For Commercial & Industrial Hire
1. DEFINITIONS
The following terms have the meanings unless the context otherwise requires:
Agreement means these Terms and Conditions.
Equipment means all goods, articles, air conditioning and all equipment supplied by the Owner to the Hirer, and any and all associated goods and accessories to that equipment;
Event of Default means any of the following:
a) The Hirer fails to pay any amount due under these Terms and Conditions by the due date specified by the Owner;
b) The Hirer breaches any of its obligations under these Terms and Conditions, and such breach is not remedied within seven (7) days after written notice from the Owner specifying the breach and requiring remediation;
c) The Hirer becomes Insolvent;
d) The Hirer uses the Equipment in a manner that is inconsistent with these Terms and Conditions, including making unauthorised modifications to the Equipment, failing to maintain the Equipment as required, damaging the Equipment, removing the Equipment from the Premises without the prior written consent and approval of the Owner or not using the Equipment for its intended purpose.
Government Action means any new cost or charge or any increase to any existing cost of charge payable to or at the direction of any Government, Council, legislative body or other authority.
Hirer means the person or company who is hiring the Equipment from the Owner.
Insolvent means:
a) entering into ‘administration’,
b) executing a ‘deed of company arrangement’,
c) having a ‘liquidator’, ‘receiver’ or ‘receiver and manager’ appointed to it or any of its assets;
d) entering into a ‘small business restructuring plan’,
e) becoming ‘deregistered’;
f) becoming insolvent under administration’ (each as defined under the Corporations Act 2001 (Cth));
g) dying or is otherwise is not able to pay all of its debts as and when they become due and payable.
Off-Hire Number is the number given to the Hirer by the Owner when the Hirer notifies the Owner in writing that the Equipment is available for return, the location at which it shall be available and when the Equipment can be collected;
Owner means Aircon Rentals Pty Limited (ACN 003 454 680)
Period of Hire has the meaning given by clause 2(e).
PPSA means the Personal Property Securities Act 2009 (Cth);
Premises means the premises where the Equipment will be located and used and must first be approved to by the Owner.
Security Interest has the meaning given to it in the PPSA.
2. HIRE OF EQUIPMENT AND PERIOD OF HIRE
(a) The Owner agrees to rent the Equipment to the Hirer for the Period of Hire and the Hirer agrees to accept the Equipment on hire for that period and to pay all rental and all other applicable charges for the Equipment for the Period of Hire, together with any applicable GST, on the terms and conditions set out in this Agreement.
(b) The Hirer is entitled to use the equipment for the Period of Hire andfor any agreed extension of the Period of Hire at the Premises only.
(c) The Hirer agrees that during the Period of Hire, the Equipment will be held at the Premises only and the Hirer will not move, relocate or transfer the Equipment outside of the Premises or to another premises without prior written consent and approval from the Owner.
(d) At the end of the Period of Hire, the Owner will collect the Equipment from the Hirer unless otherwise agreed.
(e) The Period of Hire:
(i) commences on the earlier of:
(A) the commencement date and time shown on the quote provided by the Owner or as otherwise specified by the Owner; or
(B) at the time the Equipment is delivered to the Hirer;
(ii) terminates of the later of:
(A) when the Equipment is collected by the Owner; and
(B) when all amounts, charges or fees incurred by the Owner under these terms is paid in full by the Hirer to the Owner.
3. CALCULATION OF HIRE CHARGES AND PAYMENTS
(a) The Hirer acknowledges that the hiring charges of the Owner are at the rates specified in the quote provided by the Owner or otherwise as notified in writing by the Owner to the Hirer which are subject to change at the Owners discretion.
(b) If there is a rate of payment, a quotation or document titled “standard charter of charges” supplied to the Hirer then those rates and charges shall be deemed to constitute the hiring charge for the purpose of this Agreement which are subject to change at the Owners discretion.
(c) The Hirer acknowledges that the hiring charges will commence from the commencement of Period of Hire and will continue until the Period of Hire terminates.
(d) Any transport delays other than through the negligence of Owner shall at the discretion of Owner incur a surcharge.
(e) The Hirer is responsible for all freight, travel and other charges in connection with the return and delivery of the Equipment to the Owner.
(f) In the event that the Hirer provides written notice to the Owner that the Equipment is faulty or there has been a breakdown (other than for reasons due to the Hirer’s negligence, use or misuse of the Equipment) and the Equipment is to be returned to the Owner, the Owner is responsible for the freight and travel charges in respect of the Equipment.
(g) The Hirer shall pay the Owner on the termination of the Period of Hire:
(i) the hiring charge;
(ii) the amount of any loss or damage to the Equipment,
(iii) the amount of levies, charges or like amounts paid or payable by the Owner to any government body in respect of use of the Equipment;
(iv) the cost of freight, travel and any other charges incurred by the Owner or the Hirer in respect of delivery or return of the Equipment; and
(v) any costs incurred by the Owner in repossessing the Equipment.
4. PAYMENT TERMS AND EVENTS OF DEFAULT
(a) The Hirer shall, prior to the commencement of the Period of Hire, pay to the Owner an amount that represents one week’s Hiring Charge and the Owner’s installation and removal costs as determined by the Owner.
(b) The Hirer acknowledges that the Owner’s payment terms are 30 days from the date of each invoice issued to the Hirer or such other period as the Owner notifies the Hirer.
(c) All amounts payable by the Hirer shall be free of set-off, counter claim, cross demands, retentions or deductions unless prior approved in writing by the Owner.
(d) No Off-Hire Number or stand-down rate will apply unless agreed to by the Owner and Hirer in writing prior to the commencement of the Period of Hire, or otherwise at the discretion of the Owner.
(e) At any time the Owner may increase the hiring charge by such amount as is reasonably determined by the Owner and by providing written notice to the Hirer.
(f) If an Event of Default occurs:
(i) all amounts, including those not yet due, become immediately due and payable to the Owner by the Hirer;
(ii) all amounts due will incur interest at a rate of 10% per month compounding daily from the due date; and
(iii) the Hirer shall indemnify and keep indemnified the Owner from and against all recovery costs, expenses, fees and disbursements the Owner incurs to enforce its rights under this Agreement including but not limited to legal costs on a solicitor and own client basis and any collection agency costs associated with collection of the Equipment and such sums will be claimable as a liquidated debt from the Hirer.
5. USE OF THE EQUIPMENT
(a) The Hirer must at all times use the Equipment in a skilful and proper manner and shall at the Hirer’s own expense service and clean the Equipment and maintain the Equipment in good and substantial repair and condition, reasonable wear and tear excepted.
(b) In the event that the Hirer fails to comply with its obligations in clause 5(a), the Hirer acknowledges that any and all costs incurred by the Owner in arranging for the service, clean, maintenance and replacement of the Equipment will form part of any debt owing from the Hirer to the Owner.
(c) Before using the Equipment the Hirer must first examine and satisfy themselves as to the quality and fitness for the purpose of the Equipment. If in any way the Equipment is defective or unsuitable for the purpose of the Hirer:
(i) the Hirer must immediately notify the Owner and provide a written explanation as to why they believe the Equipment is defective or unsuitable for their use;
(ii) subject to the validity of the Hirer’s explanation (to be determined by the Owner in their absolute discretion) the Owner may elect to exchange the Equipment.
(d) The Hirer acknowledges that the Hirer is not relying upon any representations made by or on behalf of the Owner in respect of the Equipment, or its performance, fitness for any purpose or quality.
(e) The Hirer:
(i) must use the Equipment solely for the purpose for which it is designed;
(ii) must not modify or alter the Equipment in any way;
(iii) must not remove the Equipment from the Premises that has been notified to the Owner;
(iv) must use the Equipment only in accordance with the manufacturer’s recommendations and with the Owner’s directions from time to time and in accordance with the applicable legislation and regulations;
(v) must take all necessary precautions to ensure that the Equipment is not damaged in any way, other than fair wear and tear;
(vi) must store the Equipment at the Premises in accordance with the Owner’s recommendations and with the Owner’s directions from time to time; and
(vii) must grant reasonable access to the Owner to allow the Owner to inspect the Equipment from time to time during the Term.
6. SUITABILITY OF HIRER’S PREMISES AND HIRER’S WARRANTY
(a) The Hirer warrants to the Owner that the Premises at which the Equipment is to be delivered, installed, operated or use and will remain for the duration of the hire period, is equipped with all necessary and suitable infrastructure, including but not limited to:
(i) adequate and compliant electrical supply and connections;
(i) sufficient ventilation and airflow;
(i) appropriate structural support and load-bearing capacity; and
(i) any other facilities or conditions required for the safe, effective and lawful installation, operation and use of the equipment.
(b) The Hirer acknowledges that the Owner is relying on the warranties and representations set out in clause 6(a) in supplying, delivering, installing and hiring the Equipment to the Hirer.
(c) The Hirer further warrants that all necessary consents, permits and approvals required for the installation and operation of the Equipment at the Premises have been obtained and will be maintained for the duration of the hire period.
(d) The Hirer must, upon request by the Owner, promptly provide evidence satisfactory to the Owner of the suitability of the Premises and compliance with the warranties in this clause.
(e) The Hirer indemnifies, and must keep indemnified, the Owner and its officers, employees, agents and contractors from and against any and all claims, demands, actions, damages, losses, liabilities, costs, charges or expenses (including legal costs on a full indemnity basis) suffered or incurred by the Owner arising out of or in connection with:
(i) any breach of the warranties or representations in this clause by the Hirer;
(ii) any failure of the Premises to have the necessary or suitable infrastructure, electrical supply, ventilation, structural support or other requirements for the installation, operation or use of the equipment; and
(iii) any loss, damage or injury to any person or property resulting from or in connection with the installation, operation or use of the equipment at the Premises, to the extent caused or contributed to by the condition or suitability of the Premises.
(f) This indemnity is a continuing obligation, independent of the Hirer’s other obligations under this Agreement, and survives the termination or expiry of this Agreement.
7. EQUIPMENT MAINTENANCE
(a) The Owner will provide the Equipment to the Hirer in clean and good working order.
(b) The Hirer must maintain the Equipment in accordance with the manufacturer’s recommendations and with the Owner’s directions from time to time and otherwise, so as to ensure that the Equipment remains in the same condition as it was supplied to the Hirer, fair wear and tear excepted.
8. DAMAGE TO EQUIPMENT AND LOSS OF EQUIPMENT
(a) During the Period of Hire and any period that the Hirer has possession of the Equipment, the Hirer shall be responsible for any loss or damage to the Equipment.
(b) If an Off-Hire Number has been given to the Owner the Hirer’s responsibility shall continue until the Equipment is picked up by the Owner..
(c) The Hirer’s responsibility referred to in sub-clauses 7(a) and 7(b) remains with the Hirer during any period after the Hirer has received an Off-Hire Number if the Equipment is not available for collection at the location specified by the Hirer.
(d) Where the Hirer is responsible for the damage to or loss of the Equipment the whole cost of replacement or repair to the Equipment will form part of the debt owing by the Hirer to the Owner.
(e) Where Equipment is not returned to the Owner by the Hirer, within 2 days of the expiration for the Period of Hire the Owner shall be at liberty to recover possession of the Equipment at the cost and expense of the Hirer and may take any action as it deems necessary for the recovery of possession of the Equipment or the current list price of the Equipment at the commencement of the Period of Hire.
(f) The Owner is not responsible to the Hirer for any loss or damage, injury, fines or costs incurred or sustained by the Hirer in respect of any costs, losses or damages arising from any such recovery actions.
(g) The Hirer fully indemnifies the Owner in respect of all actions, claims, suits, demands or expenses arising out of or in connection with the use of the Equipment by the Hirer or any person under the Hirer’s control during the Period of Hire.
9. BREAKDOWN AND DAMAGE TO PROPERTY OF AND INJURY TO THIRD PARTIES
(a) In the event of a breakdown or failure of the Equipment or defect in the Equipment becoming apparent during the Period of Hirer, the Hirer shall notify the Owner immediately.
(b) The Hirer must not repair or attempt to repair or cause any repair to be made to the Equipment without the prior written consent of the Owner.
(b) If the breakdown or failure is caused by reasonable wear and tear or a defect in the Equipment at the commencement of the Period of Hire, and was not caused or contributed to by misuse or negligence of the Hirer or any person under the Hirer’s control, the Period of Hire shall cease on the later of the Owner being notified in writing and the Equipment being returned to the Owner.
10. EXCLUSION OF LIABILITY
(a) If the Goods have a value or are of a kind ordinarily acquired for personal, domestic or household use or consumption such as to attract to this Agreement the operation of the provisions of the Competition and Consumer Act 2010 (Cth) (including the Australian Consumer Law) and any relevant legislation of any other State or Territory, certain conditions and warranties are implied into this Agreement and rights and remedies conferred upon the Hirer with respect to the Equipment which cannot be excluded, restricted or modified by agreement (Non-Excludable Terms).
(b) If there are any Non-Excludable Terms in this Agreement the provisions of sub-clause 9(c) does not apply to them.
(c) Subject to sub-clauses 9(a) and 9(b), the Hirer agrees that to the fullest extent permitted by law neither the Owner gives, nor any dealer, other previous owner of the Equipment or any person purporting to act with the authority of the Owner has given, any condition, warranty or representation whatsoever in favour of the Hirer:
(i) as to the condition or quality of the Equipment including, without limitation, latent and other defects and whether or not discoverable by the Owner or the Hirer;
(ii) as to the suitability or fitness for ordinary or any special use or purpose of the Equipment; or
(iii) as to the correspondence by the Equipment to any description of them.
(d) No further or other covenants or provisions, whether in respect of the Equipment or otherwise is deemed to be implied into this Agreement or will arise between the Hirer and the Owner by way of collateral or other agreement by reason of any promise, representation, warranty or undertaken given or made by the Owner, any dealer, other previous owner of the Equipment or any person purporting to act with the authority of the Owner on or prior to the date of this Agreement. The existence of any such implication or collateral or other agreement is by this negatived.
(e) Any covenant or provision which is deemed by statute to be incorporated into this Agreement but the operation of which may be lawfully excluded, restricted or modified by agreement between the Hirer and the Owner or otherwise is by this, to the maximum extent possible, so excluded, restricted or modified.
(f) Subject to sub-clauses 9(a) and 9(b), and to the extent permitted by law, in no event is the Owner liable (whether before or after the expiry of the Period of Hire) for any loss or damage which the Hirer suffers arising from, or caused or contributed to by, the Owner’s negligence or the negligence of the Owner’s servants or agents. Nor is the Owner liable for special, indirect or consequential loss or damage as a result of a breach by the Owner of this Agreement including, but not limited to, loss of profits or revenue, the costs arising from the loss of use of the Equipment and costs of any substitute Equipment which the Hirer acquires.
11. OWNERSHIP, RISK AND IDENTIFICATION
(a) The legal and beneficial ownership of the Equipment remains the sole and exclusive property of the Owner.
(b) Risk in and responsibility for the Equipment passes to the Hirer when the Equipment is delivered.
(c) Risk and responsibility for the Equipment remains with the Hirer until the Equipment is returned to the Owner in the condition in which it was provided to the Hirer, fair wear and tear excepted and until all charges and repair and damages costs assessed by the Owner are paid by the Hirer.
(d) The Equipment must not be removed from the Premises and the Hirer must not otherwise part with the possession of the Equipment outside of its ordinary course of business and without the prior written consent of the Owner.
(e) The Hirer must not deface, remove or alter any identification plate or other form of identification from the Equipment.
(f) The Hirer must not grant or purport to grant any security interest over any of the Equipment without the prior written consent of Owner.
(g) The Hirer is solely responsible for any damage to, spoilage of or theft of any contents stored in the Equipment during the Term including but not limited to while the Equipment is in the possession, care, custody or control of the Hirer or where the Hirer has allowed the Equipment to be held, kept or stored at any premises.
12. INDEMNITIES
(a) The Hirer agrees to use, operate and possess the Equipment at the Hirer’s risk. The Hirer agrees that the Owner does not have any responsibility or liability for any loss or damage to any property of the Hirer. To the fullest extent permitted by law the Hirer releases and discharges the Owner and its agents and employees from:
(i) all claims and demands on the Owner; and
(ii) any loss or damage whatsoever and whenever caused to the Hirer or its agents or employees whether by way of death of, or injury to, any person of any nature or kind, accident or damage to property, delay, financial loss or otherwise, arising directly or indirectly from or incidental to a breakdown of, or defect in, the Equipment or any accident to or involving the Equipment or their use, operation, repair, maintenance or storage (whether occasioned by the negligence of the Owner or otherwise) or which may otherwise be suffered or sustained in, upon or near the Equipment.
(b) The Hirer assumes liability for, and indemnifies and will keep indemnified, protected, saved and harmless the Owner and its agents and employees from and against any and all injuries, actions, proceedings, claims, demands, liabilities, losses, damages, costs, penalties and all expenses legal or otherwise (including court costs and legal fees reasonably incurred) and of whatsoever kind and nature (including claims based upon strict liability in tort):
(i) arising out of or alleged to arise out of the delivery, selection, purchase, acceptance or rejection, ownership, possession, use (including by reason of the use or incorporation of any invention resulting in infringements of patents), repair, maintenance, storage, or operation of the Equipment, and by whomever used or operated;
(ii) incurred by the Owner in respect of any loss of the Equipment by seizure, distress, execution or other legal process, confiscation or forfeiture of the Equipment; or
(iii) arising out of any claim for patent, trademark or copyright infringement, for strict liability, or for any reason being made against the Owner in connection with the Equipment or its operation.
(c) The Hirer indemnifies and keeps indemnified, protected, saved and harmless the Owner against any liability or additional liability the Owner may incur under the Income Tax Assessment Act 1936 (Cth) or Income Tax Assessment Act 1997 (Cth) by reason of use of the Equipment for any purpose.
(d) If the Owner’s liability for income tax is increased or is payable earlier because deductions at the depreciation rates which the Hirer may have represented to the Owner as applicable to the Equipment or their use or upon which the Owner may have relied for calculation of the rent are not for any reason allowed in full at the times they would normally have been allowed then the Hirer must pay to the Owner on demand by the Owner such amount as will result in the after-tax yield to the Owner being the same as it would have been but for such increase or acceleration in liability.
(e) The indemnities and assumptions of liability contained in sub-clauses 12(a), 12(b), 12(c) and 12(d) continue in full force and effect even though the termination of this Agreement whether by expiration of time or otherwise as to any act or omission relating to the Equipment occurring during the continuance of this Agreement which at any time is claimed to have created a cause of action against the Owner or assumption of liability by the Hirer. The indemnities and assumption of liability against any claims for patent infringements continue in full force and effect throughout the life of the Equipment, except as to any alterations or modifications to the Equipment occurring after the termination of this Agreement.
13. EXCLUSION OF CONSEQUENTIAL LOSS AND INDEMNITY
(a) The Owner shall not be liable for any consequential, indirect, or special loss or damage to Equipment on site and Equipment failure, including for loss of profits, revenue, or business (consequential loss) from the Hirer or any third party whatsoever arising out of or in connection with:
(i) any fault, defect, or failure of the Equipment; or
(ii) any damage caused by the Equipment to the Hirer or any third party.
(b) The Hirer agrees to fully release, indemnify and hold the Owner harmless from and against any and all claims, demands, actions, proceedings, damages, costs, losses, consequential loss and expenses (including legal fees on a solicitor and own client basis) arising out of or in connection with:
(i) any claim made by a third party against the Owner for consequential loss caused by the Equipment; or
(ii) any fault, defect, or failure of the Equipment during the Period of Hire.
14. TERMINATION
(a) The Hirer has the right, subject to the conditions set out in sub-clause 13(b), to terminate this Agreement during the Period of Hire in respect of all, or any specified part, of the Equipment on any date rent is payable under this Agreement (proposed termination date). The Hirer may exercise this right by serving Off Hire Numberto the Owner and stating that the Hirer wishes to terminate this Agreement in respect of all such part of the Equipment on the proposed termination date.
(b) This Agreement may only be terminated or partially terminated under sub-clause 13(a) if on both the date of service of the notice under sub-clause 13(a) and the proposed termination date:
(i) the Owner collects the Equipment or the specified part of the Equipment, at the Hirer’s expense, appropriately protected and in the condition required, to the Owner; and
(ii) the Hirer pays to the Owner on the proposed termination date all monies owed to the Owner in respect of all or such part of the Equipment as at that date.
(c) Where this Agreement is terminated under sub-clause 13(a) as to part only of the Equipment, the Owner will determine the amount of monies owed to the Owner for the purposes of sub-clause 13(b) and the revised rent in respect of the remainder of the Equipment by reference to the proportion of the value, utility or other relevant measure of the part of the Equipment to which the termination applies. The Owner will inform the Hirer in writing of such Balance Due and rent, giving the basis of its calculations, within 3 days of receiving the Hirer’s notice of termination under sub-clause 13(a). The Hirer may, within 3 days of receiving such information, withdraw its notice of termination should it elect to do so.
(d) The Owner may terminate this Agreement by written notice to the Hirer with immediate effect if:
(i) the Hirer breaches any provision of the Agreement.
15. TERMINATION OR EXPIRATION OF THE AGREEMENT
(a) On the termination or expiry of the Agreement, the Hirer must:
(i) return the Equipment to the Owner at the location nominated by the Owner;
(ii) allow the Owner such access to the Premises or otherwise at Hirer’s cost so as to allow Owner to collect the Equipment;
(iii) pay to the Owner all costs of repairing any damage to the Equipment other than fair wear and tear; and
(iv) pay to the Owner any and all other charges owing under this Agreement, and any legal fees to recover possession of the Equipment.
16. HIRER’S ACKNOWLEDGEMENTS
The Hirer acknowledges that;
(a) it was aware of the performance specifications of the Equipment prior to entering into the Agreement;
(b) it has not relied on any representations of the Owner, its employees or agents in choosing the Equipment or determining whether the Equipment is fit for its purpose;
(c) it inspected the Equipment prior to entering into the Agreement and accepted the Equipment in its then current condition.
17. DEALINGS WITH EQUIPMENT AND ASSIGNMENT
(a) the hirer must not without the owner’s prior written consent:
(i) agree, attempt, offer or purport to sell, assign, sublet, lend, pledge, mortgage, let on hire, grant a Security Interest in, allow any lien or other encumbrance to arise in, or otherwise part with or attempt to part with the personal possession of or otherwise deal with, the Equipment or any part of the Equipment; or
(ii) conceal or alter the Equipment or make any addition to the Equipment except as required by the Owner in writing.
(b) The Owner may at any time grant a Security Interest in, assign or otherwise deal with the Equipment or its right, title and interest pursuant to this Agreement. The Hirer must not assign or grant a Security Agreement in this Agreement or any of its rights or obligations under this Agreement without the prior written consent of the Owner.
18. TRANSPORT SERVICES
(a) Where the Owner or its subcontractors provide delivery, carriage, collection or relocation Services, it is agreed that neither the Owner nor its subcontractors are common carriers and accept no liability as such. All delivery, carriage, collection or relocation Services are performed at the Hirer’s risk and to the extent permitted by law the Hirer bears the risk of loss or damage arising out of the equipment or its contents.
(b) The Hirer must not place or cause to be placed into the Owner’s Equipment any material or items that are or are liable to be explosive, flammable, hazardous or damaging without presenting to the Owner a full description of such material or items and this obligation must be part of any term of sub-hire, in favour of the Owner.
19. ENTIRE AGREEMENT
This Agreement:
(a) constitutes the entire Agreement of the parties as to its subject matter and supersedes all prior representations and agreements in connection with that subject matter; and
(b) may only be altered in writing signed by all parties.
20. GOVERNING LAW AND JURISDICTION
(a) This Agreement is governed by the laws of New South Wales.
(b) Each party irrevocably and unconditionally submits to the exclusive jurisdiction of the Courts in New South Wales.
21. NOTICE
(a) A notice to be given by a party to another party under the Agreement must be:
(i) in writing
(ii) directed to the recipients address specified in this document or as varied by the written notice: and
(iii) left at or sent by prepaid registered post, hand delivery or email to that address, and will be deemed to be duly given:
(iv) on the day of delivery;
(v) 3 days after the date posting by prepaid registered post; or
(vi) if sent by email, when the message confirmation is received.
(b) The provision of this clause is in addition to any other mode of service permitted by law.
22. TAXES
Any duty or other taxes levied on or payable by the Owner in connection with this Agreement must be paid by the Hirer to the Owner on demand.
23. PERSONAL PROPERTIES SECURITIES ACT 2009 (‘PPSA”)
(a) Words and phrases that have defined meanings in the PPSA have the same meaning as in the PPSA unless the context indicates otherwise.
(b) The Hirer grants to the Owner a Security Interest in the Equipment to secure:
the payment of all money that the Hirer is or at any time may become actually or contingently liable to pay to or for the account of the Owner for any reason under or in connection with this Agreement (including money by way of principal, interest, fees, costs, indemnities, guarantees, charges, duties or expenses or payment of liquidated or unliquidated damages for which the Hirer is or at any time may become liable under or in connection with this Agreement, or as a result of a breach of or default under or in connection with this Agreement; and
the punctual performance of all of the Hirer’s other obligations to the Owner at any time.
(c) The Owner and the Hirer acknowledge that this Agreement creates a Security Interest under the PPSA and may give rise to a Purchase Money Security Interest (PMSI) in favour of the Owner over the Equipment supplied or to be supplied on hire to the Hirer pursuant to this Agreement.
(a) The Equipment supplied or to be supplied under this Agreement falls within the PPSA classification of “Other Goods”.
(a) The Owner and the Hirer acknowledge that the Owner, as Secured Party, is entitled to register its Security Interest in the Equipment supplied or to be supplied to the Hirer on hire under this Agreement on the Personal Property Securities Register as Collateral.
(a) To the extent permissible at law, the Hirer:
(i) waives its right to receive notification of or a copy of any Verification Statement confirming registration of a Financing Statement or a Financing Change Statement relating to a Security Interest granted by the Hirer to the Owner;
(ii) agrees to indemnify the Owner on demand for all costs and expenses, including legal costs and expenses on a solicitor / client basis, associated with the:
A. registration or amendment or discharge of any Financing Statement registered by or on behalf of the Owner; and
B. enforcement or attempted enforcement of any Security Interest granted to the Owner by the Hirer.
(g) The Hirer agrees, to the extent permissible at law, to the following:
(i) that nothing in sections 130 or 143 of the PPSA will apply to this Agreement or the Security under this Agreement;
(ii) to waive its right to do any of the following under the PPSA:
A. receive notice of removal of an Accession under section 95;
B. receive notice of an intention to seize Collateral under section 123;
C. object to the purchase of the Collateral by the Secured Party under section 129;
D. receive notice of disposal of Collateral under section 130;
E. receive a Statement of Account if there is no disposal under section 130(4);
F. receive a Statement of Account under section 132(3)(d) following a disposal showing the amounts paid to other Secured Parties and whether Security Interests held by other Secured Parties have been discharged.
G. receive notice of retention of Collateral under section 135;
H. redeem the Collateral under section 142; and
I. reinstate the Security Agreement under section 143.
(h) All payments received in connection with the Equipment are applied in the following order:
(i) to obligations that are not secured, in the order in which those obligations were incurred;
(ii) to obligations that are secured, but not by purchase money security interests, in the order in which those obligations were incurred;
(iii) to obligations that are secured by purchase money security interests, in the order in which those obligations were incurred.
24. NO WAIVER
No waiver of any terms or conditions in this Agreement or failure to exercise a right or remedy by the Owner will be considered to imply or constitute a further waiver by the Owner of the same or any other term, condition, right or remedy.
25. SEVERANCE
Any terms herein found to be void, unenforceable or illegal may, to that extent, be severed from the Agreement