1 Definitions
1.1 “PCSA” shall mean Mamoo Investments Pty Ltd T/A Portable Cooling Solutions Australia, its successors and assigns or any person acting on behalf of and with the authority of Mamoo Investments Pty Ltd T/A Portable Cooling Solutions Australia.
1.2 “Client” shall mean the Client or any person acting on behalf of and with the authority of the Client.
1.3 “Guarantor” mean s that person (or persons), or entity who agrees herein to be liable for the debts of the Client on a principal debtor basis.
1.4 “Equipment” shall mean Equipment supplied on hire by PCSA to the Client (and where the context so permits shall include any supply of services) and is as described on the invoices, quotation, authority to hire, or any other work authorisation forms as provided by PCSA to the Client.
1.5 “Minimum Hire Period” shall mean the Minimum Hire Period as described on the invoices, quotation, authority to hire, or any other forms as provided by PCSA to the Client.
1.6 “Price” shall mean the cost of the hire of the Equipment as agreed between PCSA and the Client subject to clause 4 of this contract.
2 The Commonwealth Trade Practices Act 1974 (“TPA”) and Fair Trading Acts (“FTA”)
2.1 Nothing in this agreement is intended to have the effect of contracting out of any applicable provisions of the TPA or the FTA in each of the States and Territories of Australia, except to the extent permitted by those Acts where applicable.
3 Acceptance
3.1 Any instructions received by PCSA from the Client for the hire of Equipment and/or the Client’s acceptance of Equipment supplied on hire by PCSA shall constitute acceptance of the terms and conditions contained herein.
3.2 Where more than one Client has entered into this agreement, the Clients shall be jointly and severally liable for all payments of the Price.
3.3 Upon acceptance of these terms and conditions by the Client the terms and conditions are irrevocable and can only be amended with the written consent of PCSA.
3.4 The Client shall give PCSA not less than fourteen (14) days prior written notice of any proposed change of ownership of the Client or any change in the Client’s name and/or any other change in the Client’s details (including but not limited to, changes in the Client’s address, facsimile number, or business practice). The Client shall be liable for any loss incurred by PCSA as a result of the Client’s failure to comply with this clause.
4 Price And Payment
4.1 At PCSA’s sole discretion the Price shall be either;
(a) as indicated on invoices provided by PCSA to the Client in respect of Equipment supplied on hire; or
(b) PCSA’s current Price, at the date of delivery of the Equipment, according to PCSA’s current Price list; or
(c) PCSA’s quoted Price (subject to clause 4.2) which shall be binding upon PCSA provided that the Client shall accept in writing PCSA’s quotation within fourteen (14) days.
4.2 PCSA reserves the right to change the Price in the event of a variation to PCSA’s quotation.
4.3 PCSA shall be entitled to (at their sole discretion) charge the Client for any service visits where Equipment breakdown results from the Client’s negligence or from a lack of routine maintenance.
4.4 At PCSA’s sole discretion:
(a) payment shall be due on delivery of the Equipment; or
(b) payment shall be due before delivery of the Equipment; or
(c) payment for approved Clients shall be due thirty (30) days following the end of the month.
4.5 Time for payment for the Equipment shall be of the essence and will be stated on the invoice or any other forms. If no time is stated then payment shall be due seven (7) days following the date of the invoice.
4.6 The date upon which the Client advises of termination shall in all cases be treated as a full day’s hire.
4.7 Payment will be made by cash, or by cheque, or by bank cheque, or by credit card (plus a surcharge of up to two and a half percent (2.5%) of the Price), or by direct credit, or by any other method as agreed to between the Client and PCSA.
4.8 GST and other taxes and duties that may be applicable shall be added to the Price except when they are expressly included in the Price.
5 Hire Period
5.1 For Equipment in which a timing device is installed the hire period shall be the number of hours or part thereof recorded on the timing device whilst the Equipment is in the Client’s possession.
5.2 Where the Equipment does not have a timing device installed hire charges shall commence from the time the stated on the quotation, authority to hire, or any other work authorisation forms as provided by PCSA to the Client and will continue until either the Client notifies PCSA (by fax or email) that the Equipment is available for collection or the Equipment is returned to PCSA’s premises, and/or until the expiry of the Minimum Hire Period, whichever last occurs. The off-hire receipt will be issued when the Equipment is collected by PCSA or returned to PCSA’s premises.
5.3 No allowance whatever can be made for time during which the Equipment is not in use for any reason, unless PCSA confirms special prior arrangements in writing. In the event of Equipment breakdown provided the Client notifies PCSA 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.
5.4 periodic testing is the responsibility of the Hiree. All units are tagged and checked prior to hire period commencing
6 Delivery Of Equipment
6.1 At PCSA’s sole discretion delivery of the Equipment shall take place when:
(a) the Client takes possession of the Equipment at PCSA’s address; or
(b) the Client takes possession of the Equipment at the Client’s address (in the event that the Equipment is delivered by PCSA or PCSA’s nominated carrier).
6.2 At PCSA’s sole discretion the costs of delivery are:
(a) in addition to the Price; or
(b) for the Client’s account.
6.3 Delivery of the Equipment to a third party nominated by the Client is deemed to be delivery to the Client for the purposes of this agreement.
6.4 The Client shall be responsible for free access by PCSA to the site on which the Equipment is located. If there are any delays due to free access not being available then the Client shall be responsible and shall reimburse PCSA for all lost hire fees associated with the Equipment being unavailable. The Client shall also be responsible for all other expenses and costs incurred by PCSA due to delays in access to the Equipment.
6.5 The failure of PCSA to deliver shall not entitle either party to treat this contract as repudiated.
6.6 PCSA shall not be liable for any loss or damage whatever due to failure by PCSA to deliver the Equipment (or any of it) promptly, or at all, where due to circumstances beyond the control of PCSA.
7 Risk
7.1 PCSA retains property in the Equipment nonetheless all risk for the Equipment passes to the Client on delivery.
7.2 The Client accepts full responsibility for the safekeeping of the Equipment and indemnifies PCSA for all loss, theft, or damage to the Equipment howsoever caused and without limiting the generality of the foregoing whether or not such loss, theft, or damage is attributable to any negligence, failure, or omission of the Client.
7.3 The Client will insure, or self insure, PCSA’s interest in the Equipment against physical loss or damage including, but not limited to, the perils of accident, fire, theft and burglary and all other usual risks and will effect adequate Public Liability Insurance covering any loss, damage or injury to property arising out of the Equipment. Further the Client will not use the Equipment nor permit it to be used in such a manner as would permit an insurer to decline any claim.
7.4 The Client accepts full responsibility for and shall keep PCSA indemnified against all liability in respect of all actions, proceedings, claims, damages, costs and expenses in respect of any injury to persons or damage to property arising out of the use of the Equipment during the hire period however arising and whether or not arising from any negligence, failure or omission of the Client or any other persons.
8 Title
8.1 The Equipment is and will at all times remain the absolute property of PCSA.
8.2 If the Client fails to return the Equipment to PCSA then PCSA or PCSA’s agent may enter upon and into land and premises owned, occupied or used by the Client, or any premises where the Equipment is situated as the invitee of the Client and take possession of the Equipment, without being responsible for any damage thereby caused.
8.3 The Client is not authorised to pledge PCSA’s credit for repairs to the Equipment or to create a lien over the Equipment in respect of any repairs.
9 Defects
9.1 The Client shall inspect the Equipment on delivery and shall within forty eight (48) hours notify PCSA of any alleged defect, shortage in quantity, damage or failure to comply with the description or quote. The Client shall afford PCSA an opportunity to inspect the Equipment (at PSCA’s premises) within a reasonable time following delivery if the Client believes the Equipment is defective in any way. If the Client shall fail to comply with these provisions the Equipment shall be presumed to be free from any defect or damage. For defective Equipment, which PCSA has agreed in writing that the Client is entitled to reject, PCSA’s liability is limited to either repairing or replacing the Equipment, except where the Client has hired Equipment as a consumer within the meaning of the Trade Practices Act 1974 (CWlth) or the Fair Trading Acts of the relevant state or territories of Australia, and is therefore also entitled to, at the consumer’s discretion either a refund of the hire price of the Equipment, or repair of the Equipment, or replacement of the Equipment.
10 Warranty
10.1 No Warranty is provided by PCSA in respect of the condition of the Equipment or its fitness for any particular purpose. The Client shall indemnify and hold harmless PCSA in respect of all claims arising out of use of the Equipment.
11 Client’s Responsibilities
11.1 The Client shall:
(a) at all times arrange a suitable supply of electricity for use with the Equipment;
(b) ensure that secure supplies to computer and other sensitive equipment are not jeopardised by the use of the Equipment;
(c) operate the Equipment safely, strictly in accordance with the law, only for its intended use, and in accordance with any manufacturer’s instruction (whether supplied by PCSA or posted on the Equipment) or the operation instructions of the Equipment, with regard to fuse rating and type, and switching on the Equipment;
(d) keep themselves acquainted with the state and condition of the Equipment and ensure it remains safe, serviceable and clean. Routine maintenance required for the continued efficient operation of the Equipment shall be carried out by the Client in accordance with the Equipment’s operation manual;
(e) notify PCSA immediately by telephone of the full circumstances of any mechanical breakdown or accident. The Client is not absolved from the requirements to safeguard the Equipment by giving such notification;
(f) satisfy itself at commencement that the Equipment is suitable for its purposes;
(g) comply with all occupational health and safety laws relating to the Equipment and its operation;
(h) on termination of the hire, the Client shall deliver the Equipment complete with all parts and accessories clean and in good order as delivered, fair wear and tear accepted, to PCSA;
(i) not alter or make any additions to the Equipment including but without limitation altering, make any additions to, defacing or erasing any identifying mark, plate or number on or in the Equipment or in any other manner interfere with the Equipment;
(j) not fix any of the Equipment in such a manner as to make it legally a fixture forming part of any freehold.
11.2 Immediately on request by PCSA the Client will pay:
(a) the new list price of any Equipment that is for whatever reason destroyed, written off or not returned to PCSA;
(b) all costs incurred in cleaning the Equipment;
(c) all costs of repairing any damage caused by the ordinary use of the Equipment up to an amount equal to ten percent (10%) of the new list price of the Equipment;
(d) the cost of repairing any damage to the Equipment caused by the negligence of the Client or the Client’s agent;
(e) the cost of repairing any damage to the Equipment caused by vandalism, or (in PCSA’s reasonable opinion) in any way whatsoever other than by the ordinary use of the Equipment by the Client.
12 Cancellation
12.1 PCSA may cancel these terms and conditions or cancel delivery of Equipment at any time before the Equipment is delivered by giving written notice. On giving such notice PCSA shall repay to the Client any sums paid in respect of the Price. PCSA shall not be liable for any loss or damage whatever arising from such cancellation.
12.2 In the event that the Client cancels delivery of the Equipment the Client shall be liable for any loss incurred by PCSA (including, but not limited to, any loss of profits) up to the time of cancellation.
13 Default & Consequences Of Default
13.1 Interest on overdue invoices shall accrue daily from the date when payment becomes due, until the date of payment, at a rate of two and one half percent (2.5%) per calendar month (and at the Client’s sole discretion such interest shall compound monthly at such a rate) after as well as before any judgment.
13.2 In the event that the Client’s payment is dishonoured for any reason the Client shall be liable for any dishonour fees incurred by PCSA.
13.3 If the Client defaults in payment of any invoice when due, the Client shall indemnify PCSA from and against all costs and disbursements incurred by PCSA in pursuing the debt including legal costs on a solicitor and own client basis and PCSA’s collection agency costs.
13.4 Without prejudice to any other remedies PCSA may have, if at any time the Client is in breach of any obligation (including those relating to payment) PCSA may repossess the Equipment as per clause 8.2, or suspend or terminate the supply of Equipment to the Client and any of its other obligations under the terms and conditions. PCSA will not be liable to the Client for any loss or damage the Client suffers because PCSA has exercised its rights under this clause.
13.5 If any account remains overdue after thirty (30) days then an amount of the greater of $20.00 or 10.00% of the amount overdue (up to a maximum of $200) shall be levied for administration fees which sum shall become immediately due and payable.
13.6 Without prejudice to PCSA’s other remedies at law PCSA shall be entitled to cancel all or any part of any order of the Client which remains unperformed in addition to and without prejudice to any other remedies PCSA may have and all amounts owing to PCSA shall, whether or not due for payment, become immediately payable in the event that:
(a) any money payable to PCSA becomes overdue, or in PCSA’s opinion the Client will be unable to meet its payments as they fall due; or
(b) 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
(c) a receiver, manager, liquidator (provisional or otherwise) or similar person is appointed in respect of the Client or any asset of the Client.
14 Security And Charge
14.1 Despite anything to the contrary contained herein or any other rights which PCSA may have howsoever:
(a) where the Client and/or the Guarantor (if any) is the owner of land, realty or any other asset capable of being charged, both the Client and/or the Guarantor agree to mortgage and/or charge all of their joint and/or several interest in the said land, realty or any other asset to PCSA or PCSA’s nominee to secure all amounts and other monetary obligations payable under the terms and conditions. The Client and/or the Guarantor acknowledge and agree that PCSA (or PCSA’s nominee) shall be entitled to lodge where appropriate a caveat, which caveat shall be released once all payments and other monetary obligations payable hereunder have been met.
(b) should PCSA elect to proceed in any manner in accordance with this clause and/or its sub-clauses, the Client and/or Guarantor shall indemnify PCSA from and against all PCSA’s costs and disbursements including legal costs on a solicitor and own client basis.
(c) the Client and/or the Guarantor (if any) agree to irrevocably nominate constitute and appoint PCSA or PCSA’s nominee as the Client’s and/or Guarantor’s true and lawful attorney to perform all necessary acts to give effect to the provisions of this clause 14.1.
15 Privacy Act 1988
15.1 The Client and/or the Guarantor/s agree for PCSA to obtain from a credit reporting agency a credit report containing personal credit information about the Client and Guarantor/s in relation to credit provided by PCSA.
15.2 The Client and/or the Guarantor/s agree that PCSA may exchange information about the Client and the Guarantor/s with those credit providers either named as trade referees by the Client or named in a consumer credit report issued by a credit reporting agency for the following purposes:
(a) to assess an application by the Client; and/or
(b) to notify other credit providers of a default by the Client; and/or
(c) to exchange information with other credit providers as to the status of this credit account, where the Client is in default with other credit providers; and/or
(d) to assess the credit worthiness of the Client and/or Guarantor/s.
15.3 The Client consents to PCSA being given a consumer credit report to collect overdue payment on commercial credit (Section 18K (1) (h) Privacy Act 1988).
15.4 The Client agrees that personal credit information provided may be used and retained by PCSA for the following purposes and for other purposes as shall be agreed between the Client and PCSA or required by law from time to time:
(a) the provision of Equipment on hire; and/or
(b) marketing of services by PCSA, its agents or distributors in relation to the Equipment; and/or
(c) analysing, verifying and/or checking the Client’s credit, payment and/or status in relation to provision of Equipment on hire; and/or
(d) processing of any payment instructions, direct debit facilities and/or credit facilities requested by Client; and/or
(e) enabling the daily operation of Client’s account and/or the collection of amounts outstanding in the Client’s account in relation to the hire of the Equipment.
15.5 PCSA may give information about the Client to a credit reporting agency for the following purposes:
(a) to obtain a consumer credit report about the Client; and/or
(b) allow the credit reporting agency to create or maintain a credit information file containing information about the Client.
16 General
16.1 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.
16.2 These terms and conditions and any contract to which they apply shall be governed by the laws of Western Australia and are subject to the jurisdiction of the courts of Western Australia.
16.3 PCSA shall be under no liability whatever to the Client for any indirect loss and/or consequential loss and/or expense (including loss of profit) suffered by the Client arising out of a breach by PCSA of these terms and conditions.
16.4 In the event of any breach of this contract by PCSA the remedies of the Client shall be limited to damages. Under no circumstances shall the liability of PCSA exceed the Price.
16.5 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 PCSA.
16.6 PCSA may license or sub-contract all or any part of its rights and obligations without the Client’s consent.
16.7 PCSA reserves the right to review these terms and conditions at any time. If, following any such review, there is to be any change to these terms and conditions, then that change will take effect from the date on which PCSA notifies the Client of such change.
16.8 Neither party shall be liable for any default due to any act of God, war, terrorism, strike, lock-out, industrial action, fire, flood, storm or other event beyond the reasonable control of either party.
16.9 The failure by the Client to enforce any provision of these terms and conditions shall not be treated as a waiver of that provision, nor shall it affect the Client’s right to subsequently enforce that provision.
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