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Find Our Privacy Policy, Service Agreement & Rental Agreement Online Now
The User and the Guarantors hereby authorise and direct ETF, including its employees, contractors, agents and authorised representatives as follows in relation to information:
The Privacy Act 1988 (Cth) regulates the way in which personal information about customers can be used by certain recipients of that information.
Purpose of Collection and Use
Certain personal information is required to enable ETF to:
assess the User’s and/or a Guarantor’s credit worthiness or net assets position including to and from a credit reporting agency in order to obtain a credit report about commercial credit worthiness or financial capacity including:
particulars about you which allow you to be identified;
the fact that credit has been previously sought;
the fact that you are a current credit provider;
payments which become overdue, and for which collection action has commenced;
advice that payments are no longer overdue;
any serious credit infringement;
advice that credit provided, paid or otherwise discharged.
administering insurance claims, recovering any money owed to ETF, maintaining the value and protecting any assets provided as security for any obligations under the Agreement and for use in connection with the outsourcing of any of ETF’s functions;
assist the User and/or a Guarantor to avoid defaulting on its contractual obligations;
identify and send to the User and/or a Guarantor any information about ETF’s other related products or services that may be of interest to the User and/or Guarantor unless you tick the box below;
to effectively maintain, repair and improve the Equipment provided to the User under the Agreement.
If the User and Guarantor do not provide ETF with the personal information requested, then ETF will be unable to assess the User’s or a Guarantor’s credit worthiness or net asset position. The information that might be required and the purpose for which it might be used as explained below information might be used.
PLEASE READ THIS CAREFULLY.
Disclosure of the User’s or Guarantor’s Personal Information
The types of organisations to which ETF usually discloses personal information include credit reporting agencies, government departments and authorities, insurers and underwriters, guarantors, agents, contractors, proposed assignees of ETF’s assets, ETF’s financiers, the Dealer, the Servicer and other third parties associated with ETF to enable ETF to carry out its functions, for example, mailing houses, debt collection agencies, mercantile agents, archive companies, valuers, call centre operators, solicitors, accountants, other funders, introducers, brokers and banks. The User and Guarantor/s consent to ETF collecting their personal information and using it for the purposes outlined in this document including disclosing their personal information to the types of organisations set out above.
Disclosure of personal information of a customer of a User
Although it is not a primary objective of ETF, at times ETF may also collect and disclose personal or sensitive information which the User may have collected from its customers. ETF usually only disclose personal information of the User’s Customers to the Servicer, but could in certain limited circumstances also be obliged to disclose it to one or more of its financiers. The User consents to the collection and the disclosure of the personal information of the User’s customers for the purposes outlined in this paragraph. In addition, the User warrants that it has obtained or will obtain from its customers their consent to disclose their personal information to ETF and for ETF to use that information as outlined in this paragraph. Where a customer’s personal information is extracted from Equipment located at the User’s location, or where the User discloses such information to ETF, the User is liable to ensure that the extraction, disclosure and use by ETF are duly authorised as required by terms of the Privacy Act 1988 (Cth), and the User indemnifies ETF against any loss or claim resulting from the unauthorised disclosure and/or use of its customer’s personal information.
Disclosure of Credit Information to a Credit Reporting Agency
The User and the Guarantors authorise ETF to give a credit reporting agency certain personal information about it for the purposes of enabling ETF to obtain a consumer credit report about the User and/or Guarantors, and/or to allow the credit reporting agency to create or maintain a credit information file containing information about the User and/or Guarantors. The information which ETF may disclose to the credit reporting agency is limited to:
the User’s or Guarantors identification (including your name, sex, address and the previous two addresses, date of birth, name of employer and driver’s licence number);
details of payments which become overdue for more than 60 days and for which collection action has commenced;
the fact that payments are no longer overdue;
details of cheques drawn by the User and/or Guarantors which have been dishonoured more than once;
the fact that in the recipient’s opinion the User or a Guarantor has committed a serious infringement or a default under an Agreement with a Recipient; and
the fact that a debt owing by the User or a Guarantor, has been paid or discharged.
Authority to Obtain Credit Information
The User and the Guarantors authorise ETF to obtain from:
a credit reporting agency a credit report containing personal or commercial information about the User or Guarantors in relation to personal or commercial credit provided to User or Guarantor;
a business which provides information about the commercial credit worthiness of persons information about the User’s or Guarantors’ commercial activities or commercial credit worthiness.
Authority to Exchange Credit Information with another Credit Provider
The User and Guarantors authorise ETF to give to and obtain from credit providers information about their credit worthiness, credit standing, credit history or credit capacity.
Authority to Disclose Certain Information to Joint Applicants
If a Guarantor is declined by ETF as guarantor due to adverse information on the Guarantor’s personal credit file, the Guarantor authorises ETF to notify the User of the fact that the guarantor has been rejected wholly or partly on information derived from a personal credit report relating to the Guarantor.
Authority to Disclose Certain Information to Guarantors
The User consents to ETF providing information about the User to any person who proposes to guarantee the User’s obligations to ETF for the purpose of allowing that person to assess whether to act as the User’s guarantor and/or indemnifier. After the guarantee is given, the User consents to ETF providing information about the User to the guarantor and/or indemnifier.
Guarantors Only: Authority to Obtain Information about a Guarantor
The Guarantors authorise ETF to obtain from a credit reporting agency a credit report containing personal credit information about the Guarantors to assess whether to accept a guarantor for the obligation the User in the Agreement.
Authority to Give Opinions
The User authorises ETF to give to or receive from another credit provider an opinion for purposes connected with the User’s business trade or profession.
Other Acknowledgements and Consents
The User and Guarantors consent to ETF exchanging information concerning its financial affairs with any person acting on its behalf including its agent, accountant, solicitor or broker.
The User and Guarantors acknowledge that ETF may exchange information with government authorities as required or authorised by law including the Australian Taxation Office.
The User and Guarantors agree that ETF may use its personal information for marketing purposes to tell the User about other related services and products which could suit your needs. If the User does not want this to happen then please tell us.
The User and Guarantors acknowledge that the above authorities and consents will continue until all the User and Guarantors obligations under the proposed Rental Agreement have been satisfied and payments owing to ETF have been made.
Access and Correction
If the User and Guarantors would like to know more about:
the personal information which ETF holds about them; or
ETF’s personal information handling practices; or
gaining access to the personal information which ETF holds about them; or
ETF’s handling of personal information about them, please contact:
ETF - 1300 847 021
Mail – ETF
1A, 366 Edgar Street
CONDELL PARK NSW 2200
ETF will also provide a User or Guarantor with a copy of this information for which a fee may be payable. The User or a Guarantor should let ETF know if it thinks any information which they hold about it is inaccurate so that they may correct it. ETF’s policies contain information about how you may access and seek correction of the personal information we hold about you, how you may complain about a breach of the Australian Privacy Principles and how we handle such complaints.
These terms and condition (“Term and Conditions”) together with the related Rental Agreement Schedule (including any special conditions set out in this Agreement) are an offer by the User and Guarantor(s) (if any) to ETF and upon acceptance of this offer by ETF, those documents will constitute a contract between the parties being the Rental Agreement including the Guarantee(s) if any.
1. DEFINITIONS AND INTERPRETATION
1.1 Unless otherwise expressly stated to the contrary in this Agreement, the terms set out below have the following meaning;
Additional Equipment/Services means chattels, other property and associated services (or any part of them) utilised by the User in con¬junction with the Equipment, as identified in the Rental Agreement Schedule supplied by a party other than ETF but for which ETF has agreed to facilitate payment from the User to the relevant supplier / Servicer.
Agreement means these Terms and Conditions together with the related documents identified as the Rental Agreement Schedule includ¬ing any special conditions set out in this Rental Agreement.
Business Day means any day (other than a Saturday or a Sunday or a public holiday) where ETF is open for business in the place it signed this Agreement.
Buy Out Funds means the amount (if any) set out in the Rental Agreement Schedule as payable by ETF to the User or its financer to extinguish third party finance obligations in respect of Removed Equipment.
Commencement Date means the day which ETF receives the Delivery Acknowledgment Form completed by the Customer confirming the acceptance by that customer of the delivery date.
Consumables means consumables, other items to be supplied that are replaced regularly because they wear out or are used up and other property (or any part of them) to be utilised by the User in conjunction with the
Equipment, as identified in the Rental Agreement Schedule.
Consumer Laws means the Competition and Consumer Act 2010 including the Australian Consumer Law (“ACL”) and other like legislation regulating this Agreement in this jurisdiction.
Dealer means the person identified as the Equipment original supplier/manufacturer in the Rental Agreement Schedule.
Delivery Acknowledgment Form means the document provided by ETF to the User whereby the User acknowledges delivery and installation by the Dealer.
Early Termination Administration Fee means in respect of Equipment, a fee payable by the User if this Agreement is terminated pursuant to clauses 12 and/or 13 of this Agreement being the costs incurred by ETF in giving effect to the request by the User pursuant to clause 12 or the termination pursuant to clause 12 including the costs of staff undertaking the work and an apportionment of ETF’s overhead costs which the parties agree would be not less than the amount payable pursuant to one Payment cycle as set out in the Rental Agreement Schedule.
Encumbrance means any interest in, right or any form of security over property, including, but not limited to:
a) any mortgage, pledge, lien or charge;
b) a Security Interest as defined below; or
c) any other security or preferential interest or arrangement of any kind with any creditor to have its claim satisfied in priority to other creditors.
Equipment means the chattels and other property (or any part of them) listed in the Rental Agreement Schedule, including
(a) interfaces, all licences, associated documents, manuals, installation certificates, maintenance records, spare parts, associated software and accessories related media devices (i.e. hard disk, Flash drives Rom drives etc.) keyboard, mouse, interface devices and all associated cables).
(b) any replacement Equipment under clause 7.4(b)(ii) and
(c) where the context necessarily requires it, the Additional Equipment and Consumables.
Excluded Loss means any claim, demand, liability, cost, expense, damage, loss, proceeding, suit, litigation, investigation, audit, action or cause of action, whether judicial, administrative, investigative or otherwise, and whether arising in contract, tort (including negligence), under statute or otherwise, of whatever nature, known or unknown, liquidated or unliquidated suffered by the User which
(a) is indirect; does not naturally, according to the usual course of things directly flow, or which results from some special circumstance or supervening event; or
(b) is by way of loss of revenue, loss of profits, loss of production, loss of goodwill or credit, loss of business reputation or future reputation or publicity, loss of use, loss of interest, damage to credit rating, loss or denial of opportunity, loss of anticipated savings, or increased or wasted overhead costs; or
(c) relates to expenses caused by the breach excepting in connection with mitigating the effects of any breach; or
(d) arises from other matters being rendered futile by the breach; or
(e) is not a natural, direct or immediate consequence of the breach; or
(f) which is suffered by the User as a result of a claim upon it by a third party; or
(g) which consists of a claim for personal injury or damage to property.
This includes any fines or penalties imposed by a governmental or regulatory body for failure by the User to comply with the law, and any costs or expenses incurred by the User in dealing with any actions, investigations, inquiries or proceedings by a governmental or regulatory body in respect of such failures or breaches.
ETF, we, our, us Australian Mortgage and Finance Brokers Pty Ltd ABN: 41 163 840 275 trading as ETF together with that its respective successors and assigns.
Force Majeure means an event of force majeure is an event or circumstance which is beyond the control and without the fault or negligence of the party affected and which by the exercise of reasonable diligence the party affected was unable to prevent provided that event or circumstance is limited to the following:
(a) riot, war, invasion, act of foreign enemies, hostilities (whether war be declared or not) acts of terrorism, civil war, rebellion, revolution, insurrection of military or usurped power, requisition or compulsory acquisition by any governmental or competent authority;
(b) ionising radiation or contamination, radio activity from any nuclear fuel or from any nuclear waste from the combustion of nuclear fuel, radioactive toxic explosive or other hazardous properties of any explosive assembly or nuclear component;
(c) pressure waves caused by aircraft or other aerial devices travelling at sonic or supersonic speeds;
(d) epidemic, pandemic (including but not limited to the Covid-19 pandemic), quarantine, government imposed restrictions;
(e) earthquakes, flood, fire or other physical natural disaster, but excluding weather conditions regardless of severity;
(f) strikes at national level or industrial disputes at a national level, or strike or industrial disputes by labor not employed by the affected party, its subcontractors or it suppliers and which affect an essential portion of the works but excluding any industrial dispute which is specific to the performance of the works or this Agreement; and
(f) Inability to procure parts, components or other essential items reasonably necessary for the operation and maintenance of the Equipment, the Additional Equipment and/or provision of Consumables as contemplated in this Agreement.
Good Working Order and Condition means the condition of the Equipment, the Additional Equipment and Consumables as at the time this Agreement was entered into, but subject to fair wear and tear over the Period as reasonably deter¬mined by ETF.
GST means any goods and services tax payable by ETF on each taxable supply in connection with this Agreement or its subject matter which is levied under A New Tax System (Goods and Services Tax) Act 1999 and related legislation.
Guarantee means any guarantee and/or indemnity given to ETF for the due performance by the User of its obligations under this Agreement and includes any guarantee incorporating the provisions of clause 15 and 16 of this Agreement.
Increased Cost Event means any change, modification, proclamation, notification, variation or event with effect subsequent to the Commencement Date which results in:
(a) an increase in ETF’s actual or financing cost of maintaining a commitment under this Agreement; or
(b) a reduction in ETF’s effective after tax return under this Agreement from that which ETF anticipated at the Commencement Date arising by reason of any of the following:
(i) the introduction of, operation of, modification to or variation to any law, statute, ordinance, by-law, regulation, rule and statutory instrument (however described) issued by reason of law, statute, ordinance, by-law, regulation and/or rule;
(ii) action of, requirement or request of a central bank, supervisory or monetary authority;
(iii) increase in hedging cost, interest rates, labour costs; and/or
(iv) negative impact of fluctuations in exchange rates.
Guarantor means any signatory to this Agreement who is named as the Guarantor in the Rental Agreement Schedule and if there is more, then each of them jointly and severally.
Including means when introducing a list of items, does not limit the meaning of the words to those items or to items of a similar kind.
Initial Payment means the total of the following amounts:
(a) 1 payment cycle if specified in the Rental Agreement Schedule; and
(b) the total other or one-off payments.
Insolvent means bankrupt, insolvent or insolvent under administration or presumed to be insolvent (as each is defined or provided for in the Corporations Act 2001), in receivership, in receivership and management, in liquidation, in provisional liquidation, in administration, subject to the appointment of a controller (as defined in the Corporations Act), subject to deed of company arrangement, subject to an arrange¬ment, assignment or composition or protected from any creditors under any statute (other than to carry out a reconstruction while solvent) or deregistered. “Insolvency” has a corresponding meaning.
Payment Date means the date set out as such in a ETF invoice.
Period means the Period specified in the Rental Agreement Schedule (and if not specified is each calen¬dar month commencing on the first day of the calendar month). The period commences on the Commencement Date and ending on:
(a) subject to paragraph (b), The earlier to occur of:
(i) expiry of the number of cycles specified in the Rental Agreement Schedule;
(ii) the date on which this Agreement is validly terminated.
(b) in circumstances where the term is extended for an Extended Term in accordance with clause 11, the date on which the final Extended Term expires.
Person includes firm, partnership, committee, joint venture, consortium, and without limiting the same bodies whether incorporated and unincorporated.
PPS Law means
(a) the Personal Property Securities Act 2009 (Cth) (PPS Act) and the regulations made under that Act as amended from time to time; and
(b) any amendment made to any other legislation as a consequence of the PPS Act, including, without limitation, amendments to the Corporations Act 2001.
Reduction in Value means as determined by ETF for any Equipment on a day, means
(a) The value of the Equipment to ETF had the Equipment been returned in accordance with clause 4.1 (d) or 12.2 (a) less
(b) the value to the Owner of the Equipment on that day.
Rent means the amount identified in the Rental Agreement Schedule together with variations thereto by reason of any Increased Cost Event.
Replacement Value (of the Equipment) means the cost of replacing the affected Equipment with new Equipment having specifications as nearly as possibly the same as, but at least equal in all material respects to, those of the affected Equipment.
Security Interest means the meaning given to that term in section 12 of the PPSA.
Servicer means the servicer appointed by the User in accordance with clause 6.3 (and includes their replacement, successor or permitted assign).
Servicer Expenses means costs and expenses incurred or to be incurred by the Servicer through the provision of services by it to the User in respect of the Equipment.
Special Conditions means the non-standard terms and conditions set out and forming part of this Agreement.
Termination Value means for any Equipment on a day, means the sum of the following amounts:
(a) all Rent and any other money accrued due, but not paid;
(b) all service charges accrued due, but not paid; plus
(c) The present value of the Rent for the balance of the Period (exclusive of GST); plus
(d) The Early Termination Administration Fee; plus
(e) Any recovery costs incurred by ETF; plus
(f) Money reasonably expended by ETF in making good any default which is reasonably necessary to mitigate against further loss; plus
(g) Any costs ETF reasonably incurs as a result of the early termination of this Agreement for any reason including legal costs on a full indemnity basis, costs of obtaining or attempting to obtain payment or otherwise enforcing this Agreement, costs of taking or attempting to take possession of the Equipment and any costs incurred by ETF or any financier in terminating or replacing any funding or hedging arrangements entered into by ETF or any financier in connection with the funding of ETF’s commitment to you under this Agreement.
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(a) An allowance for any unused servicing items at wholesale price, which are in original packaging.
(b) a sum equal to the value of the Equipment as at the time of the return determined by ETF or a person competent to assess such Equipment as appointed by ETF.
User, you, your means the entity or person or, if more than one, persons named as designated in the Rental Agreement Schedule and if they are a trustee, they warrant that they enter into this Agreement with all necessary power and for a proper purpose, are liable personally and in their position as trustee and, in respect of the User’s obligations under this agreement have a right to be indemnified by the trust ahead of the beneficiaries; and this includes their successors and assigns to whom ETF has consented.
2. COMMENCEMENT, PERIOD AND PAYMENTS
2.1 If this offer is accepted by ETF, on and from the Commencement Date:
(a) ETF agrees to lease the Equipment, to facilitate arrangements in relation to Additional Equipment/Services and otherwise abide by the Terms and Conditions;
(b) The User agrees to receive and use the Equipment, Additional Equipment/Services and abide by the Terms and Conditions and otherwise pay to ETF all amounts as and when they become due and payable pursuant to this Agreement without deduction, counter-claim or set off for the Period of this Agreement including but not limited to:
(i) The Initial Payment (if any) as set out in clause 5.1;
(ii) All Rent and other payments as set out in the Rental Agreement Schedule (as may be varied from time to time by pursuant to this Agreement) in the manner agreed and by the due date and facilitate the remittance by ETF of the Additional Equipment/Services charges to the relevant Person;
(iii) Interest on any money payable under this Agreement which is overdue at a rate of two percentage points higher than the rate that is or would be charged to us by our then current financier from time to time to be paid at or before the next Payment Date after the liability has arisen;
(iv) The actual amount of stamp duty, GST, new or increased statutory duties (including stamp duty), fees, taxes or governmental charges payable and / or financial institutions duty in relation to this Agreement or the Equipment which is greater than that included in the Rental Agreement Schedule;
(v) Increases in expenses (including Servicer Expenses) in relation to this Agreement during the term of the Agreement or any Extended Term;
(vi) All further charges (including dispatch fees, delivery fees and logistics costs incurred), if the Equipment is delivered by us in accordance with sub-clause 4.1 (b) and including any additional costs incurred by reason of non-acceptance by you for any reason;
(vii) Any payment dishonoured charges, other fees imposed by your financial institution, credit card transaction charges and the reasonable cost of producing manual invoices, dispatching the same and processing the payments for such invoices;
(viii) Without limiting any of the preceding sub-paragraphs, any Increased Cost Event and;
(c) The Guarantors(s) (if any) agree to secure the obligations of the User in accordance with the guarantee set out in this Agreement.
2.2 Payment will be made in accordance with any direct debit form signed by the User.
2.3 The User must ensure that no change occurs and the User represents to ETF that at the date of this Agreement and on each Payment Date that no such change has occurred in the ownership or control of the User, or in the business, management or financial condition of the User which would have a material adverse effect on the User’s ability or willingness to perform its obligations under this Agreement.
2.4 If any monies payable pursuant to this Agreement and any interest calculated in accordance with sub-clause 2.1(b)(iii) is not paid by the User before the beginning of the next Period, the mon¬ies and any such interest will be added to the amount the User must pay to ETF on the first day of that next Period. The User will then be liable to pay on demand interest on the total amount.
2.5 Save for monies expressly received and acknowledged to have been received on behalf of the Servicer by ETF, the User agrees that amounts received by ETF under this Agree¬ment shall be applied in the following order:
(a) payment of any tax duty or other governmental impost;
(b) payment of any interest accrued under sub-clauses 2.1 (b)(iii) and 2.5 (b);
(c) payment to ETF of any amount that is overdue; and
(d) payment of any other amount owing by the User to ETF under this Agreement.
3. SELECTION. TITLE, USAGE, AND ENCUMBRANCES
3.1 The User and the Guarantor(s) warrants that the information provided by the User and the Guarantor(s) in the Rental Agreement Schedule (including any special conditions) is true and correct.
3.2 Without limiting sub-clause 14.4, the User warrants to ETF that the Equipment, Additional Equipment and Consumables:
(a) have been selected by the User for the User’s purposes and you have not told us the particular purpose for which you require it;
(b) the User alone is responsible for examining the equipment before accepting it and for satisfying:
(i) its compliance with its description; and
(ii) its condition, suitability and fitness for the User’s purposes.
(c) it has taken its own advice as to the taxation, accounting and financial consequences of entering into this Agreement, and has not relied on ETF in relation to any of these matters;
(d) ETF is entitled to insert dates and such other information into this Agreement where no date or such information has been inserted by the User;
(e) the User has not relied on ETF’s skill or judgement in deciding to enter into this Agreement and save for the statutory warranties referred to in clause 14, we have not made any representation, warranty or undertaking about the condition or quality of the Equipment, its suitability, fitness for your purposes, or its safety;
(f) save as provided by mandatory provisions of law and as specified in this Agreement, the User has exercised its own skill or judgement in relation to delivery, installation, maintenance, training, implementation of safe working practices and operation in respect of use of the Equipment;
(g) is being rented from us wholly or mainly for a business carried on by you; and
(h) is supplied under this Agreement and is not for personal, domestic or household use or consumption.
3.3 Subject to your right to use our Equipment in accordance with this Agreement, ETF retains legal title to the Equipment and the Equipment always remains our property and:
(a) You agree not to assert, create or permit to be created any other interest in the Equipment other than the right to use it as governed by this Agreement. The User must protect the interest of ETF in the Equipment and this Agreement, and must not do anything inconsistent with those interests, including attempting to sell or dispose of, grant any interest or Encumbrance in, part possession with, or place any plates, stickers or marks on, the Equipment or its rights under this Agreement;
(b) The User must put plates, stickers or marks on the Equipment that state that ETF owns the Equipment if requested to do so by us. The User’s obligations under this clause extend to ensuring that all rent, rates, taxes, principal and interest payable in respect of any premises on which the Equipment is located or used is paid or any lease, mortgage, charge or other security interest relating to those premises is maintained; and
(c) If requested by us, the User will also obtain from any person who has an interest in those premises a written acknowledgement of the Owner’s interest in the Equipment and take all necessary steps to procure for the Owner’s benefit permission to gain access at any time to the Equipment on the premises.
3.4 Subject to the User’s rights under this Agreement
(a) ETF may transfer the Equipment or its interest in this Agreement without the User’s consent;
(b) may grant an Encumbrance over the Equipment or this Agreement; and
(c) the User will take such steps as may be reasonably be required to effect such a change including signing replacement direct debit authorities, replacement landlord consents for access and other reasonably necessary documents.
3.5 Any part of the Equipment that is replaced during the course of repairing the Equipment will be
deemed to become part of the Equipment and the property of ETF.
4. DELIVERY, INSTALLATION AND RETURN
4.1 In relation to packaging, delivery, installation, and training for the Equipment, Additional Equip¬ment and Consumables:
(a) Unless otherwise stated in the Rental Agreement Schedule, the Dealer will attend to same by arrangement with the User and the Agreement commences on the Commencement Date;
(b) At your cost ETF will deliver and un-install and pick-up the Equipment, Additional Equipment and Consumables, for return on termination of this Agreement.
(c) In all cases, ETF is not responsible for the provision of training implementation of safe working practices or operation of same; and
(d) Save as set out in sub-clause 4.1(b), on termination of this Agreement:
(i) the User must at its own expense (including all transport, insurance and related costs), deliver all of the Equipment to ETF or any other person nominated by ETF in Good Working Order and Condition to a place reasonably nominated by ETF; and
(ii) transfer all certificates of registration, warranty or other rights relating to the Equipment, operating systems and other software licences (and a signed transfer of those certificates, warranties and software), original media and manuals to ETF or any person nominated by ETF.
(e) The User is responsible for all site preparation for installation and connection of all necessary utilities.
4.2 You will be required to pay for the installation of any accessories on the Equipment that you request. Legal title to any accessories so installed remains with us and the accessories will remain our property.
4.3 You must not:
(a) Attach the Equipment to any land property without our consent. If it is attached to land, it does not become a fixture and you hereby confirm we can still remove it in accordance with this Agreement at your make good cost;
(b) Move the Equipment from the delivery point without first obtaining written consent from ETF and at your request and expense we will move the Equipment to an approved new location.
5. INITIAL PAYMENT
5.1 An Initial Payment may be charged in advance of any amount payable per cycle and will be applied in accordance with sub clause 2.5.
6. OPERATION, SERVICE AGREEMENTS AND MAINTENANCE
6.1 You must ensure that, the Equipment:
(a) is used only in your business operations and for the purpose for which it is designed;
(b) is used in accordance with instructions and within operational specifications provided by the original manufacturers, the Dealer, Servicer and/or ETF; and
(c) is at all times properly maintained:
(i) in accordance with the manufacturer’s instructions and recommendations;
(ii) in accordance with any applicable industry standard; and
(iii) in Good Working Order and Condition.
6.2 If requested by ETF, the User agrees:
(a) to procure such extended warranty in relation to the Equipment as may be reasonably obtained from the original manufacturers, the Dealer or other like provider and containing terms which provide that ETF has the full benefit of the extended warranty;
(b) to deliver to ETF a copy of any extended warranty; and
(c) otherwise ensure that the extended warranty is on such terms as is necessary to ensure that the benefits of the extended warranty are available to ETF in the same manner as the User with necessary changes and exceptions.
(d) To agree to ETF procuring an extended warranty for the period of the Agreement, which will be included in the Initial Payment.
6.3 within 7 days of entering into this Agreement, the User must enter into a servicing agreement (however described) with Advance Office Technology Pty Ltd (ABN 82 610 659 571):
(a) to service and maintain the Equipment with a reasonable frequency so to ensure the Equipment is in Good Working Order and Condition; and
(b) which provides that the User pays all amounts payable to the Servicer as agreed.
6.4 The User acknowledges and agrees that:
(a) The User will pay the Servicer for amounts invoiced;
(b) a copy of the servicing agreement will be provided to ETF within five (5) Business Days of its execution;
(c) If for any reason, ETF receives payments from the User in respect of services, it is as a conduit only and is not acting in a capacity of agent for the Servicer; and
(d) in entering into a servicing agreement there is no authority to bind ETF to any liability or create a lien or other interest in the Equipment when entering into any arrangements with the Servicer.
6.5 The User agrees to pay any increases in expenses in relation to this Agreement during the Period of rental and ETF may by notice to you vary any or all of the charges in respect of the provision of Equipment.
7. INSURANCE AND LOSS & DAMAGE
7.1 On and from the Commencement Date, risk in the Equipment, Additional Equipment and Con¬sumables rests with the User and the User must at all times adequately insure and keep them adequately insured:
(a) against public liability for property damage or injury by a public liability insurance in an amount of at least $20,000,000 (or such other amount as ETF may reasonably direct); and
(b) against loss, theft, destruction or confiscation of, electrical fusion or damage up to the greater of the Replacement Value or the Termination Value of the Equipment;
in a manner and on terms that is to the reasonable satisfaction of ETF, noting our interest as owner of the Equipment and deliver within 3 working days the policy of insurance and a certifi¬cate of currency to ETF.
7.2 If the User does not give to ETF acceptable evidence of insurance covering our inter¬est in the Equipment, the User will be in breach of the terms of this Agreement and in addition to any other remedy available to ETF at law:
(a) ETF may obtain insurance covering our interest in the Equipment from an insurer of its choice (which does not cover the User against any risks) and ETF will not be liable to the User if it terminates any insurance coverage that it arranges;
(b) The User will pay ETF an amount calculated by reference to ETF’s costs of taking out, acquiring and maintaining such insurance and any reasonable fees for ETF’s services in placing and maintaining such insurance (the “insurance charge”); and
(c) The User will pay the insurance charge in instalments allocated, at the reasonable discretion of ETF, to some or all of the remaining payment amounts, provided that should the total amount owing has become due for payment under clause 7.4 & 15.3, in which case any unpaid insurance charge is immediately payable by the User.
7.3 If any of the Equipment is:
(a) stolen;
(b) lost;
(c) destroyed;
(d) confiscated;
(e) damaged; or
(f) subject to events or circumstances which would in the ordinary course of matters entitle a claim to be made on an insurance policy referred to in sub-clause 7.1 or 7.2 above, you must:
(i) Notify us immediately of the details; and
(ii) Take such steps as reasonably necessary to ensure any policy of insurance in relation to the Equipment is complied with.
7.4 If the Equipment is subject of matters as set out in clause 7.3, then:
(a) If the items of equipment can be practically and economically made good, the User must immediately restore the Equipment to Good Working Order and condition; or
(b) If it is impracticable or uneconomical to undertake the make good referred to in clause 7.4(a), then, in addition to any rent instalment or other amounts due on that date, you must at your election:
(i) Pay ETF the Termination Value of the Equipment; or
(ii) Replace the affected equipment with like branded or like quality equipment approved by ETF which has at least the same relative specifications which will then be the subject of this Agreement.
7.5 Any equipment which replaces the affected equipment will be deemed to become part of the Equipment and the property of ETF; and in the event that no notification of an election is received before the next payment date the User is deemed to have elected sub-clause 7.4(b)(i) above.
7.6 This Agreement terminates when you make payment under clause 7.4(b)(i).
7.7 Where the User has not complied with clauses 7.4 or 7.5:
(a) ETF is entitled to receive all amounts which are payable by an insurer or other person as a result of an event in clause 7 .3 occurring; and
(b) If the User receives those amounts,
(i) it holds them on trust for ETF; and
(ii) where the cost incurred by ETF for the replacement of the affected Equipment, or for the repair and restoration of the damaged Equipment, is or will be in excess of any amounts held on trust for ETF pursuant to sub-clause 7.7(b)(i), the User must pay that difference to ETF upon demand by ETF.
8. RECORDS, ACCESS AND INSPECTION OF EQUIPMENT
8.1 The User must obtain and provide to ETF on receipt all documents and records which relate to the Equipment, including but not limited to:
(a) installation and de-installation certificates;
(b) software licences;
(c) insurance;
(d) keeping in Good Working Order and Condition; and
(e) safe working instructions.
8.2 The User must ensure that it has all necessary rights to use the Equipment (including software
licences).
8.3 If the Equipment includes software, the User acknowledges that:
(a) ETF has made no representation or warranty to the User as to ETF’s title to or ability to grant rights to the User for that software;
(b) you may not refuse to make a payment under this Agreement because ETF’s title to or ability to grant rights to use that software is defective for any reason; and
(c) no separate licence fee is payable in relation to that software, and to the extent that ETF is able to do so, ETF grants the User such rights that ETF has (if any) to use the software.
8.4 At your expense, the User allow us, or our nominated representative, during normal business hours, to enter the place where the Equipment is to conduct audits, inspect its condition, monitor operation, take readings or check whether the terms of this Agreement are being complied with or exercise any of our rights under this Agreement.
9. YOUR DUTIES, OBLIGATIONS AND INDEMNITIES
9.1 You have entered this agreement as a principal unless you have told us otherwise and you do not enter into this agreement as trustee of any trust or settlement.
9.2 You must ensure that neither you nor any guarantor becomes Insolvent.
9.3 In the event that you or a Guarantor(s) become Insolvent, we may at our discretion terminate the agreement and if we do so you are in default and we may elect to treat such default as repudiation under clause 13 of this Agreement.
10. PPSA
10.1 Unless otherwise defined in these Terms and Conditions, the capitalised words and expressions used in this clause have the meanings given to them in the PPS Law.
10.2 You acknowledge and agree to grant to us a Purchase Money Security Interest in the Equipment and its
Proceeds, including any Accounts and Accessions, by virtue of provisions above.
10.3 You acknowledge that any retention of title supply pursuant to this Agreement attaches on de¬livery of the Equipment and constitutes a Purchase Money Security Interest as defined in the PPSA.
10.4 You agree that:
(a) these Terms and Conditions, and, subject to us giving you at least 30 days’ notice, such other terms and conditions as we may adopt from time to time, apply to the supply of Equipment by us to you to the exclusion of all other terms and conditions of sale or purchase to the extent permitted by law and constitute a Security Agreement pursuant to the PPSA;
(b) no variation to this Agreement will be of any effect unless we agree in writing;
(c) the Equipment supplied by us secures the payment of the rental price of that Equipment and of any other goods we supply with priority to the fullest extent permitted by law over all other registered or unregistered Security Interests;
(d) you will do all things necessary in our reasonable opinion, including providing all information we require, to enable us to register a Financing Statement or Financing Change Statement on the Register as a Security Interest and/or a Purchase Money Security Interest;
(e) in addition to the matters referred to in sub-clause 2.3 you will not change your name or ABN or other details required in respect of registration, or maintenance of registration, of each Security Interest on the Register without first notifying us in writing;
(f) you waive your right to receive a Verification Statement in respect of any Financing Statement or Financing Change Statement in respect of any Security Interest created pursuant to this Agreement; and
(g) you must pay our costs of any discharge or necessary amendment of any Registration.
10.5 If the provisions of Chapter 4 of the PPSA would otherwise apply, to the maximum extent permitted by law, the following provisions of the PPSA do not apply and, for the purposes of section 115 are “contracted out” of these Terms, namely sections:
(a) 95 (notice of removal of accession);
(b) 96 (person with an interest may retain the accession);
(c) 121 (4) (enforcement of liquid assets – notice to grantor);
(d) 125 (obligations to dispose of to retain collateral);
(e) 129(3);
(f) 130 (notice of disposal);
(g) 132(3)(d) (contents of statement of account after disposal);
(h) 132(4) (statement of account if no disposal);
(i) 134(1);
(j) 135 (notice of retention);
(k) 142 (redemption of collateral); and
(l) 143 (re-instatement of security agreement).
10.6 You acknowledge and agree that we have the power to retain, deal with or dispose of any property seized by us in the manner specified in sections 123, 125, 126, 128, 129 and 134(1) and in any other manner we deem fit.
10.7 To the maximum extent permitted by law, you contract out of, and waive any rights you may have pursuant to, sections 95 and 96, and if the provisions of Chapter 4 of the PPSA would other¬wise apply, sections 117, 118, 121 (4 ), 123, 129(2) and 130 of the PPSA.
10.8 In addition to any other rights under this Agreement, we may exercise any and all remedies set out in the PPSA including, without limitation, entry into any building or premises owned, occupied or used by you, to search for and seize, dispose of or retain the equipment in respect to which we have a Security Interest. In this regard you acknowledge that sections 126, 128, and 129(1) of the PPSA, relating to seizure of goods and disposal of seized goods, apply.
10.9 You agree with us that neither of us will disclose any confidential information of the kind referred to in section 275(1) of the PPSA and that this clause 10.9 constitutes a ‘confidentiality agreement’ within the meaning of section 275(6)(a) of the PPSA.
10.10 You waive any rights you may have under section 275(7)(c) of the PPSA to authorise disclo¬sure of any confidential information that is protected from disclosure under clause 10.9.
10.11 You appoint and authorise us as your attorney to sign in your name all documents which we reasonably consider necessary to enforce or protect our rights and powers under this Agreement and to protect, preserve and enforce our rights under the PPSA.
11. End of Period and Extended Period
11.1 Unless:
(a) during the period not earlier than 30 days and not later than 15 days prior to the last day of the Period of this Agreement, you notify us in writing that you wish to terminate this Agreement on that day; or
(b) 30 days prior to the last day of the Period of this Agreement we give you notice under sub-clause 11.5,
this agreement shall automatically renew for a further term of 6 months (Extended Term).
11.2 The provisions of this Agreement shall also apply to any Extended Term of this Agreement, except the Rent may be increased or decreased by an amount determined by us in our reasonable discretion (on giving you not less than 15 days’ notice of such change in the Payments).
11.3 If you decide to return the Equipment, you must on or before the last day of the period of the Agreement return the Equipment to us in accordance with sub-clause 4.1 and pay any amount that reflects the Reduction in Value of the Equipment calculated in accordance with sub-clause 12.2(c).
11.4 If you decide to return the Equipment you must continue paying the Payment, GST, and other monies as if this Agreement had not ended.
11.5 In any event we may, at our discretion, on giving you not less than 30 days’ notice terminate this Agreement on, and any time after, the last day of the Period.
12. EARLY TERMINATION
12.1 If requested by the User and the User is not in default, having regard to the costs incurred and prospective income under this Agreement forgone, ETF may approve at their sole discretion that the User may terminate this Agreement in relation to some or all of the Equipment by giving ETF notice in writing. This notice must:
(a) specify the date on which the Equipment is to be returned which must be a Payment Date (the “Return Date”); and
(b) be given to ETF on the day which is at least three months before the anticipated Return Date.
12.2 If an early termination is approved, the User must on or before the Return Date specified in the notice referred to in clause 12.1:
(a) Return all the relevant Equipment to ETF in accordance with sub-clauses 4.1(b) or 4.1(d);
(b) Pay all amounts due and payable under this Agreement in relation to the relevant Equipment and the Terms and Conditions of this Agreement;
(c) pay an amount that reflects the Reduction in Value of the Equipment (including, without limitation, an amount reflecting the cost of the repair and restoration of the Equipment to Good Working Order and Condition) as reasonably determined by ETF;
(d) Pay any Early Termination Administration Fee; and
(e) Pay any costs incurred by ETF in terminating or replacing any funding arrangements entered into by it in connection with the purchase of any Equipment under this Agreement.
12.3 An early termination under this clause in relation to relevant Equipment will be effective when the User returns the Equipment and makes the payments required under this Agreement so far as they relate to the relevant Equipment.
13. REPUDIATION AND TERMINATION FOR BREACH
13.1 It is a fundamental provision of this Agreement that none of the following events occurs:
(a) You default in a payment of any monies and continue in default for 7 days; or
(b) You breach the insurance obligations set out in clause 7 or any of the terms of an insurance policy in relation to the Equipment; or
(c) You contravene sub-clause 7.1, 7.2 or 7.3 or an insurance policy over the Equipment is refused, cancelled or you cause indemnity to be denied; or
(d) We discover a false statement or misleading or deceptive conduct made by you or any guarantor in relation to any matter leading to the creation of this Agreement or contrary to sub-clause 3.1; or
(e) You become Insolvent, an act of insolvency or permit an insolvency event to occur; or
(f) You become an externally-administered body corporate as that expression is used in the Corporations Act; or
(g) Any act which you cause or permit threatens the safety, condition or safe keeping of the Equipment (including creating or attempting to create a charge in relation to the Equipment); or
(h) You contravene sub-clause 2.3 or cease to carry on your business or your ownership or control materially changes; or
(i) You part with possession of the Equipment.
13.2 You will repudiate this Agreement and we may terminate it by notice to you:
(a) if you do not comply with the fundamental provisions of this Agreement; or
(b) if, in the opinion of a reasonably prudent Person in ETF’s position would view the circumstances as evidencing an intention that you no longer intend to be bound by this Agreement.
13.3 If we give you notice of termination you must:
(a) immediately deliver up the Equipment in Good Working Order and Condition; and
(b) permit us to retake possession of the Equipment at any time and without further notice; and
13.4 Without derogation from or limitation to any other remedies or damages available to us upon your default, the User agrees to pay and indemnify us for:
(a) the Termination Value.
(b) the Early Termination Administration Fee;
(c) any further costs we incur as a result of the early wrongful termination of this Agreement for any reason;
(d) legal costs on a full indemnity basis;
(e) costs of obtaining or attempting to obtain payment or otherwise enforcing this Agreement;
(f) costs of taking or attempting to take possession of the Equipment and any costs incurred by us; and
(g) costs of any financier in terminating or replacing any funding or hedging arrangements entered into by us or any financier in connection with the funding of our commitment to you under this Agreement.
13.5 For the purposes of recovering possession and without limiting the generality of the foregoing, you irrevocably authorise and license us and our servants and agents to enter any premises where the Equipment may be stored and to take possession of the Equipment.
14. LIABILITY LIMITS FOR ETF
14.1 Nothing in these Terms and Conditions or related documents, excludes or modifies or purports to limit, exclude or modify any statutory consumer guarantees or any implied condition or warranty the exclusion of which would contravene any Consumer Laws or cause any part of these terms and conditions of sale to be void (“Non-Excludable Guarantees”). The Equipment may come with guaran¬tees that cannot be excluded under the Consumer Laws. You are entitled to a replacement or refund for a major failure and compensation for any other reasonably foreseeable loss or damage. You are also entitled to have the goods repaired or replaced if the goods fail to be of acceptable quality and the failure does not amount to a major failure.
14.2 The liability of ETF for the Non-Excludable Guarantee is limited to, at our option to:
(a) the replacement of the Equipment or the supply of equivalent goods;
(b) the repair of the Equipment;
(c) the cost of replacing the Equipment or of acquiring equivalent goods;
(d) the payment of the cost of having the Equipment repaired;
(e) the supplying of the services again; or
(f) the payment of the cost of having the services supplied again.
14.3 Subject to the limitations in sub-clauses 14.1 and 14.2 ETF excludes from this Agree¬ment all conditions, warranties and terms implied by statute, general law or custom.
14.4 Subject to the operation of the Consumer Laws, any representation, information or matter not expressly contained herein or expressly given by us in relation to the Equipment is provided as general information of the User and does not constitute part of this Agreement and all such representations, information or matters including description, performance characteristics, at¬tributes, dimensions, reference to conditions legislative requirements and other details from ETF are given in good faith and are believed to be correct but the User should not rely on them as statements or representations of fact and must satisfy itself by inspection or otherwise as to the correctness of each of them.
14.5 Except for liability in relation to a Non Excludable Guarantee or where exclusion is otherwise prohibited by mandatory force of law, ETF (including its officers, employees and agents) excludes all liability whether arising in tort (including without limitation negligence) or otherwise, for any personal injury or any other loss or damage (including without limitation loss of opportunity or loss of profits), whether direct, indirect, special or consequential.
14.6 Without limitation to any other provision herein, ETF will not be liable for any Excluded Loss:
(a) arising under or from this Agreement; or
(b) arising in connection with or by reason of this Agreement.
15. USER INDEMNITIES
15.1 Without derogation from or limitation to any other right ETF has under this Agreement, you shall indemnify us against any liability or loss arising from your possession, operation or use of the Equipment or from any negligent or illegal act or breach of this Agreement by you or your contractors including but not limited to:
(a) environmental damage and personal injury;
(b) this Agreement (or any part of it) being void, voidable or unenforceable for any reason;
(c) exercising a right under this Agreement or doing something the User should have done under this Agreement;
(d) the Equipment being located in any country other than Australia or located other than as designated in the Rental Agreement Schedule;
(e) a person being injured or killed or property being damaged directly or indirectly by the Equipment or its use, or operation;
(f) a claim by any person that the Equipment or its use by any person infringes another person’s trademark, copyright, patent or other intellectual property right;
(g) ETF or its agent repossessing the Equipment, or deleting any data or software stored in the Equipment;
(h) This Agreement terminating in relation to some or all of the Equipment before the end of the Term of this Agreement;
(i) An Increased Cost Event occurring;
(j) The Equipment not being maintained in Good Working Order and Condition.
15.2 This indemnity is a continuing obligation, separate and independent from your other obliga¬tions. It continues after this Agreement ends or is terminated. It is not necessary for us to incur expense or make a payment before we enforce a right of indemnity.
15.3 You further agree to indemnify us against all losses and expenses which we may suffer or incur due to your failure to fully observe your obligations under this Agreement.
16. GUARANTOR(S)
16.1 In consideration of ETF agreeing to enter into this Agreement at the request of the User, the Guarantor(s) (if any) acknowledge and agree that:
(a) The Guarantor(s) have read and understood the terms of this Agreement and has had the opportunity to seek independent legal advice in respect thereof;
(b) The Guarantor(s) unconditionally and irrevocably guarantee the punctual payment to us of all amounts that become owing to us by the User on any account and the due and prompt observance and performance of all covenants, obligations, terms and conditions on your part pursuant to this Agreement;
(c) The Guarantor(s) unconditionally and irrevocably indemnifies us against any loss or cost we may suffer or incur due to a breach of this Agreement by you or the guarantee being voidable or unenforceable for any reason;
(d) The Guarantor’(s) obligation under this Agreement is a primary obligation and we are not obliged to enforce any right against the User or any other person before demanding payment by the Guarantor(s);
(e) The guarantee and indemnity provided herein is a continuing obligation and is not subject to any time or indulgence granted by us to you;
(f) The Guarantor’(s) liability is as a principal debtor and this guarantee and indemnity is not to be considered as wholly or partly discharged unless and until all of the User has been satisfied in full;
(g) The Guarantor(s) must pay any amount due under this clause immediately upon demand by us; and
(h) This guarantee and indemnity remains enforceable against the Guarantor(s) is not impaired or discharged by:
(i) an event occurring which would otherwise have the effect of releasing the Guarantor(s) from this guarantee. By way of example only, the Guarantor(s) remains liable under this guarantee even if the terms of this Agreement are changed without the Guarantor(s)’ consent, or if we release you from your obligations under this Agreement, or if we give you extra time to pay, or the fact that we might have executed this Agreement, or an obligation under this Agreement is unenforceable for any reason.
(ii) any breach, wilful or otherwise, of any obligation of the User under this Agreement with or without the consent or knowledge of the User, any Guarantor or ETF;
(iii) the granting of time, credit, forbearance, indulgence or concession to the User or to any other Guarantor;
(iv) any compromise, abandonment, waiver, release, variation or redemption or compounding by ETF of any of its rights under the Agreement or against any other Guarantor;
(v) the unenforceability in whole or in part of this guarantee and indemnity against any other Guarantor or that any other Guarantor has not executed this agreement;
(vi) the fact that all or any part of the moneys owing by the User may not or may cease to be recoverable from the User or any other person liable for any reason (other than the same has been fully paid or satisfied);
(vii) the liquidation, death, Insolvency or bankruptcy (as the case may be) of the User or any Guarantor;
(viii) the avoidance for any reason by statute or otherwise of any payment by or on behalf of the User or any Guarantor;
(ix) the transfer or assignment of the benefit of the Agreement to any person or corporation; or
(x) the User being under any legal disability.
(i) this guarantee and indemnity creates an interest in and a charge over any and all real property, past, present or future and wheresoever situated, owned by the Guarantor(s), entitling ETF to register a caveat on all such real property to secure the payments required under this guarantee and indemnity, and the Guarantor(s) will consent to and do all such things that are necessary to enable ETF to lodge a caveat or other such registrable instrument over such real property.
16.2
(a) To secure the punctual payment of all amounts owed by the Guarantor(s) to ETF, each Guarantor grants to ETF:
(i) a security interest (as defined under the PPSA) over all present and after-acquired property of the Guarantor(s) in relation to which the Guarantor(s) can be a grantor of a security interest under the PPSA, whether or not the Guarantor(s) has title to the property, including but not limited to all PPSA retention of title property (as defined under section 51F of the Corporations Act); and
(ii) a fixed charge over all present and after-acquired property of the Guarantor(s) in relation to which the Guarantor(s) cannot be a grantor of a security interest under the PPSA.
(b) Each Guarantor agrees and acknowledges ETF may (without limiting ETF’s other rights under this guarantee and indemnity, at law or otherwise) lodge caveats over the Guarantor(s)’ real property and take any other action to secure and enforce ETF’s security under this clause.
(c) ETF’s security under this clause may become enforceable without the need for any demand or notice to the Guarantor(s).
(d) If ETF’s security under this clause has become enforceable, ETF may appoint a receiver of secured property or exercise any power exercisable by a receiver even if a receiver has not been appointed.
(e) Each Guarantor agrees on demand, and irrevocably appoints ETF, each director and secretary of ETF and any receiver (as independent and several appointments) as the Guarantor(s)’ agent and attorney, to execute any document (including, without limitation, any mortgage or transfer) or undertake any act, at the Guarantor(s)’ cost, that ETF considers necessary or desirable to:
(i) better secure the security under this clause in a manner consistent with any Document; or
(ii) assist in the completion, execution of, or exercise of any power under, any Document.
16.3 Each Guarantor agrees that funds received by ETF will be applied, after satisfaction of any claim that ETF or the receiver is aware ranks in priority, in the following order:
(i) first in payment of all expenses that ETF or the receiver incurs in the exercise of a power or otherwise in relation to any Document;
(ii) then in payment of any other outgoings that ETF or the receiver considers appropriate to pay;
(iii) then in payment to the receiver of any remuneration;
(iv) then in payment to ETF or the receiver of any amount necessary to give effect to any indemnity under any Document; and
(v) then in payment to ETF of all amounts owed by the User or Guarantor(s) to ETF.\
16.4 Each Guarantor:
a) agrees with ETF that neither the Guarantor(s), nor ETF, will disclose information of the kind specified in section 275(1) of the PPSA (except in the circumstances required by sections 275(7)(b) to (e) of the PPSA);
b) agrees that, to the extent permitted under section 115(1) of the PPSA, the following provisions of the PPSA do not apply: sections 95, 118, 121(4), 125, 130, 132(3)(d), 135, 138B(4), 142 and 143;
c) agrees that, to the extent permitted under section 115(7) of the PPSA, the following sections of the PPSA do not apply: sections 127, 129(2), 129(3), 132, 134(2), 135, 136(5) and 137;
d) acknowledges that ETF may, at the Guarantor(s)’ cost, register one or more financing statements in relation to any security under any Document;
e) waives, if permitted under the PPSA, the Guarantor(s)’s right under section 157 of the PPSA to receive notice of any verification statement relating to the registration of any financing statement or any related financing change statement; and
f) will not, without prior written notice to ETF, change the Guarantor(s)’ name or initiate any change to any documentation registered under the PPSA.
16.5 If any Guarantor is entering into the guarantee and indemnity and is the trustee of a trust then this Agreement both in their personal capacity and as trustee of the trust and the Guarantor(s) warrant to ETF that:
(a) the Guarantor has full, complete, valid and unfettered authority and power to enter into and comply with this Agreement;
(b) by entering into this Agreement due and proper administration of the trust has been undertaken
(c) the Agreement is for the benefit of the beneficiaries of the trust and does not constitute a conflict of interest or duty or breach of trust;
(d) the performance by the trustee of its obligations under this Agreement as guarantor has been duly authorised in accordance with the terms of the trust;
(e) a right to be fully indemnified, and no limitation or restriction exists in respect of the trustee’s rights to be indemnified, from the trust assets in respect of the obligations incurred by the trustee under this Agreement as Guarantor;
(f) the trust has sufficient assets to satisfy that right of indemnity and all other indemnified obligations of the trustee;
(g) no action has been taken or proposed to remove it as trustee or to terminate the trust; and
(h) The Trustee must not so far as it is able to do so, without the prior written consent of the Owner permit any of the following:
(i) any variation, replacement or limitation of the terms of the deed constituting the Trust;
(ii) its removal as Trustee or the appointment of another Trustee as Trustee of the Trust whether or not in conjunction with the Trustee;
(iii) any distribution, transfer or setting aside of any part of the income or capital of the Trust.
17. GENERAL
17.1 Each communication (including each notice, certificates consent, approval, request and de¬mand) under or in connection with this Agreement:
(a) must be in writing;
(b) must be addressed in accordance with the details set out in the Rental Agreement Schedule for that Person (or as otherwise notified by that party to each other party from time to time);
(c) must be signed or otherwise signified as have been adopted by the party making it or (on that party’s behalf) by the solicitor for, or any attorney, director, secretary or authorised agent of that party;
(d) must be delivered by hand or posted by prepaid post to the address, or sent by email to the email address, or if in pdf or other format that is a scanned image of the original communication, including a handwritten signature, and attached to an email stating that the attachment is a communication under this Agreement sent to the email address, of the addressee, in accordance with the Rental Agreement Schedule and
(e) is taken to be received by the addressee:
(i) (in the case of prepaid post sent to an address in the same country) on the third day after the date of posting;
(ii) (in the case of prepaid post sent to an address in another country) on the fifth day after the date of posting by airmail;
(iii) (in the case of delivery by hand) on delivery; and
(iv) (in the case of email) at the time that is 24 hours after the email was sent, unless the party sending the email knows or reasonably ought to suspect that the email and the attached communication were not delivered to the addressee’s domain specified in the email address, but if the communication is taken to be received on a day that is not a working day or after 5.00 pm, it is taken to be received at 9.00 am on the next working day (“working day” meaning a day that is not a Saturday, Sunday or public holiday and on which banks are open for business generally, in the place to which the communication is posted, sent or delivered or, in the case of email, in the place of the addressee’s address for service by post or by hand in accordance with sub- clause 17.1(b).
17.2 You acknowledge that we may enter into this Agreement as agent for a finance company or other undisclosed principal. To the extent permissible by law, the User agrees that ETF may pay commissions, fees or other remuneration to any broker, agent, dealer, supplier, Servicer or other person who introduces the User to ETF or ETF to the User.
17.3 lf we do not exercise a right, remedy or power at any time, this does not mean that we cannot exercise it later. We are not liable for any loss caused by the exercise or attempted exercise of, failure to exercise, or delay in exercising a right, remedy or power, whether or not caused by our negligence.
17.4 Our rights, remedies and powers under this Agreement are in addition to any other rights, remedies and powers provided by law independently of it.
17.5 Any termination does not affect any other right or remedy we have for amounts due to us which remain unpaid and clauses that survive rescission or termination of this Agreement.
17.6 If a date for payment of money under this Agreement is not a business day, the money must be paid on the next business day.
17.7 A term of this Agreement, or a right created under it, may not be waived or varied except in writing, signed by the party or parties to be bound.
17.8 If at any time a provision of this Agreement, is or becomes illegal, invalid or unenforceable in any respect under the law of any jurisdiction, that will not affect or impair the legality, validity or enforceability.
(a) in that jurisdiction of any other provision of this Agreement; or
(b) under the law of any other jurisdiction of that or any other provision of this Agreement.
17.9 To the extent of any inconsistency or conflict between documents constituting this Rental Agreement then the documents shall prevail in the following order:
(a) Special Conditions;
(b) Rental Agreement Schedule; then
(c) Terms and Conditions.
17.10 This Rental Agreement will constitute a valid tax invoice for Rent payments on the earlier of the scheduled Payment date or date of payment.
17.11 An obligation on the part of two or more persons binds them jointly and severally.
17.12 This Agreement is governed by the law of New South Wales (‘NSW’) The Parties submit to the nonexclusive jurisdiction of the courts of NSW.
17.13 Each individual person executing this Agreement on behalf of the User warrants that they have full, complete, valid and unfettered authority and power to enter into and comply with this Agreement.
18. FURTHER EQUIPMENT
18.1 If after the date of this Agreement you ask us to supply further Equipment to you, then provided you supply us with a completed Additional Equipment Request, in a form acceptable by us, we will hire the Equipment listed therein for the Rent therein stated and otherwise on the terms contained in this Agreement (mutatis mutandis).
19. FORCE MAJEURE
19.1 ETF is not responsible for any failure to perform its obligations under this Agreement, if it is prevented or delayed in performing those obligations by an event of Force Majeure.
19.2 Where these is an event of Force Majeure, ETF will notify the User giving full particulars of the event of Force Majeure and the reasons for the event of Force Majeure preventing ETF from, or delaying ETF in performing its obligations under this Agreement and ETF must use its reasonable efforts to mitigate the effect of the event of Force Majeure upon its or their performance of the Agreement and to fulfil its or their obligations under the Agreement.
19.3 Upon completion of the event of Force Majeure ETF must as soon as reasonably practicable recommence the performance of its obligations under this Agreement.
19.4 ETF has no liability for:
(a) any costs, losses, expenses, damages or the payment of any part of the Agreement price during an event of Force Majeure; and
(b) any delay costs in any way incurred due to an event of Force Majeure.
20. BUY-OUT
20.1 The User acknowledges that this Agreement may contain a provision for the payout of other agreements made by the User, including Buy-Out Funds.
20.2 If the Rental Agreement Schedule states that ETF will pay out Buy Out Funds, then:
(i) ETF may in its sole discretion either pay the Buy Out Funds to the User or the third party to whom the Buy Out Funds are to be paid, direct;
(ii) the User must within 7 days of receipt of the Buy Out Funds either by the User or the third party provider, terminate the third party finance, lease or rental agreement to which the Buy Out Funds relate and return or arrange for the return of that equipment to the financier (unless the User thereby acquires title to the equipment, in which case it shall permit ETF to dispose of it as ETF considers fit) (Removed Equipment); and
(iii) ETF is not obliged to verify the accuracy of the Buy Out Funds and the User is responsible for any shortfall in the event that the Buy Out Funds are insufficient to extinguish finance obligations and no such shortfall shall invalidate, or give rise to any right to terminate this Agreement.
1. Application of Part
(a) Part A applies to each and every supply of goods and services made by AOTech to the Customer.
2. Definitions and Interpretations
2.1 In these Terms;
Additional Service means any service that is not performed by AOTech at its option that is an addition to the Support Services and the IIT Services required to be performed by AOTech under this Document and which is not subject of a separate agreement with AOTech.
Base Software means the software that is installed upon or embedded in the Equipment in an activated state when the Equipment is delivered and any Maintenance Releases provided thereafter but excludes Diagnostic Software.
Business Day means any day which is not a Saturday, Sunday or Bank or public holiday in the state or territory where the obligation is to be performed.
Business Hours means 8.30am to 5pm on a business day.
Customer means the person or entity purchasing the goods and services upon these Terms.
Consumables means any ink, toner or fuser used in the Equipment in the ordinary course of their operation.
Claim means any and all claims arising from or in relation to this Document, howsoever caused whether willfully or otherwise (including repudiation), and whether fundamental or non-fundamental breach of contract (including for breach of an Essential Term), in tort (including negligence) or for breach of any statutory provision.
Consequential Loss means any claim for; any consequential, special or indirect cost, loss or liability: any loss of business opportunity, loss of revenue, profit or savings; and any loss, corruption or delay of data.
Details Section means the section in this Document carrying that title.
Diagnostic Software means the software embedded in the Equipment and used or intended to be used by AOTech to maintain or diagnose defects or substandard performance.
Document means this document which is made up of the following:
(a) Details Section;
(b) the Terms; and
(c) all other sections and terms contained in this document.
Documentation means any manual and Specification for the Equipment or Services that is generally provided to Customers by AOTech.
Equipment means the equipment that is either purchased from AOTech outright without the intervention of any finance or leasing third parties and/or equipment that will be serviced by AOTech as set out in the Product Schedule.
Essential Term means all of the Customer’s obligations under these Terms.
EULA has the meaning given in clause 5.1.
GST has the meaning given to the expression ‘’tax’’ as it appears in the A New Tax System (Goods and Services Tax) Act 1999 (Cth).
Insolvency Event means any of the following:
(a) In relation to a natural person, that person, that person is declared bankrupt, or is unable to pay their debts when they fall due;
(b) insolvency or the likelihood of future insolvency;
(c) the Customer indicating that it does not have the resources to perform its obligations under these Terms;
(d) an application for winding up is made and not stayed within 14 days, or a resolution for winding up is passed;
(e) a winding up order is made;
(f) a trustee, controller, administrator, receiver and/or manager, statutory manager, provisional liquidator or liquidator is appointed;
(g) a mortgagee enters the possession of any of the Customer’s property;
(h) notice is given of a meeting of creditors for the purpose of a deed or scheme of arrangement; or
(i) any actions of a similar effect to those set out above are taken.
Maintenance Release means any release of Base Software that is provided or made available to the Customer by AOTech that primarily incorporates code error fixes and is generally made available by AOTech without charge to Customers in the course of performing Support Services.
Non-Excludable Right means any warranty, guarantee or other right enjoyed by the Customer which cannot lawfully be excluded or limited (including any statutory guarantees set out in Schedule 2 of the Competition and Consumer Act 2010 (Cth)).
AOTech means Advance Office Technology Pty Ltd ABN 82 610 659 571 and any related body corporate of AOTech within the meaning of section 50 of The Corporations Act 2001.
Product and Service Schedule means the schedules(s) setting out the Equipment and Support Services in the Details Section of this Document.
Services means the Support Services and any Additional Services.
Software means the Base Software, Diagnostic Software, FM Audit Software, Maintenance Releases and any additional software which is provided by AOTech.
Specifications means any published specification for Equipment.
Interpretation: unless the context requires otherwise:
(a) a reference to $ or dollars means the lawful currency of Australia;
(b) a reference to a person includes a firm, partnership, joint venture, unincorporated association, corporation and a government or statutory body or authority and its legal personal representatives, successors and assigns;
(c) no rule of construction will apply to a clause to the disadvantage of a party merely because that party put forward the clause or would otherwise benefit from it;
(d) AOTech’s obligations will be performed during Business Hours;
(e) if the date on or by which any act must be done under these Terms is not a Business Day, the act must be done on or by the end of the next Business Day;
(f) headings do not affect interpretation;
(g) “include” or “including” means includes all including (as the case may be) without limitation;
(h) capitalized terms that are not defined in clause 2 have the meaning given to them in the Details Section;
(i) clauses intended by their nature to survive expiration or termination of this agreement, survive such expiration or termination; and
(j) reference to ‘’in writing’’ includes by facsimile and email.
3. Binding Terms and Conditions
3.1 The only terms which are binding upon AOTech are:
(a) those set out in these Terms or otherwise agreed to in writing by AOTech; and
(b) those, if any, which are imposed by law and which cannot be excluded.
3.2 These Terms apply to each supply of goods and services made by AOTech to the Customer. For the avoidance of doubt, these Terms apply regardless of whether Part B of these Terms applies or not.
3.3 The Customer and AOTech agree that these Terms apply to the goods and services described in the Details Section and to every order for other goods and services by the Customer which is accepted by AOTech, to the exclusion of the Customer’s terms and conditions of the purchase.\
3.4 Unless expressly stated otherwise in this Document, no Customer right to terminate another agreement, gives the Customer a right to terminate this agreement.
3.5 Subject to any Non-Excludable Rights, this agreement cannot be cancelled or terminated except as expressly provided in this Document.
3.6 Time is of the essence in respect of all of the Customer’s obligations under these Terms.
4. Orders
4.1 AOTech accepts orders for goods and services by delivery of the goods and services.\
4.2 An order for goods and services cannot be cancelled after the Customer has signed the “Customer Acceptance” section in the Details Section.
4.3 The prices shown in any AOTech price list are subject to alteration without notice, unless otherwise set out in this Document.
4.4 Without prior approval of AOTech, the Customer must not allow the balance of its account to exceed any approved credit limit as set out in the Details Section.
4.5 AOTech may vary or withdraw the approved credit limit of the Customer at any time in its absolute discretion.
4.6 The Customer acknowledges that AOTech may pay commission or other amounts to its personnel, contractors, agents, dealers or any other third parties.
5. Software
5.1 Where the goods include Software, the Customer acknowledges and agrees that the Software is owned by AOTech or a third party and licensed directly or indirectly to the Customer under separate terms and conditions which may include an end user license document (together, the ‘’EULA’’) and that title in the Software at all times remains with the owner of the Software unless expressly indicated otherwise in the description of the Software.
5.2 If requested by AOTech, the Customer must promptly accept or authorise the acceptance on the Customer’s behalf of any EULA associated with the acquisition, implementation or use of the Software. To the extent necessary for AOTech to fulfil its obligations under this Document, the Customer hereby authorises AOTech to act as the Customer’s agent to acquire the Software and to accept on behalf of the Customer an EULA associated with the acquisition, implementation and use of the Software.
5.3 The Customer must use the Software strictly in accordance with and comply with the EULA.
5.4 The Customer indemnifies and holds AOTech harmless against all liability, loss, damage, cost and expenses (including legal costs on a full indemnity basis) in relation to any Claim arising out of or in connection with any breach or failure to comply with clause 5.3 or any other act or omission of the Customer in relation to the Software which infringes the intellectual property rights of the owner or head licensor of the Software.
5.5 Nothing in this Document transfers ownership or any present or future intellectual property rights.
5.6 AOTech grants to the Customer a non-exclusive, non-transferable license to reproduce the object code version of the Base Software within Australia only and in the course of operating the Equipment with which (or within which) it was delivered for as long as the Customer is legally in possession of the Equipment in working order.
5.7 Unless otherwise stated, where AOTech customizes the Software or develops new software for the Customer (other than diagnostic software) that customized or developed code is licensed to the Customer upon the same terms as a license for the Base Software.
5.8 Any license provided under this Document must be read subject to any EULA that accompanies the Equipment, which prevail over the Terms to the extent of any inconsistency.
5.9 Unless and only in the extent permitted by law notwithstanding this prohibition, the Customer must not:
(a) distribute, copy, modify, create deviate works of, decompile or reverse engineer the Software;
(b) activate any Software delivered with or within the Equipment in an inactivated state;
(c) remove or modify Equipment trademark references or copyright notices;
(d) disclose the Software, the Documentation and any information designated as confidential to any third party without AOTech’s prior written consent; or
(e) allow others to do anything described in clause 5.9(a)-(e).
5.10 Software may contain or be modified to contain computer code which disables the proper operation or functioning of the Equipment if:
(a) AOTech is denied full access to the Equipment;
(b) there is a default under this Document or other agreement between AOTech and the Customer; or
(c) the Customer’s license is terminated or expires.
5.11 Diagnostic Software may be installed on, embedded in or reside on Equipment. Title to Diagnostic Software shall at all times remain solely with AOTech or its licensors.
5.12 This Document does not grant the Customer a license or right to access or use the Diagnostic Software in any manner, and unless separately licensed by AOTech to do so, the Customer must not access, use, reproduce, distribute or disclose the Diagnostic Software for any purpose or allow any third party to do the same.
5.13 AOTech may suspend or terminate, or cause to be suspended or terminated, any Software licence without any liability by written notice with immediate effect if the Customer fails to perform any of its obligations under these Terms, including but not limited to failure to make any payments by the due date or failure to comply with an EULA.
5.14 Upon the suspension or termination of any Software license, the Customer must immediately cease using the Software and do all such things requested by AOTech to uninstall or otherwise remove the Software from the Customer’s computer system or network. The Customer irrevocably authorises AOTech to enter any premises owned or controlled by the Customer at any time to enable AOTech to verify or audit the Customer’s compliance with the obligation under this clause. If required by AOTech, the Customer must provide all such evidence required by AOTech to prove to the satisfaction of AOTech the Customer’s compliance with its obligations under this clause.
6. Delivery and Installation of Goods
6.1 Unless otherwise agreed by the parties, the Customer must pay AOTech’s charge for transportation of goods to the place of delivery.
6.2 If a delivery date is specified, that date is an estimate only and AOTech is not liable for any delay in delivery. AOTech will not be liable for penalties or damages (direct or indirect) or compensation for any failure or delay.
6.3 AOTech is deemed to have delivered the goods when they are made available for unloading at the delivery location specified in an accepted order whereupon all risk passes to the Customer. Deemed acceptance is not invalidated by any AOTech request for the Customer to acknowledge receipt or acceptance of the Equipment.
6.4 The supply of the goods is subject to availability. If AOTech is unable to supply the Customer’s order AOTech may accept the order in part or deliver the order in instalments and these Terms continue to apply to the goods supplied.
6.5 AOTech will only install the goods during normal business hours at the place of delivery or such other times as agreed between the parties in writing. The Customer must prepare the site to meet AOTech’s installation or other specification.
6.6 Physical risk in the Equipment passes to AOTech only when the Equipment is delivered to AOTech’s premises or its nominee’s premises following the expiration or termination of this Document.
7. Installation, Implementation and Training services.
7.1 AOTech will provide installation, implementation and/or training services generally required for the operation of the goods (IIT Services).
7.2 The Customer agrees to promptly provide AOTech with all information, instructions and/or access to premises or persons within the Customer’s control as AOTech reasonably requires to perform the IIT Services. The Customer agrees it is responsible for the completeness and accuracy of all information supplied to AOTech and AOTech may rely on all such information to perform the IIT Services including but not limited to making any recommendations in relation to the Software.
7.3 The Customer agrees it is solely responsible for determining the acceptability of the Software (including but not limited to its functionality and operational capability) for its purposes and AOTech relies on the Customer’s determination to perform the IIT Services.
7.4 The Customer agrees to ensure AOTech is permitted to use any third-party information or intellectual property rights the Customer requires AOTech to use to perform any of the IIT Services including but not limited to implementation and installation of the Software.
7.5 AOTech’s performance depends on the Customer also performing its obligations. The Customer agrees AOTech is not liable for any default or loss or damage suffered or likely to be suffered by the Customer because the Customer does not fulfil its obligations or because information supplied is inaccurate or incomplete.
7.6 The Customer acknowledges the installation and implementation of any software including the Software is an iterative process which is subject to multiple stages getting tested and reconfiguration.
7.7 If a delivery date, installation date or other date is provided by AOTech, that date is an estimate only and AOTech is not liable for any delay or failure. AOTech will not be liable for penalties or damages (direct or indirect) or compensation for the delay.
7.8 AOTech is deemed to have completed the IIT services when the IIT services are provided. Deemed completion is not invalidated by any AOTech request for the Customer to acknowledge completion of the IIT Services.
7.9 After the initial installation of any goods, if the Customer requires any further work, such work will be treated, at the discretion of AOTech, as Additional Services and charged in accordance with AOTech’s rates as set at that time.
7.10 The supply of IIT Services and Additional Services is subject to availability of resources.
7.11 AOTech will only provide IIT Services during normal working hours or such other times as agreed between the parties in writing. The Customer
must provide adequate and safe facilities for AOTech if AOTech is to provide any of the IIT Services at the Customer’s premises.
7.12 AOTech may use subcontractors or agents to perform or assist AOTech to perform any part of the IIT Services.
7.13 Once the goods are delivered by AOTech, they must not be removed from the location that they were delivered to, at any time and for any reason without prior written consent of AOTech, and if they are, the Customer must immediately advise AOTech in writing and provide details of the new location.
8. Notification of Claims
8.1 The Customer must inspect the goods immediately upon delivery and/or conduct such tests necessary to check or verify the functionality or operability of the goods upon completion of the IIT Services.
8.2 Any Claim that the goods or services are not in accordance with these Terms (including if they are damaged during delivery, short delivered or not working, functioning or operable) must be made in writing to AOTech within 7 days of delivery, installation, implementation or provision of the goods and/or the IIT Services or the Services (as applicable).
8.3 If the Customer fails to make such claim within 7 days of delivery of the goods and/or provision of IIT Services or the Services (as applicable), then to the extent permitted by law, the goods and/or IIT Services and/or Services are deemed to have been accepted by the Customer and the Customer must pay for the goods and/or IIT Services and/or Services in accordance with the provisions of these Terms.
9. Trade-Ins
9.1 The Customer represents and warrants that all trade-in products are unencumbered and that clear title can be given.
9.2 The Customer represents and warrants to AOTech that it is the lawful owner of any trade-in products.
9.3 The Customer acknowledges that by trading-in equipment or products:
(a) title to the equipment or products will be transferred to AOTech;
(b) the Customer will no longer have any right, title or interest in the equipment or products; and
(c) AOTech may deal with the equipment or products in any manner it may determine, in its absolute discretion.
10. Payment
10.1 Subject to clauses 10.2 to 10.4, payment is required to be made within 7 days of invoice or if agreed prior in writing by AOTech, may be made by way of cash on delivery (COD). In any event payment must be received prior to AOTech arranging for the delivery of any goods, unless cash on delivery is agreed in writing by AOTech.
10.2 If AOTech has accepted and approved an application for commercial credit made by the Customer and granted the Customer an approved credit limit (which is stated in the Details Section), the Customer must make each payment for the goods and services within 30 days of the date of the invoice (or such other period as agreed by the parties in writing). If payments subject to commercial credit approved by AOTech are not made by direct debit, then an additional administration fee of $20 plus GST per month applies.
10.3 If AOTech has accepted payment by way of finance;
(a) the Customer must make payment for the goods and services in accordance with the terms and conditions applicable to the financing arrangement, prior to AOTech arranging for delivery of any goods;
(b) AOTech will sell the goods and services to the finance provider, not the Customer; and
(c) AOTech shall not be responsible for and cannot guarantee the availability from or granting of finance by any finance provider, whether that finance provider was referred to the Customer by AOTech or otherwise; and
(d) AOTech shall not be responsible for any acts or omissions of any finance provider, breaches of any duties by the finance provider nor any contractual obligations of any finance provider.
10.4 If AOTech has agreed to payment by direct debit, the Customer must make payment for the goods and services in accordance with AOTech’s direct debit terms and upon the dates set by AOTech. Any failed payments made by Direct Debit will be charged at $20 plus GST per failed attempt.
10.5 Invoices must be paid in full without set-off (including set-off in accordance with the Corporations Act (2001)) or deduction.
10.6 Time is of the essence in respect of the Customer’s obligation to make payment for the goods and services.
10.7 Notwithstanding that AOTech may have granted the Customer an approved credit limit, time to pay or finance, upon the occurrence of any of the following events, all amounts owing by the Customer (including any amounts owing but not yet due) will become immediately due and payable:
(a) a breach of these Terms by the Customer;
(b) an Insolvency Event occurs in relation to the Customer; or
(c) any event occurs which in the reasonable opinion of AOTech is likely to affect the ability of the Customer to perform its obligations under these Terms.
10.8 Upon the occurrence of any of the events in clause 10.7, AOTech may also in its absolute discretion:
(a) vary or withdraw any approved credit limit;
(b) cancel any unfilled orders; and
(c) require the Customer to reimburse AOTech for all collection costs including legal costs incurred by AOTech on a full indemnity basis in connection with the default and/or to institute such recovery process as AOTech in its discretion decides.
10.9 Any payment by the Customer to AOTech may be applied by AOTech against monies owing by the Customer in such manner as AOTech sees fit.
11. Goods and Services Tax
11.1 In these Terms ‘’GST’’ means GST as defined in the A New Tax System (Goods and Services Tax) Act 1999 as amended from time to time (‘’GST Act’’) or any replacement or other relevant legislation and regulations.
11.2 Unless GST is expressly included, the price payable for any supply made under or in connection with these Terms does not include GST.
11.3 To the extent that a supply is a taxable supply, the GST exclusive consideration otherwise payable for that supply is increased by the amount of any GST payable in respect of that taxable supply, and that amount is payable at the same time as the GST exclusive consideration.
11.4 Each party agrees to do all things, including providing tax invoices and other documentation, that may be necessary to enable the other party to claim any input tax credit, adjustment or refund in relation to any amount of GST paid or payable.
12. Interest
12.1 Interest accrues on overdue amounts at the rate of 20% per annum, compounding daily.
12.2 Interest is charged from the date the payment was due until the date the payment is made.
13. Risk and insurance
13.1 Goods supplied and/or delivered by AOTech to the Customer are at the Customer’s risk immediately upon being made available for unloading at the delivery location specified in an accepted order.
13.2 The Customer must insure the goods at its cost from the time that the goods are made available for unloading at the delivery location until
they are paid for in full against such risks as it reasonably thinks appropriate and must note interest of AOTech on the policy and produce a certificate to this effect to AOTech on request.
14. Retention of title
14.1 In this clause 14:
(a) PPSA means Personal Property Securities Act 2009 (Cth); and
(b) a term that is used in italics in this clause 14 has the same meaning as in the PPSA.
14.2 Subject to clause 5.1 and the preservation of AOTech’s rights under the PPSA in respect of the Software, property in the goods supplied by AOTech to the Customer under these Terms does not pass to the Customer until those goods, and any goods previously supplied, have been paid for in full, unless and until the goods are paid for in full by way of finance. The Customer in the meantime takes custody of the goods and retains them as the fiduciary and bailee of AOTech. Any amounts owed by the Customer to AOTech (including payment for services) constitutes both a security interest and an equitable interest in land that may be the subject of a Caveat under the Real Property Act 1900.
14.3 The Customer charges any real property that it owns and grants AOTech a mortgage or a charge over any real property that the Customer owns to secure the recovery of any amounts due under this Document.
14.4 Until the goods have been paid for in full, the Customer must:
(a) store the goods in such a manner as to show clearly that they are the property of AOTech;
(b) keep the goods fully insured in accordance with these Terms and at the Customer’s cost and hold the proceeds of any insurance claim in respect of the goods (to the extent of the Customer’s debt to AOTech) in trust for AOTech;
(c) not sell or sub-licence the goods, and if does so, the Customer grants AOTech a security interest in every payment to the Customer for the goods (both as proceeds of the goods and as original collateral); and
(d) not sell, sub-licence, charge or otherwise encumber the goods or grant any interest over any debts and other obligations which any third party may owe to the Customer as a result of the use or resale of the goods.
(e) Once the goods are delivered by AOTech, they must not be removed from the location that they were delivered to, at any time and for any reason without prior written consent of AOTech.
14.5 The Customer irrevocably authorises AOTech at any time, to enter any premises:
(a) Upon which the Customer’s records pertaining to the goods are held:
i. to inspect the goods; and/or
ii. if the Customer has breached these Terms or suffered an Insolvency Event, to reclaim possession of the goods (even if mixed with other goods); and
(b) Upon which the Customer’s records pertaining to the goods are held, to inspect and copy the records.
14.6 The Customer indemnifies AOTech against any liability to any person in connection with the entry or reclamation.
14.7 AOTech may commence legal action against the Customer if the goods are not paid for within the applicable credit terms or any separate arrangement for the credit made by AOTech with the Customer although property in the goods has not passed to the Customer.
14.8 The Customer acknowledges and agrees that:
(a) This clause 14 creates a security interest in all present and after acquired goods (including any Software, for the avoidance of
doubt) and any proceeds as security for the Customer’s obligations to AOTech;
(b) AOTech is a secured party in the relation to the goods and any proceeds of the goods, and is entitled to register its interest on the register as;
i. a security interest; and
ii. if applicable, a purchase money security interest;
(c) AOTech may, by notice to the Customer, require the Customer to take all steps requested by AOTech to ensure its security interest in the goods and the proceeds are enforceable, and to perfect, or better secure the position of AOTech and the Customer must comply with that notice; and
(d) AOTech is not obligated to give any notice, document or information under the PPSA, unless the provision of the notice, document or information is required by the PPSA and cannot be excluded.
14.9 Until the goods have been paid for in full and any other money owing by the Customer to AOTech has been repaid, every payment by the Customer to AOTech must be taken to be a payment:
(a) firstly, of any amount owed by the Customer to AOTech that is not subject to a security interest;
(b) secondly, of any amount owed by the Customer to AOTech that is subject to a security interest, to the extent that the security interest is not a purchase money security interest; and
(c) thirdly, of any amount owed by the Customer to AOTech that is subject to a security interest, to the extent that it is a purchase money security interest.
14.10 An ordinary acknowledgment by AOTech to the Customer that an invoice has been paid is not, and must not be treated as a Document by AOTech to amend the order of priority set out in clause 14.8.
14.11 If any of the goods are on-sold to a third party or are lost, stolen or damaged, AOTech may trace the proceeds of such sales or any insurance proceeds and the Customer must hold on trust for AOTech the proceeds of such sales or insurance proceeds up to an amount equivalent to the amount owing to AOTech in respect of those Goods and must remit such amounts to AOTech on demand.
14.12 The parties may not disclose any information of a kind referred to in section 275(1) of the PPSA this is not in the public domain.
14.13 AOTech is not obliged to give any notice or provide copies of any documents or information under the PPSA, including, but not limited to under section 95, 118, 130, 123(3)(d), 132(4), 135, or 157 of the PPSA, unless the notice, document or information is required by the PPSA and cannot be excluded.
14.14 The Customer consents to the waiver of the right to receive notice, copies of documents or information under clause 14.12.
14.15 To the extent that chapter 4 of the PPSA would otherwise apply to enforcement by AOTech of any security interest in the goods, the parties agree that the following provisions of the PPSA are excluded;
(a) to the extent section 115(1) of the PPSA allows them to be excluded; Sections 125, 123(3)(D), 123(4), 135, 142 and 143 of the PPSA; and
(b) to the extent section 115(7) of the PPSA allows them to be excluded: sections 129(2) and (3), 132, 133(1)(b) (as it relates to AOTech’s security interest), 14(2), 135, 136(3)(4) and (5) of the PPSA.
14.16 The Customer consents to the waiver of the requirement for notice under any other provision of the PPSA that AOTech may notify to the Customer after the date of this document and the Customer waives any right it has to receive that notice.
15. Storage
15.1 AOTech may agree, upon request by the Customer, to temporarily store goods on behalf of the Customer, on terms agreed between the Customer and AOTech.
15.2 If AOTech agrees to store goods on behalf of the Customer, the Customer agrees that:
(a) The goods will remain at the Customer’s risk for the duration of the storage period;
(b) The Customer must insure the goods for the duration of any period of storage; and
(c) AOTech will not be responsible for any loss, damage or destruction that occurs to the goods while stored by AOTech.
15.3 The Customer indemnifies AOTech for all losses, liabilities, costs and expenses arising directly or indirectly in connection with the storage of the goods by AOTech in accordance with this clause.
16. Warranties, exclusions and limitations
16.1 AOTech warrants that it is an authorised reseller of the Software and to the best of its knowledge, the licensor of the relevant Software is the owner or authorised licensee of the Software.
16.2 Subject to clauses 16.3 and 16.4 and to the maximum extent permitted by law, these Terms exclude all other conditions, guarantees, warranties, liabilities, rights or representations in relation to the goods and services, whether statutory, implied or otherwise.
16.3 Where legislation implies in these Terms any condition or guarantee which cannot be excluded or modified, the condition or guarantee is deemed to be included in these Terms.
16.4 To the maximum extent permitted under the Competition and Consumer Act 2010 (Cth), the liability of AOTech for a breach of any non-excludable condition or guarantee about the goods or services, is at the absolute option of AOTech, limited to any one or more of the following:
(a) In the case of the goods:
i. the replacement of the goods or the supply of equivalent goods;
ii. the repair of the goods;
iii. the payment of the cost of replacing the goods or of acquiring equivalent goods, by credit to the Customer’s account, in cash or by cheque at AOTech’s absolute discretion;
iv. the payment of the cost of having the goods repaired; or
v. repayment of any part of the purchase price of the goods which has been paid by the Customer, by credit to the Customer’s account, in cash or by cheque at AOTech’s absolute discretion; and
(b) In the case of the services, the supply of the services again or the payment for the cost of the supply of the services again by credit
to the Customer’s account, in cash or by cheque at AOTech’s absolute discretion.
16.5 To the maximum extent permitted by law, AOTech has no liability for any loss or damage of any kind whatsoever, including without limitation, for any indirect or Consequential Loss (including without limitation, loss of profits, income, business opportunity, goodwill, anticipated savings or benefits, economic loss or loss, or corruption of data), even if due to the negligence of AOTech or its agents or employees arising out of or in connection with the supply of the goods or services.
16.6 Where AOTech is unable to limit its liability as set out above, to the maximum extent permitted by law, AOTech’s aggregate liability for all claims connected directly or indirectly with the goods and services (including claims of negligence) is limited to an amount equal to the amount paid by the Customer for the goods and services.
16.7 AOTech will not be liable to the Customer for any delay or non-performance of its obligations, to the extent that such delay or non-performance arises from: circumstances beyond its control; acts of God or nature; actions of the government (including the change or introduction of any law or regulation); fire; flood, strike or other labour dispute; civil disturbance; tourism; or power, air conditioning, communication or network failure.
16.8 Evaluation provided by AOTech is deemed accepted by the Customer unless the Customer notifies AOTech that it rejects such a valuation within five (5) Business Days of receipt.
17. Customer Warranty and Indemnity
17.1 To the maximum extent permitted by law, the Customer indemnifies AOTech, regardless of any negligence on the part of AOTech or its employees or agents, against:
(a) all losses incurred by AOTech;
(b) all liabilities incurred by AOTech; and
(c) all costs actually payable to its legal representatives and any other expenses in connection with a demand, action, arbitration or other proceeding, arising directly or indirectly as a result of or in connection with:
i. the supply of goods or services by AOTech to the Customer;
ii. the trade-in or storage of equipment or used goods by AOTech for the Customer (including connection with any third-party Claims arising from such trade-in or storage); and
iii. any breach of these Terms by the Customer, unless caused by willful misconduct on the part of AOTech.
17.2 The Customer represents and warrants to AOTech that:
(a) it has acquired the Equipment and the Services for business and/or investment purposes and not for resale or for personal, domestic or household use or consumption and the Customer acknowledges that the Equipment is not ordinarily acquired for such a purpose;
(b) it has the right and authority to enter into and perform this Document;
(c) it has the authority to permit AOTech to decommission, remove and dispose of any third party equipment that is to be removed; and
(d) it has received and carefully read any documents provided, or in the case of Third Party Equipment, the Specifications, prior to entering into this Document, and has based its decision to acquire the Equipment and Services solely on their contents.
18. Suspension or Recall
18.1 If the Customer is directed to assist in any suspension or supply or recall of goods for any reason by AOTech or any government authority, the Customer must co-operate and comply with all such reasonable directions to ensure the most effective response to the suspension or recall.
18.2 The sole cost and expense of such suspension or recall will be borne by:
(a) AOTech to the extent the costs and expenses are reasonable and necessary, and where the reason for the suspension or recall is fault in the manufacture of the goods; and
(b) the Customer for any other reason.
19. Purchase of Consumables
If any goods or services are purchased from AOTech and consumables are not included in the price, then all consumables required to be purchased for the goods must be purchased from AOTech.
20. Trusts
20.1 The provisions of this clause apply if the Customer is entering into these Terms in its capacity as a trustee of a trust, whether stated in the Details Section or not.
20.2 The Customer enter into these Terms in its personal capacity and as a trustee of the trust.
20.3 The Customer warrants to AOTech that:
(a) it has unrestricted authority and power to enter into these Terms;
(b) entering into these Terms is in the sure and proper administration of the trust and is for the benefit of the beneficiaries of the trust;
(c) the performance by the Customer of its obligations under these Terms has been duly authorised in accordance with the terms of the trust; and
(d) no limitation or restriction exists in respect of the Customer’s right to be indemnified from the trust assets for its obligations under these Terms.
20.4 The Customer must not, so far as it is able to do so, permit any of the following to occur without AOTech’s prior written consent:
(a) any variation, replacement or limitation of the terms of the trust deed;
(b) its removal as trustee or the appointment of another trustee of the trust whether or not in conjunction with the Customer; and
(c) any distribution, transfer or setting aside of any part of the income or capital of the trust.
21. Privacy
Where goods are supplied to the Customer on credit the Customer agrees that any Customer who is an individual or any individual who will be a guarantor of the credit provided to the Customer (whether or not an individual) are subject to AOTech’s Privacy Policy and the individual Customer or individual guarantor will be required by AOTech to provide the relevant consents for compliance with the Privacy Act 1988 (Cth).
22. Notices
A notice or other communication connected with these Terms has no legal effect unless it is in writing.
23. Waiver
23.1 A party’s failure or delay to exercise a power or right does not operate as a waiver of that power or right.
23.2 A waiver is not effective unless it is in writing. To be effective any waiver by AOTech must be in writing on letterhead and signed by a duly authorised representative.
24. Entire understanding
24.1 These Terms and any ancillary documents entered into in writing and signed by the parties in relation to the goods and services:
(a) are the entire agreement and understanding between AOTech and the Customer on everything connected with the supply of the
goods and services; and
(b) supersede any prior agreement or understanding on anything connected with that subject matter.
24.2 Unless expressly provided otherwise, where there is any inconsistency in these Terms and any ancillary documents, to the extent of the inconsistency, the order of priority in applying to the terms will be as follows, commencing from the highest order of priority:
(a) these Terms; and
(b) other ancillary documents.
24.3 In the event of any inconsistency the Customer and AOTech undertake to each other to do all things within their control to make the ancillary documents consistent with these Terms applying the order of priority stated in clause 24.2.
24.4 AOTech and the Customer have entered into these Terms without relying on any representation by the other or any person purporting to represent the other.
24.5 The Customer acknowledges that prior to entering into this Document it has had the opportunity to obtain independent legal and financial advice.
25. Independence
These Terms and all agreements relating to it are mutually independent and a breach of any covenant, term or condition of any of these Terms or of any one (1) or more of those agreements will constitute a default under each of those documents.
26. Severability
Any term of these Terms which is wholly or partially void or unenforceable is severed to the extent that is it void or unenforceable. The validity or enforceability of the remainder of these Terms is not affected.
27. Variation of Terms and Assignment
27.1 Any amendment or variation to these Terms is not effective unless it is in writing and signed by both parties.
27.2 The Customer must not assign or transfer this Document or any benefit or right under it without the prior written consent of AOTech, and AOTech may without notice assign this Document or any benefit or right under it.
28. Governing law and Jurisdiction
28.1 The law of New South Wales governs these Terms.
28.2 The parties submit to the non-exclusive jurisdiction of the courts of New South Wales and the Commonwealth of Australia.
29. Application of Part
29.1 Part B applies to each supply of Support Services made by AOTech to the Customer
29.2 The definitions and interpretations in this Part B apply in addition to the definitions and interpretations set out in Part A and in the event of inconsistency, the terms in Part B will prevail.
30. Definitions and Interpretations
30.1.1 In this Part B:
Billing Period means the billing period for Charges as set out in the Details Section.
Break Fee means the fee calculated in accordance with the following:
(a) the then unpaid balance of Support Services Charges; and
(b) the balance of Support Services Charges for the remainder of the Minimum Term or three (3) months whichever is longer; and
(c) If the Customer is charged “Costs per Impression” in the Charges Schedule then:
(j) the balance of the Support Services Charges in (b) above is calculated on the basis of the “Minimum Monthly Volume”; and
(ii) if no Minimum Monthly Volume is stated in the Charges Schedule, then the unpaid balance of the Support Services Charges is calculated based on the average number of Impressions generated in the 12 months prior to the termination date; and
(iii) if the period prior to termination is less than 12 months then, the amount of $180 plus GST for every item of Equipment; and
(d) a $900 plus GST administration fee for the processing of the termination of this agreement; and
(e) the amount left unpaid and payable under any finance or rental agreements with any third parties related to the Products, for the remaining loan or rental term period, or provide evidence to AOTech (and to the satisfaction of AOTech) that this amount has been paid in full directly to the third party;
(f) the cost to AOTech of any installation, relocation and removal of the Products; and
(g) any other reasonable business expense incurred by AOTech due to the termination;
Charges means the Support Services Charges and any charges for Additional Services.
Commencement Date means the date of which the Equipment is installed by AOTech.
Consequential Loss means any claim for; any consequential, special or indirect cost, loss or liability: any loss of business opportunity, loss of revenue, profit or savings; and any loss, corruption or delay of data.
Consumer Price Index means the Australian Consumer Price Index determined from time to time.
Document Supplies includes paper, transparencies, staples and other through put materials.
FM Audit Software means the software set out in clause 36.
Impression means a single sided print or copy, or for continuous feed equipment, means each single sided lineal foot of stock that is printed by the Equipment, as recorded by the Equipment meter.
Mandatory Retrofit means a modification to the Equipment determined by AOTech to be necessary for safety.
Monthly Maximum Usage means the maximum amount of usage by the Customer of the Equipment.
Minimum Term means the minimum term for provision of the Support Services and the payment of relevant
Charges as set out in the Product Schedule taken from the Commencement Date.
PPSA Register means the Personal Property Securities Register established under the PPSA.
Products means any goods supplied under this Document including Equipment (if any), Software, Consumables, and any parts installed by AOTech in the Equipment in the course of performing the Support Services.
Recovered Amount means any money received by AOTech, within 30 days from the date the Equipment is lost, stolen, damaged or destroyed from the Customer’s insurance policies required under clause 33(a)(iii), if any.
Support Services means the services to be provided by AOTech to the Customer as set out in clause 36 of this Document but excludes Additional Services.
Support Services Charges means the charges for the Support Services calculated on the basis of the “Fixed Monthly Charge” or “Costs per Impression” amount specified in the Details Section, any charges for Additional Services and any other charges in the “Other Charges” section.
31. Agreement
a) By signing this Document, the Customer irrevocably offers to acquire the Support Services from AOTech.
b) The Customer authorises AOTech to insert any missing information into the Details Section which is not known at the date of the Customer signing this Document, such as the Commencement Date, the Document number and the serial numbers.
32. Term and Termination
(a) Unless terminated earlier in accordance with this Document, the Customer agrees to acquire the Support Services from AOTech for the Minimum Term.
(b) If the Minimum Term expires, and neither party has given the other 30 days written notice of on intention to terminate this Document then this agreement shall continue on a month by month holding over basis until terminated by either party by giving the other no less than 30 days written notice to that effect. During this holding over period all Terms of this agreement continue to bind the parties and the Customer must continue paying all Charges.
(c) If the Customer is in breach of this agreement or another agreement with AOTech, or if AOTech considers there may be a risk to the health and safety of its personnel, AOTech may suspend the provision of Services. Any suspension of the Services does not excuse any of the Customer’s obligations to comply with this agreement, including the continued payment of the Charges.
(d) The Customer may elect to terminate this agreement early by giving 30 days written notice to AOTech.
(e) AOTech may immediately by notice terminate this agreement if:
(i) the Customer breaches any term of this agreement;
(ii) the Customer becomes subject to an Insolvency Event;
(iii) a guarantee given to AOTech in relation to the performance of the Customer’s obligations or potential liability under this agreement lapses, becomes unenforceable or the guarantor dies or becomes subject to an Insolvency Event; or
(iv) any Equipment is lost, stolen, destroyed or damaged to an extent AOTech considers unrepairable or the Equipment has been relocated to premises other than the initial place of installation.
(f) If the Customer terminates this agreement under clause 32(d) or if AOTech terminates this agreement under clause 32(e), or the parties agree in writing to terminate this agreement early, the Customer must:
(i) immediately comply with clause 32(i); and
(ii) within 7 days of being provided with an invoice from AOTech, pay AOTech the Break Fee and any other charges due and payable under this agreement.
(g) Unless otherwise stated, early termination of this agreement for any reason does not effect AOTech’s rights to seek damages for any breach of this agreement and does not entitle the Customer to a refund of any period charges.
(h) Upon the expiration or termination of this agreement, the Customer must erase any data on the Equipment’s hard drive, and at AOTech’s option, return or destroy all Documentation in its possession or control.
(i) Upon the expiration or termination of this Document, the Customer must deliver up the Products in good working order subject only to fair wear and tear, to AOTech by arranging for and allowing AOTech onto the Customer’s premises (or where the Products are located) and by providing reasonable assistance to AOTech to allow AOTech to decommission and remove the Products from the premises at the rate of $700 plus GST per Product.
(j) If the Customer fails to comply with clause 32(i) within 5 Business Days of the expiration or termination of this agreement, then AOTech or its nominee may, without notice, enter upon the premises on which the Products were last known to be located and repossess the Products and the Customer indemnifies AOTech and its nominee for any Claims, Consequential Losses, liabilities and expenses suffered or incurred as a result.
(k) If requested by the Customer, AOTech may in its absolute discretion, provide written consent to the Customer allowing the Customer to arrange for the delivery of the Products at its own expense to AOTech to a location as nominated by AOTech in its absolute discretion and in this regard risk in the Products does not pass to AOTech until AOTech confirms delivery of the Products in writing.
(l) The parties agree and acknowledge that the Break Fee is a genuine pre-estimate of AOTechá damages in the event of termination of this agreement.
33. Customer Obligations
a) The Customer must:
(i) not sell, assign, mortgage, charge, port possession with, grant a lien, license or otherwise encumber or allow any person to encumber the Equipment in any way;
(ii) ensure that the Equipment is not modified, tampered with or relocated, without AOTech’s prior written consent, or used for any unlawful purpose;
(iii) insure the Equipment for its full replacement value on an all risks bases noting AOTech as an interested party under such policy, and upon demand indemnify AOTech for any loss or damage to the Products (including all associated costs and notwithstanding whether the Customer is entitled to claim or recover under its insurance policy) except for fair wear and tear and to the extent directly attributable to AOTech’s negligence or default;
(iv) provide AOTech with Equipment meter readings in line with the Billing Period unless otherwise set out in the Details Section;
(v) maintain proper site, environmental and operational conditions (including the use of Document Supplies and Consumables) and follow all AOTech instructions and directions regarding the Equipment and Services, including those in the Documentation, or otherwise given by AOTech from time to time;
(vi) allow AOTech or its agents immediate access to the Customer’s premises and the Products during Business Hours to perform the Services and verify that the terms of this agreement are being complied with;
(vii) ensure any Customer supplied items and premises are safe and sufficient to enable AOTech to perform its obligations under this agreement; and
(viii) not subcontract any of its obligations under this agreement.
34. Credit Approval
(a) The Customer agrees that from the date it signs this Document:
(i) AOTech may obtain a report about the Customer’s and any guarantor’s consumer and/or commercial credit worthiness from a credit reporting agency or a commercial credit reporting business, for the purpose of assessing the Customer’s and any guarantor’s credit worthiness or collecting any overdue payments;
(ii) the Customer agrees that information from its application or concerning AOTech’s credit provider history or status may be disclosed; and
(iii) that AOTech may give to a credit provider or a credit reporting agent a report about the Customer’s, or its guarantor’s consumer or commercial credit history or status for the purpose of prospective credit providers assessing the application made by the Customer or a guarantor to a credit provider, or collecting any payment that is overdue (either directly or through a credit reporting agency).
(b) The Customer has or will procure any necessary consents from any Customer guarantor and from any persons set out in the credit application which accompanies this agreement.
35. Charges, Payment and GST
(a) The Customer must as a fundamental term of this Document pay AOTech in full without any deduction or set off;
(i) all fees, charges and other amounts invoiced by AOTech under this Document, including the Charges by the due date noted on the invoice.
(ii) AOTech’s system generated invoices for Support Services are based upon, at AOTech’s option, the historical usage of the Equipment’s average capacity, if the Customer fails to comply with clause 36(g) and at the minimum amount calculated in accordance with the Minimum Monthly Volume stated in the Details Section;
(iii) any dishonor or re-presentation charges, collection agency costs, third party claims, costs and losses or legal fees and disbursements suffered or incurred by AOTech (all on a full indemnity basis) as a consequence of the Customer failing to comply with this agreement (including as a result of AOTech exercising any of its rights under this agreement in response to that failure); and
(iv) for Additional Services, at AOTech’s then standard rates.
(b) All Charges are GST exclusive and if taxable supplies under the GST Law shall be payable, grossed up to recover GST at the then prevailing rate. The Customer will pay GST at the same time as the Charges providing AOTech provides the Customer with a tax invoice that complies with the GST Law.
(c) AOTech may vary the Support Service Charges by giving the Customer at least 30 days prior notice.
(d) If the Customer is charged “Costs per Impression” in the Charges Schedule and produces less Impressions than the “Minimum Monthly Volume” stated in the Charges Schedule, then they must pay the amount calculated per month based on the Minimum Monthly Volume stated.
(e) If the Customer is charged Costs per Impression and a “Minimum Monthly Volume” is not stated in the Charges Schedule and the Customer does not produce sufficient chargeable Impressions to compensate AOTech for providing the Support Services then AOTech reserves the right to impose upon the Customer a reasonable additional or varied charge to ensure that AOTech is not unfairly prejudiced.
(f) AOTech may in its sole discretion charge the Customer an administration fee of $200 plus GST every 6 months.
(g) The Fixed Monthly Charge and Costs per Impression stated in the Charges Section will be increased by a percentage equivalent to the Consumer Price Index every 12 months, calculated and applied every 6 months.
36. Support Services
(a) If AOTech is to provide Support Services, then AOTech will provide Support Services to ensure the Equipment is in proper working order within a reasonable period of receiving a request for services from the Customer. Support Services will be provided during Business Hours or such other times as agreed in writing between the parties.
(b) The provision of Support Services by AOTech to the Customer is for the Minimum Term and any holding over period unless this agreement is terminated sooner pursuant to clause 32.
(c) Support Services include:
(i) the provision of corrective maintenance for the Equipment;
(ii) the repair or replacement of parts of the Equipment which through fair wear and tear become unserviceable;
(iii) Mandatory Retrofits;
(iv) Consumables (unless otherwise stated in the Details Section); and
(v) access to a telephone helpline service for assistance with hardware problems and questions on its operation and use; and
(vi) for Base Software:
A the supply of Maintenance Releases;
B the supply from time to time of technical bulletins;
C access to a telephone helpline service for assistance with Base Software and questions on its operational use;
D attendance, if AOTech Considers it necessary, at the installation site for the purpose of diagnosing and correcting errors in the Base Software that have been reported by the Customer; and
E assistance in diagnosing errors in the Software and Equipment.
(d) Replacement parts will be of serviceable quality and may be new, refurbished or remanufactured.
(e) Toner where included must only be used in the Equipment and is provided based upon the assumed page coverage specified by the manufacturer.
(f) The Customer must pay the Support Services Charges stated in the Details Section or as varied by AOTech from time to time in accordance with these Terms, or as otherwise agreed in writing between the parties.
(g) AOTech may at any time by giving 30 days prior notice to the Customer, increase the Costs per Impression to an amount which AOTech at its discretion considers appropriate to cover any increase in costs or expenses, in which case these Terms are deemed to be varied.
(h) If the Customer is charged Costs per Impression, the Customer must continue to pay the Costs per Impression notwithstanding any defect in, breakdown of, or accident or damage to, or seizure or loss of the Equipment, and allow AOTech access during normal business hours to the Equipment for the purpose of reading the meters on the Equipment.
(i) Payment of Support Services must be made by the Customer in the manner that AOTech may from time to time nominate, and otherwise in accordance with clause 10 and 35. AOTech may require that payments be made by direct debit or other electronic means.
(j) The Customer must only use paper and such other Consumables in the Equipment that have received the prior approval of AOTech.
(k) AOTech will not be responsible for providing Support Services or parts where they are required as a consequence of the misuse or negligence of the Customer.
(l) The Customer must, if required by AOTech, appoint an operator to be responsible for the use and routine care of the Equipment, who will be trained by AOTech.
(m) AOTech may terminate the provision of Support Services immediately upon written notice to the Customer, if:
i. The Customer breaches these Terms;
ii. The Equipment is sold, damaged, lost, stolen or located at premises not approved by AOTech;
iii. The Equipment is serviced by persons other than AOTech or its appointed agent; or
iv. Non-approved Consumables or parts are used in the Equipment.
(n) Maintenance Releases must be implemented by the Customer within one (1) month after being made available by AOTech.
(o) AOTech will use reasonable efforts to resolve coding areas of the software and provide workarounds or patches provided the Customer reports the problems accurately and with the detail required by AOTech. The Customer accepts that AOTech may not necessarily correct all errors.
(p) Support Services shall terminate immediately and without further notice where a license granted to the Customer in respect of the Equipment or the Base Software expires or is terminated.
(q) Any Equipment and Base Software that have not been subject to AOTech provided Support Services continually since the date of delivery, will only be eligible for Support Service subject to Customer paying:
(i) any applicable Software license fees: and
(ii) any reasonable charges assessed by AOTech for the evaluation or as necessary to bring the Equipment and Base Software into what AOTech reasonably determines is a supportable state of repair or release.
(r) AOTech may elect to provide Support Services by telephone, through providing access to its external website, email or remote diagnostics and in relation to the Equipment by providing on-site Support Services at the Customer’s normal place of business.
(s) Where the Details Section indicates that AOTech is to provide FM Audit Software and provided that the Customer meets the performance and operational requirements set out in the FM Audit Software specifications on a continuing basis, from the date FM Audit Software becomes active:
(i) AOTech will remotely obtain the meter readings as stated in the FM Audit Software specifications where the meter readings can be remotely captured by FM Audit Software;
(ii) AOTech will provide the reports stated in the FM Audit Software specifications; and
(iii) AOTech will remotely monitor and respond to incident and Consumable alerts as stated in the FM Audit Software specifications by either advising the Customer’s nominated contact or dispatching a service technician and the Customer will pay for any Consumables and supplies ordered by AOTech not otherwise included in the Support Services.
(t) AOTech will remotely capture the meter readings where an FM Audit Software and the Customer does everything necessary to allow AOTech to remotely capture the meter readings.
(u) AOTech may cease making available Support Services (including parts and labour on a time and materials basis) five (5) years after the date that AOTech or its supplier ceases new manufacture of the model of Equipment
(v) If the Customer is charged a Fixed Monthly Charge and the Customer’s usage of the Equipment exceeds the Monthly Maximum Usage, then AOTech, may at its sole discretion charge the Customer extra charges based on AOTech’s then current price list.
(w) Where the Details Section indicates that AOTech is to provide FM Audit Software and the Customer does not download, use or meet the performance and operational requirements set out in the FM Audit Software specifications on a continuing basis, then AOTech may charge the Customer a monthly fee of $150 plus GST for every month that the Customer does not do so to cover AOTech’s losses for the Customer’s failure.
37. Additional Services
(a) Unless otherwise set out in the Details Section, neither the supply of the Equipment nor the performance of Support Services include the following which are chargeable at AOTech’s then standard charges:
(i) site preparation, delivery, installation, integration, customization, relocation, decommissioning and removal services;
(ii) the supply or support of incidental hardware not specified in the Documentation as included;
(iii) Document Supplies;
(iv) additional copies of Documentation;
(v) training (other than included initial training (if any));
(iv) repairs caused by an accident, mistreatment or failure by the Customer to comply with the Documentation or its obligations under this Document;
(v) excess toner usage;
(vi) repairs to, or support of, software not supplied by AOTech, or of Software provided by AOTech that is neither the current or preceding release of the Software;
(vii) rectification of lost or corrupted data howsoever caused;
(viii) data deletion from the Equipment hard drive;
(ix) new Software releases provided or made available to the Customer that are not identified by AOTech as a Maintenance Release;
(x) services required or requested as a result of a change in the Customer’s premises or technology environment;
(xi) hardware upgrades necessary for new versions of the Base Software;
(xii) support of all the provision of parts, supplies and Consumables for Equipment not listed in the Details Section; or
(xiii) the support of Software modified in anyway.
(b) Where the Details Section expressly sets out that AOTech will provide Support Services for Third Party Equipment:
(i) the Support Services will, unless otherwise set out therein, be provided on the same terms as the Support Services for the Equipment and AOTech may cease making the Support Services available to any Customer on the earlier of:
i. five (5) years after the date that the supplier of the Third-Party Equipment ceases new manufacture of that model and;
ii. the date which the supplier of the Third-Party Equipment ceases to supply AOTech with the parts, Consumables or other assistance required by AOTech to provide the Support Services.
38. PERSONAL GUARANTEE
In consideration of AOTech agreeing to supply goods and/or services to the Customer, each Guarantor enters into this Guarantee in favour of AOTech in the following terms:
1. Request Each Guarantor requests AOTech to supply services to the Customer in accordance with the Terms contained herein.
2. Guaranteed Money Each Guarantor guarantees to AOTech the due and punctual payment by the Customer of the payment of all amounts payable pursuant to the Terms and the Documents.
3. (Guaranteed Money) and the Guaranteed Money will be payable by the Guarantor/s to AOTech immediately on demand by AOTech.
4. Performance Each Guarantor unconditionally and irrevocably guarantees the Customer’s due and punctual performance of all of the Customer’s obligations contained in the Document and the Terms (Customer’s Obligations).
5. Release and Indemnity
5.1 Neither AOTech nor any person appointed by AOTech under any document will be liable for any
loss that any Guarantor suffers as a direct or indirect result of:
(a) the exercise or attempted exercise of, or failure to exercise, any rights under any Document; or
(b) any release or dealing with any Security Interest.
5.2 Each Guarantor will indemnify AOTech, AOTech’s Receiver or any other person appointed by AOTech in relation to any losses, liabilities,
expenses (including but not limited to legal expenses on a full indemnity basis) or taxes incurred in connection with:
(a) the exercise or attempted exercise of any powers, rights, discretions or remedies vested in the person under any Document or the Corporations Act; or
(b) any proceedings, claims or demands in relation to any secured property.
5.3 Each Guarantor indemnifies AOTech in relation to any direct and indirect losses, damages or expenses which AOTech suffers as a result of:
a) the Customer’s failure to perform, or delay in performing, any of the Customer’s Obligations; and
b) the Guarantor’s failure to perform, or delay in performing, any of the Guarantor’s obligations under this Guarantee.
6. Expenses
Each Guarantor must pay AOTech, on a full indemnity basis as a liquidated debt, the full amount of any bank fees legal fees or other expenses associated with any dishonoured payments or cheques and any legal, debt recovery or other expenses associated with any action by AOTech to exercise any right or remedy under this Guarantee.
7. Continuing Guarantee
7.1 This Guarantee is a continuing guarantee in respect of all money due to AOTech at any time and will not be wholly or partially satisfied or discharged by the payment of any money to AOTech or any other event.
7.2 This Guarantee will not be affected by:
(a) any variation to the Terms and Conditions contained herein whether with or without the knowledge or consent of any Guarantor;
(b) any event of insolvency affecting a person or the death of a person;
(c) any change in the constitution, membership, or partnership of a person;
(d) the partial performance of the Customer’s Obligations;
(e) any of the Customer’s Obligations being invalid or unenforceable at any time;
(f) AOTech granting any time or other indulgence or concession to the Customer; or
(g) the release of any Guarantor (if there is more than one Guarantor).
7.3 No Guarantor will be released from this Guarantee unless the Guarantor provides a written request for a release to AOTech and AOTech provides a written agreement to the release which AOTech may provide or withhold in AOTech’s absolute discretion.
8 Enforcement
AOTech may enforce this Guarantee without first having to enforce any of AOTech’s rights against the Customer or having resort to any other guarantee or security in relation to the Customer’s Obligations.
9 Principal Obligation
This Guarantee is a principal obligation and is not ancillary or collateral to any other right or obligation.
10 Independent
This Guarantee is independent of any other guarantee or security in relation to the Customer’s Obligations.
11 Security Interest
11.1 To secure the punctual payment of all amounts owed by the Client and/or the Guarantor to AOTech, each Guarantor grants to AOTech:
a) a security interest (as defined under the PPSA) over all present and after-acquired property of the Guarantor in relation to which the Guarantor can be a grantor of a security interest under the PPSA, whether or not the Guarantor has title to the property, including but not limited to all PPSA retention of title property (as defined under section 51F of the Corporations Act); and
b) a fixed charge over all present and after-acquired property of the Guarantor in relation to which the Guarantor cannot be a grantor of a security interest under the PPSA.
11.2 Each Guarantor agrees and acknowledges AOTech may (without limiting AOTech’s other rights under this Guarantee, at law or otherwise) lodge caveats over the Guarantor’s real property and take any other action to secure and enforce AOTech’s security under clause 11.1.
11.3 AOTech’s security under clause 11.1 may become enforceable without the need for any demand or notice to the Guarantor.
11.4 If AOTech’s security under clause 11.1 has become enforceable, AOTech may appoint a Receiver of secured property or exercise any power exercisable by a Receiver even if a Receiver has not been appointed.
11.5 Each Guarantor agrees on demand, and irrevocably appoints AOTech, each director and secretary of AOTech and any Receiver (as independent and several appointments) as the Guarantor’s agent and attorney, to execute any document (including, without limitation, any mortgage or transfer) or undertake any act, at the Guarantor’s cost, that AOTech considers necessary or desirable to:
a) better secure the security under clause 11.1 in a manner consistent with any Document; or
b) assist in the completion, execution of, or exercise of any power under, any Document.
12. Personal Property Securities
12.1 Each Guarantor agrees that funds received by AOTech will be applied, after satisfaction of any claim that AOTech or Receiver is aware ranks in priority, in the following order:
a) first in payment of all expenses that AOTech or Receiver incurs in the exercise of a power or otherwise in relation to any Document;
b) then in payment of any other outgoings that AOTech or Receiver considers appropriate to pay;
c) then in payment to the Receiver of any remuneration;
d) then in payment to AOTech or Receiver of any amount necessary to give effect to any indemnity under any Document; and
e) then in payment to AOTech of all amounts owed by the Client or Guarantor to AOTech.
12.2 Each Guarantor:
a) agrees with AOTech that neither the Guarantor, nor AOTech, will disclose information of the kind specified in section 275(1) of the PPSA (except in the circumstances required by sections 275(7)(b) to (e) of the PPSA);
b) agrees that, to the extent permitted under section 115(1) of the PPSA, the following provisions of the PPSA do not apply: sections 95, 118, 121(4), 125, 130, 132(3)(d), 135, 138B(4), 142 and 143;
c) agrees that, to the extent permitted under section 115(7) of the PPSA, the following sections of the PPSA do not apply: sections 127, 129(2), 129(3), 132, 134(2), 135, 136(5) and 137;
d) acknowledges that AOTech may, at the Guarantor’s cost, register one or more financing statements in relation to any security under any Document;
e) waives, if permitted under the PPSA, the Guarantor’s right under section 157 of the PPSA to receive notice of any verification statement relating to the registration of any financing statement or any related financing change statement; and
f) will not, without prior written notice to AOTech, change the Guarantor’s name or initiate any change to any documentation registered under the PPSA.
13 Application of Money When AOTech or Receiver receives money under or because of any Document, and applies the money in payment of monies owing to AOTech, AOTech or Receiver may apply different parts of the money received to different parts of the monies owing in the absolute discretion of AOTech or Receiver regardless of any appropriation by the Client or the Guarantor.
14 Administration Until this Guarantee is released by AOTech, the Guarantor will not prove in any Administration of the Client in competition with AOTech.
15 Voluntary Each Guarantor acknowledges that the Guarantor has read and understands this Guarantee, enters into this Guarantee voluntarily and not as a result of any representation of AOTech or duress of any person.
16 Legal Advice Each Guarantor acknowledges that the Guarantor has had an opportunity to obtain independent legal and financial advice in relation to this Guarantee.
17 Joint and Several If there is more than one Guarantor, each Guarantor will be jointly and severally bound by the terms of this Guarantee.
18 Information Each Guarantor warrants that all the information set out in this Guarantee is true and correct and the Guarantor has disclosed to AOTech all information relevant to this Guarantee.
19 Notice Each Guarantor must immediately provide written notice to AOTech if there is any change in the ownership or control of the Guarantor or to the Guarantor’s details set out in the Details Section.
20 Administration If any payment by the Guarantor to AOTech is avoided as a result of, or AOTech settles any claim in relation to, any statutory provision arising as a result of any Administration, the payment will be taken not to have been made and AOTech will be entitled to recover the amount of the payment from the Guarantor.
21 General
21.1 This Guarantee binds the Guarantor both personally and as trustee of any trust of which the Guarantor is trustee.
21.2 AOTech may set off any amounts owed by AOTech to the Guarantor against any amounts owed by the Guarantor to AOTech whether under this Guarantee or otherwise.
21.3 A certificate or letter issued by AOTech stating that an amount of money is payable by the Client or Guarantor to AOTech will be prima facie evidence of the fact and the Guarantor will not object to the admissibility of such a certificate or letter in any legal proceedings.
21.4 This Guarantee may only be amended with AOTech’s express written agreement.
21.5 Any waiver of a right by AOTech must be express and in writing and will not operate as a waiver in relation to any subsequent matter.
21.6 AOTech’s rights arising out of this Guarantee do not exclude any other rights of AOTech.
21.7 The actions of any person claiming to have the Guarantor’s authority will bind the Guarantor to the extent permitted by law.
21.8 If any provision of this Guarantee is unenforceable, the provision will be severed and the remaining provisions will continue to apply.
21.9 AOTech may assign any rights or benefits under agreement under this Guarantee to any third party.
21.10 The Guarantor may only assign any rights or benefits under any agreement under this Guarantee with AOTech’s prior written consent.
21.11 Time is of the essence in respect of the Guarantor’s obligations in this Guarantee.
21.12 This Guarantee will be governed by the laws of, and the parties submit to the jurisdiction of the courts of, the state of AOTech’s registered address.
22 Definitions
In this Guarantee:
“Administration” means the following, or any analogous, events:
(a) any step is taken to appoint an administrator, receiver, receiver and manager, trustee, provisional liquidator or liquidator of the whole or any part of the Client ’s assets, operations or business;
(b) any person, or agent of a person, who holds any security interest (whether or not under the PPSA) takes possession of any of the Client ‘s property (including but not limited to seizing the Client ‘s property within the meaning of section 123 of the PPSA); or
(c) a court or other authority enforces any judgment or order against the Client for the payment of money or the recovery of any property;
“Corporations Act” means the Corporations Act 2001 (Cth);
“Guarantee” means the guarantee, indemnity and charge contained in this clause;
“Guarantor” means each person identified as a Guarantor in the Details Section;
“PPSA” means Personal Property Securities Act 2009 (Cth);
“Receiver” means a receiver or receiver and manager (or an additional receiver or receiver and manager).
23 Interpretation
In this Guarantee:
(a) the headings will not affect interpretation;
(b) the singular includes the plural and vice versa;
(c) any other grammatical form of a word or expression defined in this Guarantee has a corresponding meaning;
(d) a reference to a document includes the document as novated, altered, supplemented or replaced;
(e) a reference to a party includes the party’s executors, administrators, heirs, successors in title, permitted assigns and substitutes;
(f) a reference to a person includes a natural person, body corporate, partnership, trust, association or any other entity;
(g) a reference to a statute, ordinance, code or law includes regulations, rules and other instruments under the statute, ordinance, code or law and any consolidations, amendments, re-enactments or replacements;
(h) a word or expression defined in the Corporations Act has the meaning given to the word or expression in the Corporations Act;
(i) the meaning of general words is not limited by specific examples introduced by “including”, “for example” or similar expressions;
(j) any agreement, representation, warranty or indemnity by two or more parties binds those parties jointly and severally;
(k) any undertaking by a party not to do any act or thing will be deemed to include an undertaking not to permit or suffer the doing of that act or thing;
(l) a rule of construction does not apply to the disadvantage of a party because the party was responsible for the preparation of this Guarantee; and
(m) if a day on or by which an obligation must be performed or an event must occur is not a business day, the obligation must be performed or the event must occur on or by the next business day.
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