Equipment Supply and Service Agreement
- Terms and Conditions
1 Definitions and interpretation
1.1 Definitions
In these Terms and Conditions, unless the context requires otherwise or otherwise stated in the Commercial Terms:
Agreement means the agreement between INNOV8 and the Customer for the supply of equipment, consisting of:
(a) the Credit Application;
(b) the Commercial Terms;
(c) any Special Conditions
(d) these Terms and Conditions; and
(e) the Guarantee Terms.
Approvals means any certificate, licence, consent, permit, approval or other requirement of any Authority having jurisdiction in connection with the activities contemplated by this Agreement.
Accepted Order means a Quote and/or Commercial Terms accepted by the Customer on these Terms and Conditions.
Australian Consumer Law means the Australian Consumer Law set out in Schedule 2 of the Competition Consumer Act 2010 (Cth).
Authority means any government, semi-governmental, statutory, administrative, fiscal or judicial body, department, commission, authority, tribunal, public or other person.
Bank Account means:
Account Name:
BSB:
Account Number:
Business Day means a day which is not a Saturday, Sunday or public holiday in New South Wales.
Change in Control means:
(a) any alteration in the legal or beneficial ownership of, or any issue of shares in, the Customer, or any other fact, matter or circumstance, the effect of which is to alter the Control of the Customer, from the Control which exists as at the date of this document. It may be direct or indirect and may be as a result of or by means of any trust, agreement, arrangement or understanding whether legally enforceable or not; or
(b) where the Customer has entered into this document in the capacity of trustee of a trust, the Customer ceasing to be the trustee of that trust; or
(c) where the Customer has entered into this document in the capacity of trustee of a trust, a change in the underlying beneficial interests of that trust.
Claim includes any claim, including a notice, demand, debt, account, action, expense, damage, loss, cost, lien, liability, proceeding, litigation (including reasonable legal costs), investigation or judgment of any nature, whether known or unknown.
Commercial Terms mean the commercial terms between INNOV8 and the Customer attached to these Terms and Conditions.
Consumer Guarantee means a consumer guarantee as it applies to supplies made under this agreement, as set out in under Part 3-2, Division 1 of the Australian Consumer Law.
Control means:
(a) in relation to any body corporate (including without limitation, a body corporate in the capacity as trustee of any trust property), the ability of any person to exercise control over the body corporate by virtue of the holding of voting shares in that body corporate or by any other means including, without limitation, the ability to directly or indirectly remove or appoint all or a majority of the directors of the body corporate; and
(b) in relation to an individual, the ability of any person to direct that person to act in accordance with their instructions whether by operation of any law, deed, arrangement or understanding, custom or any other means.
Credit Application means any credit application completed and submitted by the Customer to INNOV8, which has been approved and accepted by INNOV8.
Customer means the customer described in the Credit Application, Commercial Terms, Quote, Invoice or any other document which INNOV8 presents to the Customer.
Deal means to grant options or rights of pre-emption over, to sell, transfer, assign, part with the benefit of, declare a trust over, encumber or otherwise deal with, and includes a Change in Control.
Default Rate means 10% per annum.
Delivery Address means the delivery address described in the Commercial Terms.
Delivery Date means the delivery date described in the Commercial Terms.
Deposit means the amount stated in the Commercial Terms which is payable at the time the Order for Equipment is placed.
Equipment means the equipment described in the Commercial Terms.
Event of Default means an event of default described in clause 18.
Fair Wear and Tear means minor damage, in the reasonable opinion of INNOV8, caused by ordinary day-to-day use of the Equipment.
Force Majeure Event means an act of God, fire, lightning, earthquake, explosions, flood, subsidence, insurrection or civil disorder or military operations or act of terrorism, expropriation, strikes, lock-outs or other industrial disputes of any kind not relating solely to the party affected, and any other event which is not within the reasonable control of the party affected but does not include any act or omission of the other party.
Guarantee Terms means the terms entered into by the Guarantors in favour of INNOV8 attached to these Terms and Conditions.
Guarantors means the directors described as such in the Credit Application.
GST has the meaning given in GST Law.
GST Law has the meaning given in A New Tax System (Goods and Services Tax) Act 1999 (Cth).
INNOV8 means Innov8 Equipment Pty Ltd (ABN 23 615 674 416).
Invoice means an invoice issued by INNOV8 to the Customer following acceptance of a Quote and/or Commercial Terms.
Insolvency Event means the happening of any one or more of the following events:
(a) in relation to a natural person:
(i) that person being unable to pay his or her debts as and when they fall due;
(ii) an application and filing for bankruptcy being made in respect of that person; or
(iii) a receiver, or receiver and manager, trustee for creditors or trustee in bankruptcy or analogous person being appointed over that person’s assets or undertakings or any of them; or
(b) in relation to a body corporate:
(i) that body corporate being unable to pay its debts as and when they fall due;
(ii) a receiver, receiver and manager, administrator or liquidator being appointed over that body corporate’s assets or undertakings or any of them;
(iii) an application for winding up or other process seeking orders which, if granted, would render that body corporate an externally-administered body corporate being filed and not being withdrawn within 20 Business Days;
(iv) that body corporate being or becoming the subject of an order, or a resolution being passed, for the winding up or dissolution of that body corporate; or
(v) that body corporate entering into, or resolving to enter into, a deed of company arrangement or an arrangement, composition or compromise with, or proceedings being commenced to sanction such a deed of company arrangement or arrangement, composition or compromise, other than for the purposes of a bona fide scheme of solvent reconstruction or amalgamation.
Loss means any damage, loss, liability, expense or cost whether direct or indirect, consequential or incidental.
Order means any purchase orders for Equipment submitted by the Customer to INNOV8 by providing INNOV8 with written notice.
Payment Date means the payment date set out in the Commercial Terms.
PPSA means the Personal Property Securities Act 2009 (Cth).
PPSR means the Personal Properties Security Register.
Quote means the tender or quotation for Equipment and/or Services issued by INNOV8 to the Customer and attached to these Terms and Conditions or otherwise as communicated by INNOV8 to the Customer.
Rental Fee means the rental fee set out in the Commercial Terms.
Residual Fee means the residual fee set out in the Commercial Terms.
Security Interest has the meaning given in the PPSA.
Services means the services specified in an Accepted Order.
Sites mean sites specified by the Customer from which it will use and/or operate the Equipment.
Site Procedures means the Approvals, policies and procedures in respect of each Site.
Special Conditions means any special conditions set out in the Commercial Terms.
Taxes means any tax, levy, charge, impost, rates, duty, fee, deduction, compulsory loan or withholding tax which is (or is able to be) assessed, levied, imposed or collected by or payable to any Authority and includes, but is not limited to, any interest, fine, penalty, charge, fee or other amount imposed or made on or in respect of the above.
Term means the rental term set out in the Commercial Terms.
Terms and Conditions means clauses 1 to 21 of these terms and conditions.
1.2 Interpretation
In these Terms and Conditions:
(a) a reference to the singular includes the plural and vice versa;
(b) a reference to a given gender includes all other genders;
(c) other parts of speech and grammatical forms of a word or phrase defined in this deed have a corresponding meaning;
(d) use of the word including and similar expressions are not, nor are they to be interpreted as, words of limitation;
(e) a reference to a person includes a natural person, a company or other entities recognised by law;
(f) a reference to any agreement or document is to that agreement or document (and, where applicable, any of its provisions) as amended, novated, supplemented or replaced from time to time;
(g) a reference to writing includes any mode of reproducing words, figures or symbols in tangible and permanently visible form and includes fax transmission;
(h) all references to parties are to the parties to this agreement;
(i) a reference to a party includes the party’s executors, administrators, successors and permitted assigns;
(j) where any obligation is imposed on, or any benefit takes effect for, two or more persons, the obligation binds or takes effect for the benefit of (as the case may be) those persons jointly and each of them severally;
(k) any word not defined in these Terms and Conditions will be given its meaning set out in other components of this Agreement or, if not otherwise define, its ordinary and natural meaning; and
(l) in the event of inconsistency, the following order of priority should apply to the Agreement:
(i) Special Conditions;
(ii) Commercial Terms;
(iii) Terms and Conditions.
1.3 Headings
The headings are for ease of reference only and do not affect the interpretation of this Agreement.
2 Agreement to supply
2.1 INNOV8 agrees to supply the Equipment to the Customer on the Delivery Date and/or supply the Services to the Customer in accordance with the terms of the Agreement.
2.2 These Terms and Conditions record the terms and conditions on which INNOV8 agrees to supply and deliver Equipment to the Customer and/or supply the Services to the Customer. INNOV8 may at any time vary these terms and conditions without notice.
3 Additional equipment orders
3.1 Subject to this clause 3, the Customer may submit purchase orders for additional Equipment by providing INNOV8 with written notice (each an Order).
3.2 Each Order constitutes an offer by the Customer to purchase the Equipment specified in that Order on the terms of these Terms and Conditions (to the exclusion of any other terms other than those which apply or cannot be excluded by operation of law), unless otherwise expressly agreed in writing.
3.3 INNOV8 may, in its sole discretion:
(a) accept an Order by supplying the Equipment specified in that Order; or
(b) decline an Order (without being obliged to give reason for doing so) by giving notice to that effect to the Customer.
3.4 If INNOV8 accepts an Order, it will issue the Customer with Commercial Terms, specifying the Equipment to be supplied, in substantially the same form as the Commercial Terms attached to this Agreement and/or an Invoice.
3.5 INNOV8 reserves the right to stipulate a minimum order quantity at any time for the Equipment.
4 Change and Cancellation
4.1 Subject to clauses 9.12 and 16.2 neither party may suspend or cancel performance of this Agreement without the consent of the other party.
4.2 The parties agree that:
(a) either party may request a change to any matter related to the Equipment and/or the Services.
(b) any change request must be in writing and must give such details as will enable the other party to fully consider its impact, if accepted, on the other parties’ rights and obligations under this Agreement.
(c) neither party will be obliged to accept any change request made by the other party.
(d) if a change request is accepted, any matter identified in the relevant change request as being affected by that change request shall be deemed to be immediately amended in the manner specified in the change request.
(e) until any change has been effected as specified in this clause, both parties will continue to fully perform this Agreement as if the requested change had not been made. After a change has been effected as specified in this clause, both parties shall continue to fully perform this Agreement as varied only in accordance with that change.
5 Freight and insurance
5.1 Unless otherwise agreed in writing:
(a) INNOV8 will arrange for the freight of the Equipment to the Delivery Address (or the Sites as required) at the Customer’s cost; and
(b) INNOV8 will not arrange insurance of the Equipment during freight; and
(c) the price for the Equipment is exclusive of all freight and other carrier costs and any insurance associated with a delivery must be paid by the Customer on the terms of INNOV8’s invoice and in accordance with clause 9.
6 Delivery
6.1 INNOV8 will deliver the Equipment to the Delivery Address or such other Sites as agreed between the parties.
6.2 INNOV8 will endeavour to deliver the Equipment on the Delivery Date.
6.3 The Delivery Date is an estimate only and INNOV8 accepts no liability to the Customer or to any other person if it is unable to deliver Equipment within an estimated delivery time.
6.4 INNOV8 reserves the right to charge the Customer reasonable storage and/or waiting costs if the Equipment is unable to be delivered, for any reason not caused by INNOV8, to the Customer on the Delivery Date.
7 Services
7.1 Where the Quote, Commercial Terms or Invoice confirms that INNOV8 will conduct the Services, this clause 7 applies.
7.2 Unless credit is granted by INNOV8, before INNOV8 conducts the Services, the Customer must make payment for the Services in full to INNOV8.
7.3 To enable INNOV8 to conduct the Services, the Customer must provide INNOV8 with all specifications in relation to the Services (if any).
7.4 Once the Services have been finalised by INNOV8, the Customer must immediately inspect the Services for their quality.
7.5 The Customer will be deemed to have:
(a) accepted the Services received from INNOV8; and
(b) acknowledged that it is satisfied as to the quality of the Services,
unless it gives INNOV8 written notice setting out the nature of any alleged defects within two (2) Business Days of the Delivery Date.
8 Acceptance of Equipment and/or Services
8.1 On delivery of the Equipment to the Customer, the Customer must immediately inspect the Equipment for its quality and condition.
8.2 Subject to clause 13, the Customer will be deemed to have:
(a) accepted the Equipment received from INNOV8; and
(b) acknowledged that it is satisfied as to the condition and quality of the Equipment,
unless it gives INNOV8 written notice setting out the nature of any defects within 5 Business Days of delivery of the Equipment to the Customer.
8.3 On the carrying out of the Services to the Customer, the Customer must immediately inspect the Services for their quality and condition.
8.4 The Customer will be deemed to have:
(a) accepted the Services received from INNOV8;
(b) acknowledged that it is satisfied as to the condition, quality of the Services; and
(c) assumed full responsibility for the maintenance of the quality and condition of the Services carried out,
unless it gives INNOV8 written notice setting out the nature of any defects within 5 Business Days of the carrying out of the Services.
9 Price and payment
9.1 The price of the Equipment and/or the Services will be as set out in the Commercial Terms, Quote and/or Invoice. The Deposit stated in the Commercial Terms, Quote and/or Invoice must be paid to INNOV8 by way of deposit on the making of any Order for Equipment by the Customer and/or supply of Services to the Customer if ‘deposit’ is selected in the Commercial Terms or specified in the Quote.
9.2 The Deposit payable to INNOV8 pursuant to clause 9.1 is non-refundable.
9.3 Any Services outside of the scope of an Accepted Order will be charged by INNOV8 to the Customer in accordance with INNOV8’s ordinary hourly rates.
9.4 INNOV8 may incur costs for parts and accessories in connection with the provision of the Services. INNOV8 will seek the Customer’s prior approval if the disbursements are not specified in an Accepted Order.
9.5 INNOV8 will invoice the Customer for Equipment supplied and/or Services provided in accordance with these Terms and Conditions prior to dispatch of the Equipment and/or the commencement of the supply of the Services (less payment of the Deposit paid in accordance with clause 9.1).
9.6 Invoices are payable on the terms set out in the Invoice.
9.7 The Customer acknowledges that pre-payment of an Invoice may be required to cover INNOV8’s material and labour costs. No pre-payments are refundable unless agreed in an Accepted Order.
9.8 The price of the Equipment and/or the supply of the Services quoted in the Commercial Terms, Quote and/or Invoice is exclusive of GST. In addition to the price payable for the Equipment and/or for the supply of the Services, where required by law, the Customer must pay to INNOV8, in accordance with a valid tax invoice issued by INNOV8, the GST payable in respect of the supply of the Equipment and/or the supply of the Services.
9.9 Unless otherwise agreed by INNOV8, the price of the Equipment and/or the Services and other costs payable by the Customer to INNOV8 under this Agreement with respect to the supply of Equipment and/or Services will be paid by the Customer by way of direct debit in which case the Customer must provide its nominated account details and sign all documents and do all things necessary to allow for INNOV8 to direct debit all payments and other monies owing from time to time under these Terms and Conditions.
9.10 All payments made under this Agreement must be paid to INNOV8’s Bank Account.
9.11 The Customer must pay all amounts due to INNOV8 (whether under these Terms and Conditions or otherwise):
(a) without set-off, deductions counter-claims or conditions; and
(b) in available cleared funds to the Bank Account.
9.12 If the Customer owes any amount to INNOV8 (whether under these Terms and Conditions or otherwise), INNOV8 may, in its sole discretion and without prejudice to any of its other rights, do one or more of the following:
(a) withhold all supplies of Equipment and/or Services until that amount has been paid in full; or
(b) set-off that amount against any amount owing by INNOV8 to the Customer.
9.13 If an amount due under these Terms and Conditions is paid after the due date the Customer must pay INNOV8, in addition to the overdue amount:
(a) interest at the Default Rate calculated based on a 365-day year from the date of the default until the date the amount (together with all accrued interest) is paid in full; and
(b) all costs and expenses incurred by INNOV8 in collecting the overdue amount.
9.14 The Customer's obligation to pay an amount owing applies notwithstanding any delay in the delivery of the Equipment and/or any delay in the supply of the Services.
9.15 INNOV8 reserves its rights under security of payment legislation.
10 Title and risk
10.1 Risk in the Equipment passes to the Customer upon dispatch of the Equipment from INNOV8’s premises by INNOV8 or its agent or representatives.
10.2 Until INNOV8 has received payment in full for all Equipment and Services supplied by INNOV8 under this Agreement:
(a) title to the Equipment shall remain with INNOV8;
(b) until payment in full is received under this Agreement, the Customer holds the Equipment as bailee for INNOV8; and
(c) the Equipment shall, so far as practicable, be kept separate from other goods of the Customer, so as to be readily identifiable as the property of INNOV8.
10.3 Upon default of the Customer of the due performance or observance of any other obligation under these Terms and Conditions, including an Insolvency Event INNOV8 may by notice in writing to the Customer enter upon the Customer’s premises, the Delivery Address or any Site to remove any of the Equipment to which INNOV8 has retained title and for this purpose the Customer shall afford INNOV8 all reasonable assistance to locate and take possession of the Equipment.
10.4 The Customer acknowledges that by virtue of clause 10.2, INNOV8 has or will have a Security Interest in the Equipment, the proceeds from the sale of the Equipment, the proceeds of any insurance policy for the purposes of the PPSA.
10.5 The Customer also grants INNOV8 a security interest in all of the Customer’s present and after-acquired property and any proceeds until INNOV8 is paid in full under this Agreement.
10.6 The Customer acknowledges that INNOV8 may do anything reasonably necessary, including but not limited to registering its Security Interest on the personal property securities register established under the PPSA in order to perfect this Security Interest and comply with the requirements of the PPSA. The Customer agrees to do all things reasonably necessary to assist INNOV8 to achieve perfection of this Security Interest under the PPSA.
10.7 The Customer and INNOV8 agree that, pursuant to section 115 of the PPSA, the following provisions in the PPSA do not apply in relation to this Security Interest to the extent, if any, mentioned (words in this provision have the same meaning as in the PPSA):
(a) section 117 (obligations secured by interests in personal property and land);
(b) section 118 (enforcing Security Interest in accordance with land law decisions), to the extent that it allows a secured party to give a notice to the grantor;
(c) section 125 (obligation to dispose of or retain collateral);
(d) section 129 (disposal by purchase);
(e) section 130 (notice of disposal), to the extent that it requires the secured party to give a notice to the grantor and other secured parties before disposal;
(f) paragraph 132(3)(d) (contents of statement of account after disposal);
(g) subsection 132(4) (statement of account if no disposal);
(h) section 142 (redemption of collateral); and
(i) section 143 (reinstatement of security agreement).
10.8 The Customer waives its right to receive a verification statement under section 157 of the PPSA.
11 Insurance
11.1 Upon risk in the Equipment passing to the Customer until all monies owing under this Agreement by the Customer are paid to INNOV8, the Customer must procure the following insurance policies (Policies):
(a) public liability coverage up to $20m in any one occurrence; and
(b) equipment replacement coverage up to the replacement value of the Equipment.
11.2 The Policies must list INNOV8 as an interested party and the Customer must provide INNOV8 with a valid certificate of currency on or before the Delivery Date.
11.3 The Customer must not do anything that may provide grounds for an insurer to refuse payment of a claim under the Policies or prejudice INNOV8’s rights under the Policies.
11.4 The Customer irrevocably authorised INNOV8:
(a) to receive all money payable in relation to the insurance referred to in this clause 11 or payable by any person in respect of damage to, or loss of, the Equipment. For this purpose, the Customer appoints INNOV8 as its attorney to make, recover and/or compromise in the Customer’s name any claim under that insurance or against any person; and
(b) to appropriate any insurance money or other amount received at INNOV8’s option, towards repair and/or replacement of the Equipment or towards any money payable by the Customer under this Agreement.
12 Customer obligations
12.1 The Customer warrants and agrees that at the date of this Agreement and until all monies owing under this Agreement by the Customer are paid to INNOV8:
(a) the Customer and each member of the Customer’s personnel has the requisite skill, ability, expertise, experience, training and resources to operate the Equipment and perform the Customer’s obligations under this Agreement;
(b) the Equipment will only be stored and operated at the Delivery Address or Sites approved by and notified in writing to INNOV8;
(c) the Customer must keep INNOV8 fully informed of the location of the Equipment at all times;
(d) the Equipment will be secured and adequately protected against theft and vandalism;
(e) the Equipment will be operated with skill and due care;
(f) the Customer will maintain the Equipment in good repair and working order using only parts and labour approved by INNOV8, at the Customer’s expense unless clause 15 applies;
(g) the Customer has the right, power, authority and entitlement to execute this Agreement and perform the Customer’s obligations under this Agreement;
(h) the Customer has obtained and will maintain and comply with all Approvals in connection with the Equipment;
(i) the Customer will comply with all laws and Site Procedures in connection with the Equipment;
(j) the Customer is not subject to any actual, threatened or pending investigation, action, suit or proceedings by or before any Authority;
(k) any information provided by the Customer to INNOV8 prior to the execution of this Agreement was, and remains at the date of the execution of this Agreement, true and correct; and
(l) the Customer is familiar with the risks associated with the Equipment.
12.2 The Customer will provide immediate written notice to INNOV8 if the Customer becomes aware that a representation or warranty given by the Customer under this clause 12 has become untrue or misleading.
12.3 To enable INNOV8 to perform the Services the Customer must, at the Customer's cost, promptly:
(a) provide INNOV8 with all specifications, manuals and logbooks which are to be used in connection with the Services;
(b) provide INNOV8 with reasonable access to the Delivery Address and the Customer's facilities and personnel familiar with the project as INNOV8 may reasonably require from time to time (if required).
12.4 The Customer warrants to INNOV8 that it:
(a) has full right, power and authority to enter into this Agreement
(b) will comply with all laws in connection with the Services and its project;
(c) has all necessary Approvals in connection with the Services and its project unless such Approvals are expressly included in the Quote.
12.5 If INNOV8 suspends work due to the Customer's failure to comply with clauses 12.3 or 12.4, INNOV8 may increase the contract price to cover any extra expense or cost incurred (including a proportional adjustment for fixed costs and profit).
12.6 The Customer acknowledges that INNOV8 has entered into this Agreement with the Customer in reliance on the representations and warranties set out in this clause 12.
13 Warranties and Liability
13.1 The Equipment and/or the Services may come with guarantees which cannot be excluded pursuant to the Australian Consumer Law.
13.2 INNOV8 makes no express of implied warranties under these Terms and Conditions in relation to the Equipment and/or the Services.
13.3 To the maximum extent permitted by law, INNOV8 will not be liable for indirect, consequential, special, punitive or exemplary damages including but not limited to loss of profits, loss of business, loss by reason of delay, whether arising in negligence, from breach of contract or otherwise, in connection with these Terms and Conditions or the Equipment or the Services.
13.4 To the maximum extent permitted by law, INNOV8 limits its liability for breach of these Terms and Conditions in relation to any particular supply of Equipment, to the price of the Equipment and/or in relation to any particular supply of the Services, to the price of the Services.
13.5 To the maximum extent permitted under the Australian Consumer Law, INNOV8’s liability for breach of a Consumer Guarantee, if the Consumer Guarantees apply at law, is limited to any one or more of the following, at INNOV8’s election:
(a) the replacement of the Equipment and/or the Services or the supply of equivalent Equipment and/or Services;
(b) the repair of the Equipment;
(c) the payment of the cost of replacing the Equipment and/or the Services or of acquiring equivalent Equipment and/or Services; or
(d) the payment of the cost of having the Equipment and/or the Services repaired.
13.6 INNOV8’s liability under this Agreement is reduced to the extent that the Customer contributed to any Loss or Claim.
13.7 The Customer is solely responsible for identifying and notifying INNOV8 of the presence of any asbestos or other hazardous or toxic materials located at the Customer’s premises/the Delivery Address prior to the Services being supplied. The Customer is solely responsible for ensuring it has all necessary Approvals and authorisations at its cost in relation to the handling, treatment and removal of asbestos or other hazardous or toxic materials by INNOV8. For the avoidance of doubt, INNOV8 accepts no liability whatsoever for any Claim or Loss suffered by any person howsoever arising in connection with the handling, treatment, removal, disruption to, use, disposal, exposure to, identification or management of any asbestos or other hazardous or toxic materials unless INNOV8 has expressly agreed in the Quote to accept liability for such matters as part of the provision of the Services.
13.8 This clause 13 continues to bind the parties after this Agreement is terminated.
14 Release and indemnity
14.1 The Customer agrees to use and possess any Equipment at its own risk. The Customer agrees that INNOV8 bears no responsibility or liability for any Loss to any of the Customer’s property (including the Equipment).
14.2 The Customer agrees to use and possess and benefit from any Services at its own risk.
14.3 To the fullest extent permitted by law the Customer releases and discharges INNOV8 and its agents and employees from:
(a) all Claims and demands on INNOV8; and
(b) any Loss whatsoever and whenever caused to the Customer or its agents or employees or any third party whether by way of death of, or injury to, any person of any nature or kind, accident or damage to property, delay, financial Loss or otherwise,
arising directly or indirectly from or incidental to a breakdown of, or defect in any Equipment and/or the Services or any accident to or involving any Equipment and/or Services or their use, operation, repair, maintenance or storage (whether occasioned by INNOV8’s negligence or otherwise) or which may otherwise be suffered or sustained in, upon or near any Equipment and/or any Services.
14.4 The Customer indemnifies and holds INNOV8 harmless to the full extent permitted by law for any Loss whatsoever arising in connection with the supply of and operation of the Equipment by the Customer, including any breach of this Agreement.
15 Repair and replacement
15.1 In addition to any other rights of entry granted under this Agreement, the Customer grants INNOV8 the right, and will use its best endeavours to ensure that others grant INNOV8 the right, at all times until all monies owing under this Agreement by the Customer are paid to INNOV8 to:
(a) inspect the state of repair of the Equipment;
(b) carry out such tests on the Equipment as may seem necessary to INNOV8;
(c) observe the use of the Equipment;
(d) inspect any maintenance records in respect of the Equipment; and
(e) do any act, matter or thing which may be required to be done to give proper effect to the terms of this Agreement or to protect INNOV8’s rights in the Equipment.
15.2 Subject to anything to the contrary in clause 7, in order to protect its rights in the Equipment INNOV8 may, at its discretion, at all times prior to title in the Equipment passing to the Customer:
(a) serve a notice in writing on the Customer of any defect or deficiency in the Equipment or its operation or both requiring repair or replacement;
(b) if INNOV8 decides repairs are required to the Equipment it may:
(i) enter upon premises with workmen (if necessary) and all necessary materials for the purpose of carrying out those repairs; or
(ii) replace the Equipment with equivalent Equipment.
15.3 Where damage to or unsatisfactory maintenance of the Equipment requires INNOV8 to incur costs and expense repairing or replacing the Equipment, the cost of all repairs and replacements (if any) of the Equipment will be borne by the Customer.
16 Default and termination
16.1 Each of the following events is an Event of Default, namely:
(a) if the Customer fails to pay any amount due and payable under this agreement on the due date for payment and such failure continues for more than 5 Business Days;
(b) the Customer fails to perform or observe any of the covenants or provisions of this Agreement and (if capable of remedy) such default continues for more than 10 Business Days after notice from INNOV8 requiring the Customer remedy the breach;
(c) the Customer sells or closes its Business or relocates the Equipment without written notice to INNOV8;
(d) the Customer suffers an Insolvency Event;
(e) where the Customer is a partnership it is dissolved, threatens or resolves to dissolve or is in jeopardy of dissolving; or
(f) the Customer being a natural person dies.
16.2 If an Event of Default occurs INNOV8 may at its option:
(a) suspend or withhold supply under this Agreement;
(b) by proceeding by appropriate court action, either at law or in equity, enforce performance by of the applicable terms and provisions of this Agreement or recover damages for the breach concerned; and / or
(c) terminate this Agreement and, the Customer’s right to possession of the Equipment by notice in writing to the Customer. Upon service of such notice all of the Customer’s rights to possess or use the Equipment will terminate and INNOV8 may, directly or by its agent, take possession of the Equipment. Any damages reasonably occasioned by INNOV8 taking possession are expressly waived by the Customer.
16.3 Where INNOV8 considers that an Event of Default constitutes a breach of a fundamental term of this Agreement, in addition to any other rights, INNOV8 may give written notice to the Customer confirming that the Agreement has been repudiated by the Customer and INNOV8 may pursue all remedies available to it in connection with such repudiation.
16.4 Without prejudice to INNOV8’s right to pursue the Customer for Loss arising from a breach of this Agreement, upon the expiry of this Agreement or early termination under this clause 16 the Customer must immediately pay INNOV8 all amounts owing under this Agreement.
17 Rent to Buy
17.1 Where the Commercial Terms indicate that a Rent to Buy applies in respect of the Equipment this clause 17 applies.
17.2 INNOV8 agrees to lease the Equipment to the Customer for the Rental Fee and the Residual Fee and during the Term specified in the Commercial Terms, subject to the terms of this Agreement.
17.3 The Rental Fee is to be paid by equal monthly instalments on each Payment Date during the Term. The Rental Fee is to be paid by paid by the Customer by way of direct debit in which case the Customer must provide its nominated account details and sign all documents and do all things necessary to allow for INNOV8 to direct debit all payments and other monies owing from time to time under these Terms and Conditions.
17.4 The Customer’s obligation to pay the Rental Fee, the Residual Fee and other amounts due under this Agreement is unconditional for the Term, even if the Equipment is damaged or destroyed, is defective or breaks down or any other thing happens to the Equipment.
17.5 If the Equipment is lost, stolen or totally or substantially destroyed, INNOV8 may terminate this Agreement by written notice to the Customer. Within 7 days of receipt of that written notice, the Customer must pay INNOV8 the amount which would have been payable, being the entire Rental Fee for the Term and the Residual Fee, if the Customer had failed to comply with the provisions of this Agreement.
17.6 INNOV8 shall retain ownership in the Equipment at all times during the Term and to better protect INNOV8’s ownership the Customer grants INNOV8 a Security Interest over the Equipment and clauses 10.3 to 10.8 inclusive apply in respect of that Security Interest.
17.7 The Customer agrees that any replacement of, alteration or addition to any accessories, tools or other goods supplied with, installed in, or attached to, the Equipment (including, without limitation, any tyres) during the Term will become INNOV8’s property and will be considered part of the Equipment for the purposes of this Agreement. The Customer must ensure that they are free of any Security Interest (other than a Security Interest in INNOV8’s favour) before they are installed on or attached to the Equipment.
17.8 The Customer must keep the Equipment in its control, ensure that the Equipment is used only in the Customer’s general business operations and only for the purposes for which they were designed, by qualified personnel complying at all times with all laws relating to the Equipment and its use and with all instructions and recommendations issued by INNOV8 or the manufacturer of the Equipment and, if the law requires the Equipment to be registered, the Customer must attend to this and ensure they remain registered at all times.
17.9 The Customer must at the Customer’s own cost ensure the Equipment is maintained by qualified personnel in accordance with all instructions and recommendations issued by INNOV8 or the manufacturer of the Equipment and, if necessary, repaired by qualified personnel, so the Equipment remains at all times in good working order and condition and subject to any applicable warranty.
17.10 The Customer irrevocably authorise and must use the Customer’s best endeavours to have others authorise, us to enter upon any premises upon reasonable notice where we reasonably believe the Equipment is located to examine the Equipment’s state of repair, condition and operation.
17.11 The Customer agrees and acknowledges that it shall be liable for any decline in the value of the Equipment as a result of the Customer’s breach of this Agreement during the Term.
17.12 Upon early termination of this Agreement, the Customer must immediately deliver the Equipment, at its expense to INNOV8.
17.13 Prior to the redelivery in clause 17.12, the Customer must restore the Equipment so that the Equipment is in the same condition as it was when it was supplied, subject to Fair Wear and Tear.
17.14 If the Equipment is not restored pursuant to clause 17.13, INNOV8 may retake possession of the Equipment and the Customer must reimburse INNOV8 for the costs of restoring the Equipment.
17.15 If the Equipment is not returned to INNOV8, the Customer must reimburse INNOV8 for the costs of replacing the Equipment and any loss of rental fees and/or residual fees.
17.16 The parties agree that INNOV8’s rights to repossess the Equipment pursuant to this clause 17.17 ceases when the Customer has paid all monies owing to INNOV8 under this Agreement. Upon the expiration of the Term, the Customer agrees to buy and INNOV8 agrees to sell the Equipment for the Residual Fee on an “as is where is” basis and on the terms and conditions of this Agreement.
17.17 The Customer acknowledges that it has had the use of the Equipment during the Term and the time of supply for the Consumer Guarantees is at the time the Equipment was initially supplied to the Customer at the time of the lease commencing or the Delivery Date, whichever is earlier.
17.18 For the avoidance of doubt, the Guarantee Terms apply in respect of the Rental Fee, the Residual Fee and any other monies owing to INNOV8 under this Agreement.
18 Force Majeure
18.1 INNOV8 will not be liable for any loss incurred as a result of delay or failure to observe any of these terms and conditions due to an event of Force Majeure. INNOV8’s obligations under these terms and conditions will be suspended and will resume as soon as the cause of the Force Majeure has ceased to have effect.
19 Privacy
19.1 INNOV8 may provide details of this Agreement to a credit reporting agency for the purpose of:
(a) obtaining a credit report; and
(b) allowing the credit agency to maintain a file,
in respect of the Customer and/or the Guarantors.
19.2 INNOV8 will endeavor to take reasonable commercial steps to protect all personal information provided by the Customer in accordance with the Australian Privacy Principles of the Privacy Act 1998 (Cth).
20 Third Party Rights
20.1 The parties acknowledge and agree that some or all of the Equipment may be owned by a third party or under finance from a third party (Third Party), giving that Third Party an interest in the relevant Equipment (Third Party Rights).
20.2 Where a Third Party Interest is valid and subsisting, the Customer acknowledges that:
(a) a person other than INNOV8 may be the legal owner of the Equipment;
(b) the Third Party may enforce the terms of this Agreement, as if it were INNOV8;
(c) the Third Party shall at all times be entitled to register its interest on the PPSR, if applicable; and
(d) nothing in this Agreement shall limit, reduce, vary or otherwise qualify the rights of the Third Party against INNOV8 or the Equipment.
21 General
21.1 This Agreement constitutes the entire understanding between the parties and supersedes all prior agreements, understandings and communications, whether written or oral.
21.2 The Agreement operates as a ‘standing agreement’ and each Quote, Commercial Terms or Invoice issued shall constitute a separate contract for supply of the Equipment between the parties and INNOV8 may enforce its rights under this Agreement against a Quote, Commercial Terms or Invoice , multiple Quotes, Commercial Terms or Invoices or the Agreement as a whole.
21.3 Except as required by law, the Customer must not disclose to any person without INNOV8’s prior written consent the existence of, or details in, the Agreement or any other information INNOV8 gives the Customer.
21.4 Unless the parties enter into a new agreement, these Terms and Conditions will govern the future supply of Equipment to the Customer and each order constitutes a separate contract for the sale of the Equipment and the breach of any one such contract will be deemed a breach of the Agreement as a whole and may be enforced jointly or severally at INNOV8’s discretion.
21.5 The Customer may not, without the prior written consent of INNOV8, assign, transfer or grant any Security Interest over, its right, title and interest in or to the Agreement to any person (or agree or purport to do so).
21.6 INNOV8 may, without the prior written consent of the Customer, assign, transfer or grant any Security Interest over, its right, title and interest in or to the Agreement to any person (or agree or purport to do so).
21.7 If any provision of the Agreement is illegal or unenforceable in any relevant jurisdiction, it must be enforced to the maximum extent possible, and if unenforceable may be severed for the purposes of that jurisdiction, without affecting its enforceability in any other jurisdiction or the enforceability of any other part of these terms and conditions.
21.8 All waivers must be in writing. A single or partial exercise or waiver by a party of a right relating to these terms and conditions does not prevent any other exercise of that right or the exercise of any other right.
21.9 Except where this Agreement expressly states otherwise, it does not create a relationship of employment, trust, agency or partnership between the parties.
21.10 Time is of the essence in respect of all amounts payable pursuant to these Terms and Conditions.
21.11 Clauses 1, 4, 5, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 20 and any indemnities survive termination or expiration of this Agreement.
21.12 The Agreement is governed by and is to be construed in accordance with the laws applicable in New South Wales, Australia.
Guarantee Terms
As consideration for INNOV8 supplying the Equipment to the Customer under the Agreement, the Guarantor(s) (I/We), as joint and several guarantor(s)) agree to be personally bound to the following:
The Guarantor(s) hereby:
1 Jointly and severally guarantees to INNOV8 the due and punctual payment of all money presently owing or any money that may be owing in the future by the Customer, in respect of the cost of Equipment supplied to the Customer by INNOV8 and any other sums payable by the Customer to INNOV8 (hereinafter collectively called "Guaranteed Money").
2 Jointly and severally agrees to indemnify and keep INNOV8 indemnified from and against all Loss and Claims whatsoever in relation to the supply of Equipment and operation of the Equipment by the Customer.
3 Covenants, acknowledges and agrees as follows:
(a) The provisions of this guarantee shall continue until payment to INNOV8 of the whole of the Guaranteed Money as cleared funds.
(b) The Guarantor is liable hereunder as a principal and as a primary debtor for the payment of the Guaranteed Money to INNOV8.
(c) This guarantee is valid and enforceable against the Guarantor and the liability of the Guarantor continues and may be enforced by INNOV8 notwithstanding:
(i) that no steps or proceedings have been taken against the Customer or any other Guarantor;
(ii) any indulgence or extension of time granted by INNOV8 to the Customer or any other Guarantor;
(iii) the death or bankruptcy or winding up of the Customer or any other Guarantor.
(d) The Guarantor will not compete with INNOV8 for any dividend or distribution in the event of the Customer being declared bankrupt, going into liquidation or being wound up or entering any deed or scheme of arrangement or assignment or composition in respect of its affairs or its assets and liabilities.
4 The Guarantor hereby acknowledges having given its consent to INNOV8 to obtain from a credit reporting agency consumer credit report containing information about it for the purpose of INNOV8 assessing whether to accept the Guarantor as a guarantor for credit granted to the Customer.
5 In consideration of INNOV8 providing Equipment to the Customer, I/We hereby grant INNOV8 an equitable charge over all of my/our present and after acquired property, including but not limited to a caveatable charge over all real estate, as security for the guarantee granted by Me/Us.
6 The term "INNOV8" includes its successors, and assigns and any related entity of INNOV8 involved in the provision of goods and services to the Customer.
7 The terms "Customer" and "Guarantor" include their respective executors, administrators and successors.
