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Terms and Conditions of Sale
These terms and conditions of sale do not apply to the hire of equipment and services pertaining to hire. Please refer to our Terms and Conditions of Hire.
1. Definitions
“Supplier” means Cabrini Health trading as ALTER/Mobile Repairs (ABN: 33 370 684 005).
“Associated Companies ” means Mobile Repairs Pty. Ltd. and any of its subsidiaries or trading businesses.
“Customer” refers to the person, firm, organisation, partnership, corporation or other entity purchasing the goods from the Owner, as identified in this terms and conditions of sale.
“Goods” means goods and services provided by the supplier to the customer.
“GST“ means the Goods and Services tax imposed by government whether at the point of supply or at any other specified occurrence..
“Services ” means services provided by the supplier to the customer.
2. Title to Goods
2.1 The Customer acknowledges that the supplier retains title of goods (even if the Customer, being a company goes into liquidation or administration, or has a Receiver or Manager appointed or, being an individual, becomes bankrupt or enters into an arrangement with their creditors) until cleared payment of any outstanding amount associated with the goods has been received in full by the supplier.
2.2 The Customer will not be entitled to offer, sell, assign, sub-let, mortgage, pledge or otherwise deal with the goods in any way which is inconsistent with the rights of the supplier subject to section 2.1.
3. Contract of Sale
3.1 These terms and conditions of sale do not apply to the hire of equipment and services pertaining to hire. Please refer to our Terms and Conditions of Hire.
3.2 These terms and conditions apply exclusively to every contract for the sale of goods and/or services by the supplier to the customer and cannot be substituted by any other conditions including the customer’s terms and conditions unless accepted in writing by the supplier or as specified in section 3.1.
3.3 The supplier may amend or vary these conditions will be notified to the customer. Updated terms and condition will be available to view online. Any variation or amendments will be made to orders placed by the customer after the date of notification as listed online.
3.4 Any written quotation provided by the supplier to the customer is deemed to be an invitation to the customer to place an order based on that quotation. Quotations are valid for 30 days from the date specified on the quotation unless otherwise specified on the quote.
4. Payments / Tax and Government Charges / Refunds / Late Payment
4.1 The Customer is required to pay all fees, charges and costs that may become due and payable under the contract of sale before the expiry of the customer’s payment terms as outlined on the customer invoice.
4.2 The Customer acknowledges that the Owner may impose a charge for accepting payments by credit card.
4.3 The Customer will agree to pay any stamp/hire duty, GST and all other applicable taxes, duties, levies, penalties and any other government charges imposed on the invoice as determined by the supplier.
4.4 No claim for refund and credit will be considered unless notification is received within 7 days from delivery of goods and/or services.
4.5 Subject to clause 4.4 and the supplier’s Warranty Statement, the supplier reserves the right to inspect the goods and/or services and investigate the complaint before any further decision is made with regard to any claim. The supplier may at its option replace the goods or provide service or refund the price of the goods and/or service.
4.6 If the customer defaults in payment by the due date of any amount payable to the supplier, the supplier may at its option, place the customer on ‘Stop Credit’. If a customer is placed on ‘Stop Credit’, any further orders placed by the customer will be deemed to be payment before delivery of goods and/or services. Once a default payment has been rectified, the customer may then apply in writing to the supplier to be removed from stop credit.
4.7 The supplier, at its option, may forward any amount not recovered from the customer by the due date payable under the contract to a recovery service. In such case, the Customer will be liable to indemnify the supplier for all expenses incurred by the supplier in recovering any amounts which the Customer fails to pay by the payment due date (including any commission payable to any commercial or mercantile agents and legal costs).
4.8 The contract of sale is governed by the laws of the State of Victoria in which the sales contract is entered into by the parties and each party submits to the exclusive jurisdiction of the courts the State of Victoria. The Customer will not object to the supplier using the jurisdiction of Victoria for the recovery of any outstanding amount.
4.9 A Re-stocking fee of 20% of purchase price will apply to returned equipment.
5 Delivery
5.1If the Customer requires the supplier to deliver, collect or install the goods, the Customer will be liable for the cost of delivery, collection or installation. The supplier will not be responsible for any delays in delivery or installation or failure to deliver due to causes beyond its control including but not limited to acts of God, war, terrorism, mobilisation, civil commotion, riots, embargoes, orders or regulations or governments of any relevant jurisdiction, fires, floods, strikes, lockouts or other labour difficulties, shortages of or inability to obtain shipping space or land transportation or failure of the customer to provide sufficient space, time or amenities.
5.2Any period or date of delivery specified on any invoice or contract of sale is intended as an estimate only and is not a contractual commitment.
5.3The supplier will not be liable for any loss or damages suffered by the customer or any third party for failure to meet any estimated date.
6 Liability:
6.1 Except as specifically set out in these conditions, or contained in the warranty statement, any tern, condition or warranty in respect of the quality, merchantability, fitness for purpose, condition, description, assembly, manufacture, design or performance of the goods
or services, whether implied by statute, common law, trade usage, custom or otherwise, is expressly excluded.
6.2 Replacement or repair of the goods or reprovision of the services will be the limitation of the suppliers liability arising under or in connection with the description, quality, condition, performance, assembly, manufacture, design, merchantability or fitness for purpose of the goods or services or alternatively the sale, use of, storage or any other dealings with the goods or service by the Customer or any third party.
6.3 The supplier will not be liable for any indirect or consequential losses or expenses suffered by the Customer or any third party, howsoever caused, including but not limited to loss of turnover, profits, business or goodwill or any liability to any other party.
6.4 The supplier will not be liable for any loss or damage suffered by the Customer where the supplier has tailed to meet any delivery date or cancels or suspends the supply of goods or services.
6.5 Nothing in these Conditions is to be interpreted as excluding, restricting or modifying or having the effect of excluding, restricting or modifying the application of any State or Federal legislation applicable to the sale of goods or the provision of services which cannot be excluded, restricted or modified.
7 Changes to Product Specification
7.1The supplier reserves the right to alter or substitute the goods, including goods on order, if the alteration or substitution can be done without changing the product specifications already agreed upon.
7.2 The supplier is not responsible for any misunderstanding of information contained in any catalogues and other written material supplied by the supplier.
7.3 The Customer is responsible and liable for the specific applications to which it puts the specific goods supplied by the supplier. The supplier will not be responsible for any goods manufactured by the Customer which include components supplied by the supplier.
7.4 The Customer acknowledges that it is responsible for obtaining any national or international approvals which may be necessary in relation to the products it may sell, distribute or manufacture which include components supplied by the supplier
8 Intellectual Property
8.1 The supplier owns or is the licensee of all copyrights, trademarks, patents or design rights or confidential information ('Intellectual Property') in or related to any of its goods or services.
8.2The Customer must not claim any right title or interest in the intellectual property or use or disclose any of the Intellectual Property other than necessary for the use of the goods or services.
8.3 The Customer must not copy the goods nor arrange for any third party to copy them.
8.4 If the Customer provides, on sells or licenses the use of the goods or services, it most ensure the recipient is aware of the suppliers rights as outlined in clause 8.1and complies with clause 8.2 by written agreement. Further the Customer must ensure that any recipient is bound by similar terms as this clause 8.4.
9 Acknowledgements
The Customer acknowledges and agrees that:
(a) it has not relied on any service involving skill and judgment, or on any advice, recommendation, information or assistance provided by the supplier in relation to the goods or services or their use or application;
(b) it has the sole responsibility of satisfying itself that the goods are suitable for the customer's use or any contemplated use by the customer, whether or not such use is known by the supplier;
(c) any description of the goods provided in marketing materials, a quotation or invoice is given by way of identification only and does not constitute a contract of sale by description;
(d) it assumes all responsibility for conformance of the goods with all laws, rules, regulations and ordinances of any governmental or quasi-governmental agency applicable to the use or operation of the goods;
(e) it is responsible for undertaking all relevant training and safety precautions in relation to the use or operation of the goods;
10 Cancellation of Orders
10.1 If, through circumstances beyond the control of the supplier, goods on order or services are unable to be supplied, then the supplier may at its opinion, cancel the Customer's order (even if it has already been accepted/ by notice in writing to the Customer).
10.2 The supplier will be under no liability to the Customer or any third party for any damages or losses, director indirect, resulting from such cancellation.
10.3 No purported cancellation or suspension of an order or any part thereof by the Customer is binding on the supplier after that order has been accepted by the supplier.
11Change of Ownership
11.1 The Customer agrees to notify the supplier in writing of any change of ownership of the Customer or business within 7 days of such change and hereby indemnifies the supplier against any loss or damage incurred by the supplier as a result of the Customer's failure to notify the supplier of such change.
12 Privacy Statement
12.1 The supplier is bound by the Privacy Act 1988 and takes steps to ensure that personal information obtained in connection with the Customer will be appropriately collected, stored, used, disclosed and Transferred in accordance with the National Privacy Principles ("NPP's"). Such information may be accessed by request to the supplier in accordance with the Privacy Act.
12.2 The supplier and its Associated Companies' employees and agents may have access to personal information collected pursuant to any agreement between the supplier and the Customer and held by supplier, in accordance with the NPP's.
12.3 The supplier requires that the Customer comply with the NPP's in connection with any personal information supplied to it by the supplier in connection with any agreement between the Customer and the supplier.
13 General
13.1 If the supplier fails to enforce any terms or to exercise its rights under these Conditions at any time, the supplier has not waived those rights.
13.2 If any provision of these Conditions is held to be invalid or unenforceable for any reason, the remaining previsions shall remain in full force and effect and the parties shall adjust their respective rights and obligations in accordance with the spirit and intent of the parties as shown by these Conditions.
13.3 These Conditions will be governed by the laws of Victoria and the parties hereby submit to the exclusive jurisdiction of the Victorian Courts and the Federal Court of Australia (Victoria Registry).
These terms and condition are subject to Victorian legislation and Parliamentary Documents and are subject to the Victorian Occupational Health and Safety Act 1985.
1. Definitions
“Owner” of Plant is Cabrini Health trading as Mobile Repairs (ABN: 33 370 684 005).
“Customer” refers to the person, firm, organisation, partnership, corporation or other entity hiring Plant from the Owner, as identified in the Hire Agreement.
“Plant” means all equipment including tools, accessories and parts supplied to the Customer.
“Environmental Laws” means any statute, policy directions or regulations made or issued by a regulatory body or government body regulating or otherwise relating to the environment including without limitation the use or protection of the environment.
“Hire Agreement” means the agreement between the Owner and Customer for the hire of Plant which includes:
(a) any Credit Application;
(b) these Terms and Conditions of Hire, and
(c) any Hire Agreement provided to the Customer by the Owner, whether signed or not.
(d) any invoice provided to the customer for the hire of plant.
2. Title to Plant
2.1 The Customer acknowledges that in all circumstances the Owner retains title to the Plant (even if the Customer, being a company goes into liquidation or administration, or has a Receiver or Manager appointed or, being an individual, becomes bankrupt or enters into an arrangement with their creditors) and will not be deemed to be a fixture, not withstanding the strict legal position determined by a court of law. The rights of the Customer to use the Plant are as a bailee only.
2.2 The Customer will not be entitled to offer, sell, assign, sub-let, mortgage, pledge or otherwise deal with the Plant in any way which is inconsistent with the rights of the Owner as owner of the Plant.
3. Hire Period
3.1 Subject to clause 3.3, the period of hire commences when the Customer takes possession of the Plant or when the Owner delivers the Plant in accordance with the Customer's instructions and the period of hire ends when the Plant is back in the possession of the Owner (in total, the “Hire Period”). The Hire Period includes weekends and public holidays and is irrespective of the time the Plant is being used.
3.2 The Customer is to be charged for the Hire Period and the Customer is entitled to use the Plant for the Hire Period. Any variation to the Hire Period must be agreed by the Owner.
3.3 Should the Owner agree with the Customer that the Owner will deliver and collect the Plant, hire charges will commence from the time the Plant leaves the Owner’s premises and continue until the Plant has been returned to the Owner or has been recovered by the Owner during normal business hours. In the event of insufficient notice being given or due to the fault of the Customer the Plant cannot be recovered at the agreed time of collection, the Customer may be incur further collection costs to recover the Plant at a later time at the Owner’s absolute discretion. The Hire Period on the Hire Agreement will not be deemed notice to the Owner that the Plant is available for collection. Where the Owner agrees to collect the Plant the Customer remains responsible for theft, loss or damage to the Plant until the Plant is collected by the Owner.
3.4 The Hire Agreement will specify the type of rate which will apply. Plant hire is charged at a minimum of 2 weeks hire cost.
3.5 The Owner reserves the right to charge a minimum period of hire for certain types of Plant. The minimum will be at the discretion of the Owner.
4. Hire Charges and Other Charges
4.1 Hire: Subject to clause 4.8, the Customer will pay the Owner the hire charges set out in the Hire Agreement. The Customer is not entitled to any discount or rebate if the Plant is not used by the Customer for the entire Hire Period. The owner may set off any credit owed to the customer against any amount owing by the customer to the owner.
4.2 Other Services: The Owner will, if requested by the Customer, and only if personnel are available, attend the site and instruct the Customer in the operation of the Plant. The Customer will in addition to the hire charges pay the Owner for such services. Any other additional services provided to the Customer, will be paid for by the Customer at rates agreed with the Owner.
4.3 Consumables & Materials: The Customer will be liable for charges made for consumables and materials provided by the Owner that are not covered as part of the standard Plant.
4.4 Tax and Government Charges: The Customer will be liable for stamp/hire duty, GST and all other applicable taxes, duties, levies, penalties and any other government charges imposed on the Hire Agreement or in respect of the Hire Period.
Where the Customer claims exemption from duty or tax the Customer must furnish appropriate exemption certificates to the Owner.
4.5 Credit Card Payments: The Customer acknowledges that the Owner may impose a charge for accepting payments by credit card.
4.6 Delivery: If the Customer requires the Owner to deliver, collect or install the Plant, the Customer will be liable for the cost of delivery, collection or installation. The Owner will not be responsible for any delays in delivery or installation or failure to deliver due to causes beyond its control including but not limited to acts of God, war, terrorism, mobilisation, civil commotion, riots, embargoes, orders or regulations or governments of any relevant jurisdiction, fires, floods, strikes, lockouts or other labour difficulties, shortages of or inability to obtain shipping space or land transportation or failure of the customer to provide sufficient space, time or amenities.
4.7 Late Return of Equipment: If the Customer returns the Plant to the Owner’s premises after the end of the Hire Period, the Customer will be charged a minimum of an additional weeks hire or an additional hire fee, depending upon the time of return. The Customer will remain liable to be charged for the Plant until it is returned to the Owner or has been recovered by the Owner.
4.8 Early Return of Equipment: If the Customer wants to return the Plant before the end of the Hire Period, the Customer will remain liable for all hire and other charges payable to the Owner for the entire Hire Period. The Owner may, at its absolute discretion, accept return of the Plant, and if it does so, may:
(a) attempt to re-hire the Plant, in which case the Customer will be liable for those hire and other charges payable up until the date of the commencement of the re-hire or until the end of the Hire Period, whichever is earlier, and
(b) revise the hire charges payable by the Customer from the start of the Hire Period to account for the reduction to the Hire Period.
4.9 Payment Due Date: The Customer is required to pay all fees, charges and costs that may become due and payable under the Hire Agreement before the expiry of the customers payment terms as outlined in the hire agreement.
4.10 Late Payment: If a Customer does not pay the amount of the Hire Agreement invoice before the expiry of the customers payment terms, a late payment fee may be imposed at the rate of no greater than 10% of the outstanding amount per week, compounding monthly. In addition, without limiting clause 8.4, the Customer will be liable to indemnify the Owner for all expenses incurred by the Owner in recovering any amounts which the Customer fails to pay by the payment due date (including any commission payable to any commercial or mercantile agents and legal costs).
5. Customer's Hire Obligations
5.1 Possession and Use by Customer: The Hire Agreement is personal to the Customer and the Customer will not allow nor authorise any other person or entity to use, re-hire or have possession of the Plant at any time during the Hire Period without written consent from the owner.
5.2 Suitability: The Customer agrees that before accepting the Plant it has satisfied itself as to the suitability, condition and fitness for purpose of the Plant. Subject to clause 8.2, the Owner gives no warranty that the plant is suitable for the Customer’s purpose.
5.3 Operation of Equipment: The Customer warrants that at all times it will:
(a) operate the Plant safely, strictly in accordance with all laws, only for its intended use and in accordance with the manufacturer's instructions;
(b) ensure persons operating or erecting the Plant are suitably instructed / trained in its safe and proper use and where necessary hold a current Certificate of Competency and be licensed to use it;
(c) return the Plant to the Owner in the same good and clean condition it was in when the Customer received it, ordinary fair wear and tear excluded. If the Customer fails to clean the Plant, the Owner will charge the cleaning cost to the Customer;
(d) display, maintain all safety signage and instructions (as required by law), and ensure that all instructions and signage are observed by operators of the Plant;
(e) ensure all persons operating the Plant wear suitable clothing and protective equipment as required or recommended by the manufacturer or by the Owner;
(f) ensure that no persons operating the Plant are under the influence of drugs or alcohol or prescription or pharmaceutical drugs that may impair the operators judgement or mental awareness ;
(g) conduct a job safety analysis prior to using the Plant at a site;
(h) accept responsibility for the safe-keeping of and insuring the Plant during the Hire Period;
(j) comply with all Environmental Laws from time to time and immediately rectify any breach of an Environmental Law caused by the use of the Plant.
5.4 Cleaning and Maintenance: The Customer must:
(a) clean and maintain the Plant in good condition and in accordance with the manufacturer's and the Owner's instructions at the Customer’s cost, and
(b) not in any way alter, modify, tamper with, damage or repair the Plant without the Owner’s written consent.
5.5 Safekeeping: The Customer must ensure that during the Hire Period the Plant is stored safely and securely and is protected from theft, seizure or damage.
5.6 Alteration and Identifying Marks: The Customer must not alter, deface, remove or erase any notices, safety information, identifying mark, plate or number on the Plant.
5.7 Inspections: The Customer consents to the Owner inspecting the Plant from time to time during the Hire Period. In addition, the Customer may arrange a joint inspection with the Owner at the end of the Hire Period. Additional costs may be incurred by the Customer for Plant inspections. A final inspection of the Plant will be undertaken by the Owner to ensure the plant has been returned in a satisfactory condition.
5.8 Safe Loading and Transport: The Customer will ensure the safe loading, securing and transporting of all Plant in accordance with all laws and manufacturer’s guidelines. Customer and any transporting contractor will observe any safety directions advised by the Owner and/or manufacturer of the Plant for its loading and safe handling.
5.9 Location: The Customer must not remove the Plant from the State of Victoria without the Owner’s written consent. It is the responsibility of the Customer to ensure the Plant is returned to the owner. This may not be the location which the Plant was initially collected by the Customer.
5.10 Electrical Equipment re-testing and re-tagging: Customer is responsible for arranging at the Customer’s cost the re-testing and re-tagging of the electrical equipment by the manufacturer’s agent in accordance with the manufacturer’s instructions and the applicable Australian Standard(s) and Regulatory Authority requirements. The Owner is able to arrange, at the Customer’s cost, for such re-testing and re-tagging of the electrical equipment. Any damage caused to the Plant resulting from incorrect testing will be at the Customer’s cost.
6. Equipment Breakdown
6.1 Obligations of Customer: In the event that the Plant breaks down or becomes unsafe to use during the Hire Period the Customer will:
(a) immediately stop using the Plant and notify the Owner;
(b) take all steps necessary to prevent injury occurring to persons or property as a result of the condition of the Plant;
(c) take all steps necessary to prevent any further damage to the Plant, and
(d) not repair or attempt to repair the Plant without the Owner's written consent.
6.2 Obligations of the Owner: In the event that the Plant breaks down or becomes unsafe to use through no fault, negligence, recklessness or misuse by the Customer, the Owner will:
(a) take all steps necessary to repair the Plant or provide suitable substitute Plant as soon as reasonably possible after being notified by the Customer;
(b) not impose a hire charge for that portion of the Hire Period for which the Plant was broken down or unsafe, nor the costs associated with any repair or replacement of the Plant, and
(c) not be liable for any expenditure, damages, loss or inconvenience incurred by the Customer arising from a breakdown of Plant, however so caused.
Without limiting Section 8.4, the customer will be made liable for any costs incurred for the repair, replacement and inspection of plant deemed to be damaged by the customer or the responsibility of the customer as outlined in section 7.
7. Lost, Stolen or Damaged Equipment
The Customer is responsible for the Plant and its attached tools and accessories whilst on hire until the Plant is collected by the Owner, or returned to the Owner by the Customer. If the Plant is lost, stolen or damaged during the Hire Period the Customer will be liable for:
(a) any costs incurred by the Owner in repairing or the new replacement cost of the Plant, and
(b) any other costs whatsoever incurred by the Owner as a result of the loss, theft or damage to the Plant, including the continuation of hire charges when the damages were caused by the negligence or act or omission of the Customer
8. Indemnities and Exclusion of Liabilities
8.1 Subject to clause 8.2 and except as expressly provided to the contrary in the Hire Agreement all terms, conditions, warranties, undertakings, inducements or representations whether express or implied, statutory or otherwise, relating to the Owner’s obligations under the Hire Agreement are excluded.
8.2 Where any Act of Parliament implies a term, condition or warranty in this Hire Agreement and that Act prohibits provisions in a contract excluding or modifying the application, exercise or liability under that term, condition or warranty, such term, condition or warranty will be deemed to be included in this Agreement provided that the liability of the Owner for breach of the term, condition or warranty is limited to (at the Owner's election) the repair or replacement of the Plant or the supply of substitute Plant (or the cost of doing so) and in no event will any liability for damages be greater than the cost of the services being supplied under the Hire Agreement.
8.3 Subject to clause 8.2, the Owner will not be under any liability to the Customer for consequential loss or damage (including loss of actual or anticipated profits or revenue, economic loss of any kind or any loss suffered as a result of any claim or claims by third parties) in contract, tort (including negligence) under statute or otherwise from or in relation to the Plant or this Hire Agreement.
8.4 The Customer is liable for and indemnifies the Owner against all liability, claims, loss, costs and expenses (including, without limitation, legal fees, costs and disbursements on the higher of a full indemnity basis and a solicitor/client basis, determined without taxation, assessment or similar process and whether incurred or awarded against the Owner or not, and any environmental loss, cost, damage or expense) arising from or incurred in connection with Customer's hire and use of the Plant or its breach of the Hire Agreement.
8.5 Each indemnity in this Hire Agreement is a continuing obligation, separate and independent from the other obligations of the parties and survives termination, completion and expiration of this Hire Agreement. It is not necessary for a party to incur expense or make any payment before enforcing a right of indemnity conferred by this Hire Agreement. The Customer must pay on demand any amount it must pay under an indemnity in this Hire Agreement.
8.6 For the purposes of clauses 8.3 to 8.5, use of Plant operated by a person supplied by the Owner will be use of the Plant by the Customer.
9. Termination
9.1 The Owner may terminate the Hire Agreement immediately by notice to the Customer, if:
(a) the Customer breaches any term of the Hire Agreement, or
(b) the Customer becomes bankrupt or insolvent, executes a personal insolvency agreement, enters into liquidation, administration, receivership or ceases to carry on business.
9.2 The Owner may terminate the Hire Agreement for any other reason by 24 hours notice.
9.3 The right of termination is in addition to any other rights under the Hire Agreement and does not exclude any right or remedy under law or equity or the survival of other terms under the Hire Agreement.
10. Recovery of Equipment
If the Customer is in breach of the Hire Agreement or if the Owner has terminated the Hire Agreement with the Customer pursuant to clause 10, the Owner may take all steps necessary (including legal action) to recover the Plant, including entering the Customer's premises to do so.
11. Hire of Motorised Vehicles
Where the Plant hired by the Customer is a Motorised Vehicle these additional Terms and Conditions also apply to the Hire Agreement:
11.1 Definitions:
“Motorised Vehicle” means an electric scooter, electric wheelchair, power assisted drive device.
11.2 Insurance: The Owner will arrange insurance for each Motorised Vehicle to cover any damage caused through accident and the Customer must pay a charge for such insurance. The Customer is to be liable for any cost associated with obtaining the insurance.
11.3 Damage to Motor Vehicle: In the event that the Motorised Vehicle is lost, stolen or damaged (not through accident) during the Hire Period, the Customer is liable to pay the amount to replace or repair the Motorised Vehicle.
11.4 Damage to Tyres: The Customer is liable to pay the cost of repairing or replacing flat or damaged tyres and other damage to tyres arising due to ordinary and reasonable use of the Motorised Vehicle and use deemed to be unreasonable by the Owner. This is subject to clause 6.1 and must be notified to the Owner. Repairs are to be carried out by the Owner unless agreed in writing by the Owner.
11.5 Operation of Motorised Vehicles: The Customer warrants that it will not allow a person to drive a Motorised Vehicle if:
(a) the person has not been instructed by the Owner or relevant authority in the safe use of the Motorised Vehicle;
(b) the person is affected by drugs and/or alcohol or prescription or pharmaceutical drugs that may impair the operators judgement or mental awareness;
(c) the person has previously been refused motor vehicle or home insurance.
A breach of any of this clause 11.5 may render the Hire Contract void and the Customer liable for the costs of repairs or the replacement cost of the Motorised Vehicle.
11.6 Fines and Government Charges: The Customer will promptly pay all fines, penalties and other statutory or Government charges arising out of the use of the Motorised Vehicle by the Customer during the Hire Period. If the Owner pays any such charges the Customer must reimburse the Owner within 7 days of receiving notification of the charges from the Owner.
11.7 Safe Loading: The Customer warrants that no Motorised Vehicle will be laden in excess of the Motorised Vehicle's Safe Working Load ( SWL ) at any time during the Hire Period.
11.8 Other Conditions: The Customer acknowledges that the Standard Conditions of Hire set out in this document (particularly clause 5 – Customer’s Hire Obligations) also apply to Motorised Vehicles.
12 Miscellaneous
12.1 Severability: If any part of this agreement becomes void or unenforceable for any reason then that part will be severed with the intent that all remaining parts will continue to be in full force and effect and be unaffected by the severance of any other parts.
12.2 Governing Law and Default Recovery: The Hire Agreement is governed by the laws of the State of Victoria in which the Hire Agreement is entered into by the parties and each party submits to the exclusive jurisdiction of the courts the State of Victoria. The Customer will not object to the Owner using the jurisdiction of Victoria for the recovery of any outstanding amount.
12.3 Security of Obligations: As security for the obligations and liabilities of the Customer under the Hire Agreement, the Customer hereby charges for the due and punctual payment and performance of those obligations and liabilities, all of its legal and equitable interest (both present and future) of whatsoever nature held in any and all Real property. Without limiting the generality of the charge in this clause, the Customer agrees, on request by the Owner, to execute any documents and do all things necessary required by the Owner to register a mortgage security over any Real property. The Customer will indemnify the Owner on an indemnity basis against all costs and expenses incurred by the Owner in connection with the preparation and registration of any such mortgage documents. The Customer also consents unconditionally to the Owner lodging a caveat or caveats noting its interest in any Real property.
12.4 Entire Agreement: The Hire Agreement issued to the Customer, including these Standard Conditions of Hire, comprises the entire agreement between the parties. No additional terms and conditions proposed by the Customer (including any terms contained in any purchase order provided by the Customer) apply to the hire of the Plant unless agreed in writing by the Owner.
12.5 No Reliance: The Customer acknowledges that neither the Owner or any person acting on the Owner's behalf has made any representation or other inducement to it to enter into the Hire Agreement and that it has not entered into the Hire Agreement in reliance on any representations or inducements (including in relation to the use of the Plant) except for those representations or inducements contained herein.
12.6 Variation: The Owner may at any time vary the Hire Agreement by giving the Customer 7 days written notice of its intention to do so. Any other variation of these terms and conditions must be agreed in writing by the Owner and the Customer.
12.7 Privacy:
(a) The Owner may collect personal information about the Customer. The Owner’s Privacy Consultant can be contacted on (03) 9725 6577. The Owner may use the Customer's personal information to
provide services to the Customer, to fulfil administrative functions associated with these services (for example assessment of credit worthiness), to enter into contracts with the Customer or third parties, and for marketing and client relationship purposes. If the Customer does not provide all information required by the Owner, the Owner will not be able to hire the Equipment or provide the associated services to the Customer. The Owner may disclose the Customer's information to the Owner's service providers and contractors from time to time to help provide and market the Owner's services to the Customer. Generally the Customer has a right to access personal information the Owner holds about the Customer.
(b) The Customer consents to and authorises the Owner to use and disclose the Customer's personal information in accordance with clause 12.7(a).
12.8 Notice to Customer: Any document which by the Hire Agreement may be given by the Owner may be served or rendered by leaving it at or posting it to the address of the Customer as stated in the Hire Agreement or last notified by the Customer in writing to the Owner and will be deemed to have been served or rendered at the time of leaving or, if posted, on the business day following the day of postage and any notice may be signed by an officer, manager or solicitor of the Owner on behalf of the Customer.
12.9 No Waiver: No delay or omission to exercise any right, power or remedy accruing to the Owner upon any continuing breach or default under the Hire Agreement will impair any such right, power or remedy, nor will it be construed to be a waiver of any right of the owner to take action or make a claim in respect of a continuing breach or default or to be acquiescence to it.
12.10 Withdrawal of Credit Accommodation: Any credit accommodation granted by the Owner to the Customer may be reviewed at any time without notice. Credit may be withdrawn for Customers failing to make payments or use the Plant in accordance with these Standard Conditions of Hire and a statement may be issued at that time requiring payment within 7 days of any amount due and owing.
12.11 Authority of Customer: The person undertaking the Hire Agreement for and on behalf of the Customer hereby covenants with the Owner that he or she has the authority of the Customer to make the Agreement on the Customer’s behalf and is empowered by the Customer to bind the Customer to the Agreement and hereby indemnifies the Owner against all losses, costs and claims incurred by the Owner arising out of the person so undertaking the Agreement not in fact having such power and/or authority.
12.12 Previous Editions: This edition of the Standard Conditions of Hire replaces and supersedes all previously issued Conditions of Sale and Hire by the Owner.
12.13 Time of the Essence: Time is to be of the essence of all obligations of the Customer in the Hire Agreement.
12.14 Right of Refusal to Hire: The Owner is in no way obliged to hire any Plant to the Customer and may refuse to hire Plant to a Customer at its absolute discretion, including but not limited to, if the Customer fails to provide adequate identification or if in the opinion of the Owner, the Customer’s safety is put at risk by providing them with such Plant.