; or
(b) this Agreement would be void, voidable, illegal or unenforceable unless any part of this Agreement was severed,
then that part will be severable from and will not affect or denigrate from the enforceability or validity of the parties’ rights or obligations or the continued operation of the rest of this Agreement.
20.2 Legal compliance
The Applicant must comply with all Laws and requirements of any regulatory authority applicable to the Applicant’s business, including without limitation those Laws and regulatory requirements relating to the environment, health, safety, storage, handling and sale of Equipment. The Applicant must comply with any processes, material safety data sheets (or similar documents), reasonable instructions or directions of Standard Access issued in connection with the Equipment.
20.3 Trusts
These terms bind the Applicant both personally and as trustee of any trusts which the Applicant is trustee.
20.4 Waiver
The non-exercise of or delay in exercising any power or right of a party does not operate as a waiver of that power or right, nor does any single exercise of a power or right preclude any other or further exercise of it or the exercise of any other power or right. A power or right may only be waived in writing, signed by the party to be bound by the waiver.
20.5 Further Assurances
Each party will do, sign, execute and deliver and will procure that each of their employees and agents does, signs, executes and delivers, all deeds, documents, instruments and acts reasonably required of it by notice from another party to effectively carry out and give full effect to this Agreement and the rights and obligations of the parties under it.
20.6 Governing Law
This Agreement will be governed and construed in accordance with the laws of Victoria, Australia and the parties agree to submit to the exclusive jurisdiction of the courts of Victoria, Australia.
20.7 Assignment
No party may assign or transfer any of its rights or obligations under this document without the prior written consent of all other parties, which shall not be unreasonably withheld.
20.8 Changes
Standard Access reserves the right to vary this Agreement at its reasonable discretion by providing 30 days’ written notice to the Applicant.
20.9 Expenses
The Applicant must pay to Standard Access any costs, charges and expenses (including legal fees calculated on a full indemnity basis) incurred by Standard Access in connection with the exercise or attempted exercise of any power, right or remedy under this Agreement, and the failure of the Applicant to comply with this Agreement.
Part Two – Terms and Conditions of Hire/ Hire and Installation
This part of the Master Terms and Conditions applies to all Applicants hiring Equipment from Standard Access.
21 DEFINITIONS AND INTERPRETATION
21.1 Definitions
In addition to the definitions set out in Part One, the following definitions apply to this part of the Master Terms and Conditions:
Approval means all approvals, certificates, licenses, consents, permits, assessment notices and requirements of organisations having jurisdiction in connection with the Equipment or the carrying out of any work under this Agreement (including the transportation, loading, unloading, delivery, operation, maintenance, repair or use of the Equipment), including all fees and charges payable in connection with such approvals.
Billing Date means each billing date specified in the Quotation.
Charges means the Hire Rates, Installation Price or any ancillary charges which may be payable by the Applicant pursuant to this Agreement, including as set out in clause 28.2 or the Quotation.
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Equipment also includes any replacement or substitute equipment.
Equipment Condition Report means a report in the format provided by Standard Access, detailing the condition of the Equipment in accordance with clause 27.
Hire Location means the means the place where the Equipment is to be used and kept during the Hire Period, as specified in the Quotation.
Hire Period means the period from the Commencement Date, or if none is specified, the Hire Start Date until the Return Date.
Hire Rates means the weekly rates specified in the Quotation, or, otherwise, as set out in Standard Access’ then current price list, payable by the Applicant to Standard Access to hire the Equipment.
Hire Start Date means the date on which the Equipment is commissioned at the Hire Location.
HSE Legislation means all applicable Legislative Requirements in connection with health, safety and the environment.
Installation Price means the estimated price for the Installation Works quoted by Standard Access in a Quotation.
Installation Works means the whole of the installation and dismantling works set out in the Quotation and which must be performed in accordance with the Quotation (including the Scope of Works).
Legislative Requirements means any applicable statues, regulations, by-laws, orders, awards, proclamations of the Commonwealth, certificates, licences, consents, permits, Approvals, codes, standards or requirements of government and statutory authorities.
Minimum Period has the meaning given to that term in clause 23.
Operating Manual means the manual published by the manufacturer for the proper operation and maintenance of the Equipment.
Pay Now Fee means the price for Pre Works quoted by Standard Access in a Quotation.
Pick Up Location means the place specified in the Quotation.
Plant means all plant, tools machinery, equipment appliances and things of whatever nature required by Standard Access to carry out the Installation Works, including, for the avoidance of doubt a fork, lift, crane and boom lift.
Pre Works means the whole of the pre works set out in a Quotation.
Return Date means the date specified in the Quotation.
Scope of Works means the scope of works set out in in writing by Standard Access in a Quotation.
22 PAY NOW FEE
22.1 Immediately on signing the Quotation:
(a) the Applicant agrees that Standard Access will invoice the Applicant for the non-refundable Pay Now Fee in consideration for Standard Access performing the Pre Works; and
(b) the Applicant will pay the invoice referred to in clause 22.1(a) within 30 days of receiving that invoice.
22.2 The Applicant acknowledges and agrees that Standard Access is under no obligation to perform any obligation under this Agreement until it has received the Pay Now Fee.
23 MINIMUM HIRE PERIOD
The Applicant acknowledges and agrees that the Equipment must be hired for the minimum period specified in a Quotation and, if no time is specified, then the Applicant acknowledges that the minimum hire period will be 48 calendar weeks (Minimum Period).
24 DELIVERY AND INSTALLATION OF EQUIPMENT
24.1 Unless otherwise specified in the Quotation, Standard Access will deliver the Equipment to the Hire Location and install the Equipment at the Hire Location on the Commencement Date.
24.2 Standard Access will use its reasonable endeavours to perform the Installation Works in accordance with the Scope of Works.
24.3 Unless otherwise agreed in writing by Standard Access, the Applicant must, at no cost to Standard Access:
(a) supply all necessary Plant and materials required by Standard Access to complete the Installation Works; and
(b) provide adequate storage and protection for all Plant and materials to preserve their quality and fitness for the Installation Works and ensure that any Plant or materials used in the Installation Works are:
(i) suitable for its purposes and consistent with the nature and character of the Installation Works; and
(ii) compliant with any relevant Australian standards.
25 TIME AND PROGRESS
25.1 The Applicant must procure access rights for Standard Access to the Hire Location such that Standard Access will have unrestricted access to the Hire Location to perform the Installation Works on any day between Monday to Saturday from 7:00am – 5:30pm.
25.2 If the Applicant fails to give Standard Access access to the Hire Location in accordance with clause 25.1 then the Applicant acknowledges and agrees that due to that delay, Standard Access may suffer loss of productivity and have to increase its workforce, work extended hours, allow for special manufacture, air freight or other measures necessary to perform the Installation Works set out in the Quotation.
25.3 The Applicant agrees to pay all reasonable charges incurred for delay (unless the delay is caused by an act or omission of Standard Access) or futile delivery.
25.4 The parties agree that any completion date for the Installation Works, set out in a Quotation or otherwise advised in writing by Standard Access, is an estimate only and the Applicant has no Claim in respect of any cost, loss, expenses or damage the Applicant may suffer due to delay, disruption, or loss of productivity to the Installation Works unless such cost, loss, expense or damage is caused as a direct result of negligence or wilful misconduct of Standard Access.
26 DELAY
If the Applicant requests to postpone the Commencement Date for a period of time that exceeds two calendar weeks, and if Standard Access accepts that postponement, the Applicant acknowledges and agrees to pay a storage fee for each day that the Equipment is stored but not delivered to the Applicant and that daily storage fee will be 75% of the daily Hire Rate (to be calculated on a pro rata basis).
27 RISK AND TITLE
27.1 Risk in the Equipment transfers to the Applicant on the date the Equipment is delivered to the Hire Location and remains solely with the Applicant for the duration of the Hire Period, until Standard Access’ acceptance of the Equipment on the Return Date or if no date is specified, on the date the Equipment is returned to the possession of Standard Access..
27.2 Standard Access retains title to the Equipment at all times during the Hire Period.
28 EQUIPMENT CONDITION REPORT
28.1 Standard Access will undertake an inspection of the Equipment on, or, immediately prior to, the Commencement Date and will prepare an Equipment Condition Report.
28.2 Standard Access will provide a copy of the Equipment Condition Report, undertaken in accordance with clause 28.1, to the Applicant upon delivery of the Equipment.
28.3 Within three (3) Business Days of delivery of the Equipment to the Hire Location, the Applicant must notify Standard Access if it disagrees with any aspect of the Equipment Condition Report and the parties must endeavour to resolve the issue assoon as practicable and failing that, the matter shall be dealt with in accordance with clause 18 of this Agreement.
28.4 If the Applicant fails to respond within the time frame prescribed in clause 28.3, the Applicant will be deemed to have accepted the Equipment Condition Report, or, if there is no Equipment Condition Report, the condition of the Equipment on an as is where is basis.
28.5 No review, inspection, acceptance or approval by Standard Access of, or failure by Standard Access to review, inspect, accept or approve, the Equipment (including failure to prepare an Equipment Condition Report), limits or otherwise affects the Applicant's liabilities and obligations arising out of, or in connection with, this Agreement.
28.6 The Applicant must also, on a date to be advised by Standard Access (prior to the Return Date), make the Equipment accessible to Standard Access to enable Standard Access to perform an Equipment Condition Report.
28.7 This clause will survive the termination or expiry of this Agreement.
29 HIRE INVOICING AND PAYMENT
29.1 In addition to the Pay Now Fee, the Applicant must pay Standard Access the:
(a) Hire Rates in consideration for hiring the Equipment; and
(b) Installation Price in consideration for Standard Access installing the Equipment.
29.2 In addition to the Hire Rates and Installation Price, the Applicant agrees to pay:
(a) the cost of transportation, delivery, loading and unloading, of the Equipment and all reasonable and associated costs;
(b) for any training or instruction related to the operation or hire of the Equipment;
(c) for maintenance and servicing the Equipment;
(d) any charges for delay or futile delivery;
(e) any amounts the Applicant is responsible for under clause 11.1;
(f) for reasonable business expenses (including airfares and accommodation) incurred in connection with the Installation Works and any servicing or maintenance works and paid on a cost-plus basis as set out in the Quotation;
(g) for cleaning or repair of Equipment if the Equipment is not returned in clean, good working condition; and
(h) for any modification of Equipment that is requested by the Applicant.
29.3 Payment of the Charges will commence on the Commencement Date and the Applicant is liable for payment of the Charges on each Billing Date until the Equipment is returned to Standard Access.
29.4 Standard Access will submit a payment claim to the Applicant at monthly intervals from the CommencementDate.
29.5 The payment claim pursuant to clause 29.4 must:
(a) be in writing;
(b) include details of the Hire Rates owing;
(c) the value of the Installation Works executed, or equipment delivered and materials so far installed in conformity with the Quotation; and
(d) include sufficient information to allow the Applicant to properly assess the payment claim and the manner in which it has been calculated.
29.6 Within 14 days after a payment claim under clause 29.4 is made, the Applicant must pay Standard Access the amount set out in the relevant payment claim.
29.7 If the Applicant disputes payment of an invoiced amount it must:
(a) pay any undisputed amount whilst the dispute is being resolved; and
(b) attempt to resolve the dispute in accordance with clause 18 of this Agreement.
29.8 If it is resolved by the parties that some or all of the amount in dispute ought to have been paid when due at the time it was invoiced, then the Applicant will pay the amount finally resolved, together with interest on that amount in accordance with clause 8.2 of this Agreement.
29.9 If the Applicant seeks to return the Equipment prior to the end of the Minimum Period, the Applicant agrees to pay the Hire Rates owing for the Minimum Period.
29.10 If this Agreement is terminated before the Return Date and termination occurs pursuant to 17 (other than where Standard Access is the party who committed the breach), the Applicant agrees to pay Standard Access the Hire Rates owing for the remainder of the Hire Period.
29.11 On the earlier of the Return Date and the date Standard Access terminates this agreement, the Applicant must pay all outstanding amounts and Charges at that time to Standard Access (including all amounts and Charges that were not due and payable but for the termination of the Agreement).
29.12 Notwithstanding any direction by the Applicant, Standard Access may apply any payment received from the Applicant against any outstanding amount under the agreement as Standard Access may reasonably elect.
29.13 This clause will survive the termination or expiry of this Agreement.
30 WARRANTIES
30.1 The Applicant warrants that for the duration of the Hire Period:
(c) it is authorised to hire the Equipment from Standard Access and holds the necessary Approvals required by Legislative Requirements to do so;
(d) it will do all things necessary and incidental for the proper performance of its obligations under this Agreement;
(e) it will promptly disclose all information that may reasonably be material to Standard Access in relation to the Equipment or this Agreement; and
(f) all information and advice it provides to Standard Access in relation to the Equipment, or this Agreement, will be true and correct in every respect, and not misleading or deceptive.
30.2 The Applicant warrants that at all times during the Hire Period, it:
(a) will keep the Equipment clean, free from damage, and in good condition and working order;
(b) will use and operate the Equipment in accordance with the Operating Manual, Legislative Requirements, Australian Standards and any specifications provided by Standard Access;
(c) will only use the Equipment for the purpose for which it was designed, in suitable terrain and conditions and in a manner that has regard to the capacity, capabilities and limitation of the Equipment;
(d) will provide adequate training to ensure that its Personnel use or operate the Equipment in a manner that minimises the risk to their own health and safety and the health and safety of others, and do not undertake any tasks for which they have not received adequate training;
(e) will keep the Equipment stored safely and protected from theft, loss, damage or severe weather conditions; and
(f) will keep the Equipment free from any charges, liens or encumbrances.
30.3 The Applicant warrants that the Equipment will only be used or operated by Personnel who:
(a) are experienced, competent and are fit to use and operate the Equipment;
(b) hold the necessary Approvals;
(c) fully comply with all relevant Legislative Requirements;
(d) are provided with all necessary safety equipment to operate the Equipment;
(e) abide by and fully comply with all relevant HSE Legislation in their use or operation of the Equipment; and
(f) exercise reasonable and necessary precautions appropriate to the nature of the Equipment, the work to be performed and the conditions under which the work is carried out.
30.4 The Applicant acknowledges and agrees that Standard Access enters into this Agreement in reliance on the warranties provided by the Applicant in this Agreement.
31 INSURANCE
31.1 The Applicant must keep the Equipment insured with the types and levels of insurance specified in a Quotation and, otherwise, the Applicant must keep the Equipment insured against all risks for Equipment of that kind from the time the risk in the Equipment passes to the Applicant until the time that risk in the Equipment passes to Standard Access under clause 11.
31.2 The Applicant holds the proceeds of that insurance on trust for Standard Access up to the amount it owes Standard Access in respect of the Equipment, and must keep such proceeds in a separate account until the liability to Standard Access is discharged and must immediately pay that amount to Standard Access.
32 SERVICING AND MAINTENANCE
Standard Access is responsible for servicing or maintenance of the Equipment during the Hire Period, and the Applicant must make the Equipment available for such servicing or maintenance at the times reasonably requested by Standard Access. If Standard Access is unable to access the Hire Location to perform routine servicing or maintenance works then the Applicant will be liable for all costs related to any damage or defect to the Equipment.
33 RETURN OF EQUIPMENT
33.1 Standard Access will collect the Equipment from the Hire Location on the Return Date. The Applicant must, on the Return Date:
(a) make the Equipment available to be disassembled and available for collection by Standard Access, at a time reasonably requested by Standard Access; and
(b) ensure that the Equipment is in clean, good working order, free from damage and defects, and in a state consistent with the Applicant having complied with its obligations under this Agreement (subject to fair, wear and tear).
33.2 Any request by the Applicant to extend the Return Date must be provided in writing to Standard Access at least five (5) Business Days prior to the Return Date. Standard Access has sole discretion to accept or reject a request to extend the Return Date and to vary the Hire Rates accordingly.
33.3 If the Applicant is in possession of the Equipment beyond the Return Date, without the written approval of Standard Access, the Applicant will be in breach of this Agreement and notwithstanding any other rights or remedies Standard Access may have against the Applicant, the Applicant will be liable to pay the Hire Rates until the date the Equipment is returned to the possession of Standard Access.
33.4 This clause will survive the termination or expiry of this Agreement.
34 DAMAGE OR BREAKDOWN
34.1 The Applicant must immediately notify Standard Access in writing of any loss, defect in, damage to, or breakdown of, the Equipment.
34.2 Standard Access will attend to repair any defect, damage or breakdown of the Equipment. The Applicant is responsible for the cost related to any loss or breakdown of, or damage to, the Equipment whilst it is in the Applicant’s possession or control.
34.3 If, at any time, the Equipment is lost, destroyed or, in Standard Access’ reasonable opinion, damaged beyond economic repair, Standard Access may immediately terminate this Agreement.
34.4 If Standard Access determines that any rectification, repair, maintenance or servicing of the Equipment is reasonably necessary to:
(a) repair or rectify any defect or damage;
(b) improve the condition of the Equipment such that it matches its initial condition recorded in the Equipment Condition Report (fair wear and tear excluded); or
(c) reflect the level of service or maintenance consistent with the Applicant having complied with its obligations under this Agreement,
Standard Access may, in its sole discretion, elect to repair the Equipment at the Hire Location and/or remove the Equipment from the Hire Location and the reasonable cost of such work, including parts and labour based on the original equipment manufacturer’s retail prices and labour rates, will be a debt due and payable by the Applicant to Standard Access.
34.5 Subject to clause 34.6, Hire Rates will continue to apply during any period of non-use or repair, unless caused by a defect in the Equipment.
34.6 If the defect, damage or breakdown is a direct result of negligence or wilful misconduct by Standard Access or its Personnel, Standard Access will be responsible to the extent of the necessary repair or replacement of the Equipment (at Standard Access’ election).
35 CONSEQUENCE OF TERMINATION
On termination of this Agreement the Applicant must immediately:
(a) stop using and return to Standard Access all Equipment;
(b) pay all amounts due and payable to Standard Access under this Agreement; and
(c) pay all costs associated with returning the Equipment to Standard Access.
Part Three – Terms and Conditions of Works
This Part of the Master Lease Terms and Conditions applies to all Applicants requesting Standard Access to perform Works.
36 DEFINITIONS AND INTERPRETATION
In addition to the definitions set out in Part One, the following definitions apply to this part of the Master Terms and Conditions:
Deposit means the sum specified as such in the Quotation.
Goods means any goods and/or materials forming part of the Works, including any goods specified as such in the Quotation, in the description of the Works.
Pay Now Fee means the price for Pre Works quoted by Standard Access in a Quotation.
Plant means all plant, tools machinery, equipment appliances and things of whatever nature required by Standard Access to carry out the Works, including, for the avoidance of doubt a fork, lift, crane and boom lift.
Pre Works means the whole of the pre works set out in a Quotation.
Scope of Works means the scope of works set out in in writing by Standard Access in a Quotation.
Security Deposit means the security deposit for the amount specified in a Quotation.
Site means the land and any other place required by Standard Access to perform the Works being the site identified as such in the Quotation.
Works means the whole of the works (including any Goods to be supplied and installed as part of the Works) set out in the Quotation and which must be performed in accordance with the Quotation (including the Scope of Works).
37 PAY NOW FEE
1.1 If the Applicant has engaged Standard Access to perform Works then, immediately on signing the Quotation:
(a) the Applicant agrees that Standard Access will invoice the Applicant for the non-refundable Pay Now Fee in consideration for Standard Access performing the Pre Works; and
(b) the Applicant will pay the invoice referred to in clause 37.1(a) within 30 days of receiving that invoice.
37.2 The Applicant acknowledges and agrees that Standard Access is under no obligation to perform any obligation under this Agreement until it has received the Pay Now Fee.
38 PERFORMANCE
38.1 Standard Access will use its reasonable endeavours to perform the Works in accordance with the Scope of Works.
38.2 Unless otherwise agreed in writing by Standard Access, the Applicant must, at no cost to Standard Access:
(a) supply all necessary Plant and materials required by Standard Access to complete the Works; and
(b) provide adequate storage and protection for all Plant and materials to preserve their quality and fitness for the Works and ensure that any Plant or materials used in the Works are:
(i) suitable for its purposes and consistent with the nature and character of the Works; and
(ii) compliant with any relevant Australian standards.
39 TIME AND PROGRESS
39.1 The Applicant must procure access rights for Standard Access to the Site such that Standard Access will have unrestricted access to the Site to perform the Works on any day between Monday to Saturday from 7:00am – 5:30pm.
39.2 If the Applicant fails give Standard Access access to the Site in accordance with clause 38.1 then the Applicant acknowledges and agrees that due to that delay, Standard Access may suffer loss of productivity and have to increase its workforce, work extended hours, allow for special manufacture, air freight or other measures necessary to perform the Works set out in the Quotation.
39.3 The Applicant agrees to pay all reasonable charges incurred for delay (unless the delay is caused by an act or omission of Standard Access) or futile delivery.
39.4 The parties agree that any completion date for the Works, set out in a Quotation or otherwise advised in writing by Standard Access, is an estimate only and the Applicant has no Claim in respect of any cost, loss, expenses or damage the Applicant may suffer due to delay, disruption, or loss of productivity to the Works.
40 INVOICING AND PAYMENT
40.1 Standard Access will submit a payment claim to the Applicant at monthly intervals from the Commencement Date.
40.2 The payment claim pursuant to clause 40.1 must:
(a) be in writing;
(b) include details of the value of the Works executed, Goods or equipment delivered and materials so far installed in conformity with the Quotation; and
(c) include sufficient information to allow the Applicant to properly assess the payment claim and the manner in which it has been calculated.
40.3 Within 14 days after the end of each month in which a payment claim under clause 40.1 is made, the Applicant must pay Standard Access the amount set out in the relevant payment claim.
40.4 If the Applicant disputes payment of an invoiced amount it must:
(a) pay any undisputed amount whilst the dispute is being resolved; and
(b) attempt to resolve the dispute in accordance with clause 18 of this Agreement.
40.5 If it is resolved by the parties that some or all of the amount in dispute ought to have been paid when due at the time it was invoiced, then the Applicant will pay the amount finally resolved, together with interest on that amount in accordance with clause 8.2.
40.6 This clause will survive the termination or expiry of this Agreement.
41 SECURITY DEPOSIT
41.1 The Applicant must pay Standard Access the Security Deposit on the Commencement Date.
41.2 The parties acknowledge and agree that the Security Deposit is required to ensure the proper performance of the obligations under this Agreement.
41.3 Standard Access may draw on the Security Deposit to pay for any costs, expenses, debts or damages which Standard Access has incurred as a consequence of any act or omission of the Applicant which is in breach of this Agreement
41.4 Subject to clause 41.5, Standard Access will release the Security Deposit within seven (7) days of the Return Date.
41.5 Standard Access is entitled to retain from the Security Deposit an amount reasonably sufficient to cover any outstanding Claim reasonably alleged by Standard Access against the Applicant under or in connection with this Agreement.
Part Four – Terms and Conditions of Equipment Purchase
This Part of the Master Terms and Conditions applies to all Applicants purchasing Equipment from Standard Access.
42 DELIVERY
42.1 Delivery of Equipment by or on behalf of Standard Access to the Applicant will be in accordance with the delivery options agreed in writing pursuant to a Quotation.
42.2 The Applicant acknowledges that the time of delivery on a Quotation is an estimate only.
42.3 Requests for proof of delivery may only be made within 30 days of the delivery date.
42.4 Where Equipment is left unattended, on a property or building site they may not be eligible for a return, repair, replacement, or refund as it cannot be determined how or when any damages may have occurred.
42.5 Standard Access requires the Applicant to inspect the Equipment on taking delivery or at the maximum within 48 hours of delivery or collection and immediately report any shortage, discrepancy, defect, wrong specification or similar problem to us as soon as you become aware of it. This inspection must be prior to installation otherwise Standard Access may not be liable for the issue. If the product is obviously damaged, the Applicant must reject the delivery and take clear photos of the damage, including the consignment note number and call 9116 4090. For any deliveries where damage is suspected but not obvious, sign the proof of delivery (POD) as damaged subject to check (STC) before proceeding with inspection of the Equipment. Any orders in which Standard Access can provide a clean carrier POD without a damaged STC notation, Standard Access reserves the right to reject any damage claim made.
42.6 The cost of delivery is not included in the Price unless directly specified in the Quotation.
42.7 Standard Access is entitled to charge a reasonable fee for storage and/or redelivery charges in the event the Applicant does not, or is unable to, accept delivery of the Equipment.
42.8 The Applicant accepts that Standard Access may deliver Equipment by instalments and require payment for each separate instalment in accordance with this Agreement.
42.9 The Applicant acknowledges and accepts that it is not relieved from any obligation arising under this Agreement by reason of any delay in delivery.
42.10 If Standard Access has attempted to deliver the Equipment and delivery is unable to be satisfied:
(a) the Applicant must collect the Equipment from a depot collection site;
(b) the depot collection will occur for the nearest possible freight depot location to the receiver;
(c) a depot collect charge (reasonably determined by Standard Access) will be applicable to any depot collections; and
(d) should the depot collection be required after previous delivery attempts have been made, Standard Access may not warrant any claim on damages to the Equipment.
43 WARRANTIES
43.1 Representations
(a) This clause 43.1 does not apply to an Applicant who is a Consumer.
(b) The Applicant acknowledges and agrees that it has not relied on any representation made by Standard Access which has not been expressly stated in this Agreement.
(c) Standard Access does not warrant and does not make any representation as to the suitability or fitness for purpose of any of the Equipment for any particular use and the Applicant acknowledges and agrees that it has satisfied itself as to the appropriate use or application of the Equipment and that the Equipment is suitable for any particular purpose.
43.2 Defects warranty
(a) This clause does not apply to an Applicant who is a Consumer under the Australian Consumer Law. Otherwise, the Applicant will have no claim for defects unless a written complaint is received by Standard Access within 14 days of the delivery of the Equipment to the Applicant. Standard Access may, at its option, accept the return of, or give a credit for Equipment where:
(i) the Applicant has complied with this sub-clause 43.2;
(ii) Standard Access determines that the Applicant has complied with all Equipment care instructions that accompany the Equipment;
(iii) Standard Access is satisfied as to the claim by the Applicant; and
(iv) if Standard Access elects to have the Equipment returned, the Equipment is returned to Standard Access in the same condition as when first delivered to the Applicant with the relevant invoice number and date of order.
(b) Standard Access may, at its sole discretion, accept the return of, or give credit for, Equipment that is not damaged or defective if requested by the Applicant.
(c) All Equipment returned are subject to a minimum handling charge of 10% of the invoiced price except in the case of defective Equipment or Equipment incorrectly supplied.
(d) Standard Access will not recognise any Claim under this clause unless the Applicant has made the claim within one month of the defect arising.
44 INSURANCE
44.1 The Applicant must keep the Equipment insured against all risks for Equipment of that kind from the time the risk in the Equipment passes to the Applicant until the time that title in the Equipment passes to the Applicant under 11.2.
44.2 The
Applicant holds the proceeds of that insurance on trust for Standard Access up
to the amount it owes Standard Access in respect of the Equipment, and must
keep such proceeds in a separate account until the liability to Standard Access
is discharged and must immediately pay that amount to Standard Access.