NOTE TO APPLICANT:
Please read the attached Cavrent Credit Terms and Rental Terms and Conditions very carefully. They contain important terms and conditions that you should ensure that you understand before agreeing to be bound by them. These include:
- Customers may be required to provide differing levels of security to secure all amounts owing to Cavrent (see clauses 10 and 11 of the Credit Terms and clause 6 of the Rental Terms and Conditions).
- Customers may be liable for damage to Equipment hired by them, and for damage to goods or property owned by a third party (see clauses 4.2 and 12 of the Rental Terms and Conditions).
- The liability of Cavrent to Customers is excluded in some circumstances (see clause 17 of the Credit Terms and clause 12 of the Rental Terms and Conditions).
- If Customers do not have sufficient insurance coverage, they will be required to pay Renter Protection for the Equipment (see clauses 9 and 10 of the Rental Terms and Conditions).
- Your credit account may be suspended if invoices are overdue for more than 14 days (see clause 4 of the Credit Terms).
CAVRENT PTY LTD Commercial credit terms (“credit terms”)
- In these Credit Terms:
1.1 “Account” means each account of the Applicant with the Supplier for Monies owing in relation to the supply of Goods;
1.2 “Applicant” means the applicant for commercial credit on these Credit Terms and if more than one person, all such persons collectively and each of them individually in which case the obligations and liabilities of the Applicant in these Credit Terms apply to all such persons jointly and each of them severally;
1.3 “Application” means an application for commercial credit on these Credit Terms;
1.4 “Credit Limit” means the credit limit approved by the Supplier upon acceptance of an Application or such other limit notified to the Applicant from time-to-time by the Supplier in accordance with these Credit Terms. The Credit Limit includes the Supplier work in progress as well as invoiced amounts;
1.5 “Default Event” means an event specified as a Default Event in clause 9;
1.6 “Due Date” means the later of the last business day of the month following the month in which an invoice is rendered to the Applicant and any such other date which the Supplier informs the Applicant in writing is the Due Date.
1.7 “Goods” means goods and/or services supplied or to be supplied by the Supplier to the Applicant on Account;
1.8 “Monies” means all monies now or in the future owing by the Applicant to the Supplier on any account and includes any part of those monies and interest;
1.9 “PPSA” means the Personal Property Securities Act 2009 (Cth);
1.10 “PPSR” means the Personal Property Securities Register established under the PPS Act;
1.11 “Rate” means a rate 4% per annum greater than the rate published by the Commonwealth Bank of Australia from time to time on commercial overdraft finance facilities in excess of $100,000 accruing daily and capitalised monthly;
1.12 “Supplier” means Cavrent Pty Ltd ACN 082 028 082; and
1.13 “Trust” means each trust in respect of which the Applicant acts as trustee.
2. The Applicant agrees that all Goods are supplied subject to the Cavrent Rental Terms (“Rental Terms”) and that the Rental Terms will prevail to the extent of any inconsistency. Except as explicitly agreed by the Supplier in writing, no terms offered by or implied on behalf of the Applicant will be of any effect.
3. The Supplier may require the Applicant to use such purchase order form as is notified by the Supplier from time to time for the supply of Goods on credit.
4. The Applicant must pay for all supplied Goods on or before the Due Date. Each payment must be made by electronic funds transfer or in such manner as the Supplier may approve from time-to-time. If an invoice is more than 14 days overdue, the Applicant’s credit account may be suspended until all outstanding Monies are paid.
5. Monies owing on the Account must not at any time exceed the Credit Limit unless otherwise agreed in writing by the Supplier’s credit manager.
6. Interest accrues at the Rate on the balance of overdue Monies and the Supplier may apply payments in satisfaction of interest first and then to the balance of overdue Monies.
7. The Applicant authorises the Supplier (in its absolute discretion) to set off any credits in any Account against any Monies owing.
8. A Default Event occurs if:
8.1 at any time the debit balance of the Account exceeds the Credit Limit without the express written approval of the Supplier’s credit manager;
8.2 Monies are unpaid after the Due Date;
8.3 the Applicant fails to notify the Supplier no later than 14 days prior to any proposed change of address, ownership, shareholding, effective control or directors of the Applicant; or
8.4 the Applicant is in breach of these Terms or the Rental Terms.
9. If a Default Event occurs, without limiting clause 9, the Supplier may issue a notice of default to the Applicant specifying a period within which the Default Event must be remedied. If the Applicant fails to remedy the Default Event within the specified period or if the Default Event is otherwise incapable of remedy:
9.1 the Supplier may terminate the supply of Goods on credit or otherwise reduce the agreed payment terms;
9.2 the Supplier may vary or withdraw the Credit Limit and any such variations will apply in respect of the continued order and supply of Goods after such notification;
9.3 all Monies in respect of the Goods become immediately due and payable;
9.4 the Supplier may retake possession of the Goods;
9.5 the Supplier may retain all moneys paid on account; and
9.6 the Supplier may, if it notifies the Applicant that Monies in respect of the Goods are recoverable as a debt, sue for those Monies
10. The Applicant acknowledges and agrees that:
10.1 these Terms constitute a Security Agreement for the purposes of the PPSA;
10.2 the Applicant will grant the Supplier a security interest which may constitute a purchase money security interest (“Security Interest”) under the PPSA in the Goods and their proceeds to secure all amounts owed to the Supplier by the Applicant;
10.3 the Supplier may register the Security Interest on the PPSR under the PPSA;
10.4 the Applicant will:
10.4.1 do all things necessary and provide the Supplier on request all information the Supplier may require to register a financing statement or financing charge statement on the PPSR;
10.4.2 not take possession of Goods by way of, or transfer the Goods to, any enterprise other than the one acknowledged above without first notifying the Supplier;
10.4.3 if requested by the Supplier, the Applicant must pay the Supplier the cost of registering and maintaining registration of the Security Interest on the PPSR, within 14 days of that request; and
10.4.4 not change its name in any form or other details on the PPSR without first notifying the Supplier;
10.5 the Supplier need not give any notice under the PPSA (including a verification statement or a financing change statement) unless the notice is required by the PPSA and cannot be excluded;
10.6 neither the Applicant nor the Supplier may disclose information of the kind referred to in section 275(1) of the PPSA (except where the Applicant or the Supplier may do so where required due to the operation of section 275(7) of the PPSA) and the Applicant must not authorise the disclosure of such information without the Supplier’s prior consent;
10.7 if Chapter 4 of the PPSA would otherwise apply to the enforcement of the Security Interest, the following provisions of the PPSA will not apply, or are waived, as the context required:
10.7.1 section 95 (notice of removal of accession);
10.7.2 section 118 (enforcement of security interest in accordance with land law decisions);
10.7.3 section 123 (secured party may seize collateral);
10.7.4 section 125 (obligation to dispose or retain collateral);
10.7.5 section 128 (secured party may dispose of collateral);
10.7.6 section 129 (notice of purchase);
10.7.7 section 130 (notice of disposal);
10.7.8 sections 132(1) and (4) (right to receive a statement of account);
10.7.9section 135 (notice of retention);
10.7.10 section 142 (redemption of collateral); and
10.7.11 section 143 (reinstatement of security agreement);
10.8 the Applicant will not grant to any third party, or allow anyone else to register, any security interest over the Goods; and
10.9 without affecting any other indemnity or rights under these Terms, if the Applicant is in breach of any of its obligations under this clause 10 the Applicant must indemnify the Supplier against all loss or expense suffered by the Applicant as a consequence of that breach; and
10.10 unless otherwise defined in these Terms, the Terms and expressions used in these Terms have the meanings given to them, or by virtue of, the PPSA.
11. The Supplier may from time-to-time require security or further security as a condition of continuing the supply of Goods on credit. For the purposes of this clause “security” includes a guarantee and indemnity, mortgage or Security Agreement for the purposes of the PPSA granted by any person nominated by the Supplier. In addition, the Applicant agrees:
11.1 that the Supplier may register a general security interest against the Applicant’s personal and after acquired property (and the individual partnership interests if the Applicant is a partnership) in any relevant personal property securities register in addition to the security interest created pursuant to clause 10; and
11.2 that the Applicant secures all property (and the individual partnership interests if the Applicant is a partnership) in favour of the Supplier so as to secure the payment of all Monies and the performance of the Applicant’s obligations under these Terms and agrees that the Supplier may, at its option, register a caveat over the Applicant’s real property so as to secure such a security interest.
12. At all times:
12.1 the ownership of the Goods remains with the Supplier;
12.2 the Applicant:
12.2.1 holds the Goods as the Supplier’s bailee;
12.2.2 must properly store the Goods separately from any other goods and in a manner which clearly shows the Supplier as the owner of the Goods;
12.2.3 must insure the Goods;
12.2.4 must account to the Supplier for all proceeds of the Goods, including insurance proceeds; and
12.2.5 must permit the Supplier reasonable access to the Applicant’s premises at any time to inspect the Goods; and
13. Despite clause 12 risk passes to the Applicant on the earlier of either dispatch or collection of the Goods and remains with the Applicant until the Goods are returned to the Supplier.
14. If the Applicant makes an Application in its capacity as a trustee of any Trust, the Applicant warrants that;
14.1 these Terms are lawful, binding and enforceable against the Trust property; and
14.2 such Application is made within the full authority and power under the relevant Trust instrument.
15. All reasonable costs, expenses and disbursements incurred by the Supplier (including debt collection agency fees and legal costs) arising from or incidental to the Supplier exercising a right under these Terms or from a Default Event, are payable by the Applicant upon demand.
16. The Applicant indemnifies and will keep indemnified the Supplier against any loss, damage, cost, expense or liability which the Supplier incurs because an entity (with or without the Supplier’s knowledge) uses credit available to the Applicant under these Terms with the Applicant’s authority or consent.
17. Except as otherwise explicitly required by law, the Supplier will not be liable for any loss or damage suffered by the Applicant, however arising, directly or indirectly, in relation to the provision by the Supplier of commercial credit in accordance with these Terms.
18. The Applicant agrees that, in respect of an Applicant who is not an individual or sole trader,:
18.1 the Supplier may use and seek information from credit reporting bodies including:
18.1.1 a commercial credit report in order to assess an Application; and
18.1.2 a commercial credit report for the purpose of assisting in the collection of Monies owing;
18.2 in accordance with the Privacy Act 1988 (Cth) (“Privacy Act”), as amended from time to time, the Supplier in assessing an Application may use and seek from a credit provider named in an Application or in a commercial credit report (if applicable)personal information including (but not limited to) default information, repayment history or consumer credit liability information of the Applicant and any entity named in the Application; and
18.3 the Supplier may disclose personal information concerning the Applicant to another credit provider for any purpose listed in clause 18.2, subject to any restrictions in the Privacy Act
20.1 the purposes for which the Applicant’s personal information is collected by the Supplier;
20.2 the consequences if the Applicant’s personal information is not collected by the Supplier;
20.3 the third parties to which the Supplier discloses the Applicant’s personal information;
20.4 how the Applicant may seek access or correction of their personal information;
20.5 whether the Applicant’s personal information is likely to be disclosed to overseas entities and in which countries; and
20.6 how the Applicant can complain about a breach of the Supplier’s obligations in respect of the Applicant’s personal information and how such a complaint will be dealt with by the Supplier.
21. If any part of these Terms or any related document is or becomes void or unenforceable that part is to be severed so that all remaining parts which are not void or unenforceable remain in full force and effect and are unaffected by the severance.
22. The Supplier’s failure to exercise any right or power does not operate as a waiver and a partial exercise of a right or power including for example the acceptance of a part payment, does not preclude any further exercise of any right or power.
23. The Supplier reserves the right to vary these Terms from time to time . The Supplier will give the Applicant 30 days’ notice of any variation to these Terms. If the Applicant does not accept the variation to these Terms, the Applicant must advise the Supplier in writing within that 30 day notice period, otherwise the Applicant will be deemed to have accepted the varied terms.
24. Any notice, demand, consent, approval or other communication from any party to the other must be in writing and may be sent to:
24.1 the Supplier, at PO Box 84, ENFIELD PLAZA SA 5085, or Fax 08 8269 6086 or firstname.lastname@example.org.
24.2 the Applicant, at its business address or facsimile number mentioned in this Application.
25. These Terms are governed by the laws of South Australia. The Applicant submits to the non-exclusive jurisdiction of the courts of South Australia.
26. A signed certificate from the Supplier stating the amount of the Monies owing or the value of any damage to the Goods in the absence of manifest error will be conclusive and binding on the Applicant.
27. The Supplier may transfer its rights under these Terms to a related third party or as part of a group consolidation or restructure without the Applicant’s consent.
28. The Applicant and any person signing the Application on behalf of the Applicant jointly and severally warrant that:
28.1 such person and the Applicant are each authorised to make the Application;
28.2 all information in the Application is complete, accurate and not misleading;
28.3 the Applicant is able to pay its debts when due;
28.4 these Terms are binding; and
28.5 the Application relates solely to and the Applicant will only use the Account for commercial credit purposes.
GUARANTEE AND INDEMNITY (“GUARANTEE”)
1. In consideration of Cavrent Pty Ltd ABN 12 082 028 082 (“Cavrent”) agreeing to supply or continuing to supply equipment pursuant to a Credit Application to the Applicant, each guarantor named below (“Guarantor”) unconditionally and irrevocably guarantees on demand to Cavrent the due and punctual payment of all debts and monetary liabilities, including without limitation costs and expenses which are or which may become payable by the Applicant to Cavrent or any related body corporate on any account and in any capacity (“Guaranteed Monies”) and, as a separate and independent obligation, agrees to indemnify and keep Cavrent and any related body corporate indemnified from and against any claim, action, loss, damage, liability, cost, expense, outgoing or payment suffered, paid or incurred by Cavrent or such related body corporate in relation to the non-payment or non-recovery of the Guaranteed Monies or as a result of any breach by the Applicant of Cavrent’s Credit Terms and Rental Terms and Conditions attached to the Credit Application.
2. The Guarantor hereby agrees with Cavrent that this Guarantee shall be a continuing obligation of the Guarantor and that the Guarantor’s obligations under this Guarantee are principal obligations and are not released, discharged or otherwise affected by anything which, but for this provision, might have that effect.
3. Until such time that Cavrent has received all of the Guaranteed Monies, the Guarantor agrees:
3.1 that, in the event of any bankruptcy or other administration of the Applicant’s estate or any winding up or scheme of arrangement of the Applicant, that the Guarantor will not, without the prior consent of Cavrent, lodge any proof of debt or similar claim in respect of any debt or liability to the Guarantor on any account whatsoever, nor enforce any security held by the Guarantor in respect of the Applicant and shall hold any such debt, liability or security, and any rights or benefits in respect thereof, on trust for Cavrent;
3.2 if requested by Cavrent, to lodge a proof of debt or similar claim in any such administration and enforce any such security and to execute all such documents and do all such things as Cavrent may require to enable Cavrent to have and receive the benefit of or arising from any such proof, claim or security;
3.3 not to attempt or purport to be subrogated to Cavrent; and
3.4 that the Guarantor’s liability under this Guarantee shall be that of principal debtor.
4. The Guarantor further agrees that:
4.1 the Guarantor has signed this Guarantee voluntarily;
4.2 before entering this Guarantee, the Guarantor had the opportunity to consult and receive advice as to the purpose, effect and consequences of, and obligations created by, this Guarantee from a legal adviser independent of Cavrent;
4.3 the Guarantor understands the nature and effect of this Guarantee, in particular that the Guarantor has agreed to guarantee all amounts presently owed by the Applicant to Cavrent and any related body corporate and all amounts that the Applicant may in the future owe to Cavrent and any related body corporate and has also agreed, as a separate and independent obligation, to provide an indemnity to Cavrent and any related body corporate if any of the Guaranteed Monies are not paid to, or recovered by, Cavrent; and
4.4 it has not entered into this Guarantee on reliance on any representation, warranty, promise or statement of Cavrent or any person on behalf of Cavrent or any related body corporate.
5. The Guarantor hereby charges all of the Guarantor’s present and after acquired personal property and all present and future beneficial interests of the Guarantor in any real property in favour of Cavrent to secure the performance of all obligations of the Guarantor and the payment of all monies owed or payable to Cavrent pursuant to this Guarantee. The Guarantor waives its right to receive all notices which sections 144(b) and 157(3) of the Personal Property Securities Act 2009 (Cth) (“PPSA”) permit the Guarantor to waive. The Guarantor consents to Cavrent creating a registration on the PPSR (in any manner Cavrent deems appropriate) in relation to any security interest arising under, in connection with or contemplated by this Guarantee. The Guarantor acknowledges and agrees that, pursuant to section 115 of the PPSA, Cavrent need not comply with sections 95, 118, 123, 125, 128, 129, 130, 132(1) and (4), 135, 142 and 143 of the PPSA. Notices or documents required or permitted to be given to Cavrent for the purposes of the PPSA must be given in accordance with the PPSA. The Guarantor agrees to promptly execute any documents, provide all relevant information, fully cooperate with Cavrent and do any other act or thing that Cavrent requires to ensure that any security granted pursuant to this Guarantee is duly perfected and has the priority as required by Cavrent In this paragraph, the following words have the respective meanings given to them in the PPSA: PPSR, registration, security interest.
6. The Guarantor agrees that a notice issued by Cavrent stating any monies owed by the Applicant or Guarantor to Cavrent or any related body corporate or under this Guarantee shall be conclusive evidence of such amounts owing by the Applicant and Guarantor absent manifest error.
7. No payment shall operate to discharge or reduce a liability of the Guarantor if such payment is or becomes voidable under any law relating to bankruptcy or the winding up of companies, and no discharge or release consequent upon such payment shall discharge the liability of the Guarantor under this Guarantee.
8. Where any provision or application of any provision of this Guarantee is rendered ineffective by operation of law in any jurisdiction, that shall not affect the validity, legality, enforceability or effectiveness of the remaining provisions or of that provision in any jurisdiction other than the jurisdiction where the provision is rendered ineffective.
9. The guarantee and indemnity contained in this Guarantee are separate and independent obligations of the Guarantor and neither limits the generality of the other.
10. All payments which the Guarantor is required to make under this Guarantee must be made without any set off, counterclaim, condition or deduction and are payable on demand by Cavrent.
11. Any demand or notice may be served on the Guarantor by delivering it to the Guarantor personally or by sending it by post to the Guarantor’s last address.
12. The Guarantor must fully indemnify Cavrent for all expenses and legal costs that Cavrent incurs in enforcing this Guarantee.
13. This Guarantee is governed by the laws of South Australia and the Guarantor irrevocably submits to the non exclusive jurisdiction of the courts of South Australia.
CAVRENT PTY LTD Rental Terms and conditions
“Agreement” has the meaning specified in clause 2.
“Customer” means the customer identified in the Rental Agreement and includes the Customer’s employees, executors, administrators and representatives.
“Date Out” means the date on which the Equipment is rented as specified in the Rental Agreement.
“Dealer” means the dealer specified in the Rental Agreement and includes its officers, employees, agents, successors and related parties.
“Equipment” means the equipment rented by the Dealer to the Customer from time to time and includes any and all accessories, tools, attachments, parts, manuals, instructions, packing and transportable materials, substitute and replacement Equipment, unless indicated to the contrary in these Rental Terms. “Location” means the Location of the Equipment as specified in the Rental Agreement or such other location as agreed by the Dealer.
“Off-Rent Number” means the number provided by the Dealer to the Customer when the Customer notifies the Dealer that the rental of the Equipment has ended.
“Rental Account Application” means the application identified as the Rental Account Application. “Rental Agreement” means the express terms identified as the Rental Agreement.
“Rental Charges” means the rental charges charged by the Dealer to the Customer for the rent of the Equipment and identified in the invoice provided by the Dealer to the Customer.
“Rental Period” means the period set out in the Rental Agreement.
“Renter Protection” means an amount paid by the Customer to reduce the Customer’s financial liability in the event of loss or damage to the Equipment.
2.1 The Dealer rents the Equipment to the Customer on the terms of the Rental Agreement, these Rental Terms and, where applicable, the Rental Account Application (collectively, “the Agreement”). The Agreement constitutes the entire agreement between the parties.
2.2 The Dealer may amend or replace the Agreement (including Rental Charges) by written notice to the Customer. The Dealer will give the Customer 30 days’ notice of any variation to the Agreement. If the Customer does not accept the variation to the Agreement, the Customer must advise the Dealer in writing within that 30 day notice period, otherwise the Customer will be deemed to have accepted the varied terms. .Any and all subsequent rental of Equipment after the 30 days notice period will be on the amended or replaced terms.
3. Rental Charges and Other Charges
3.1 Rental Charges will be incurred from the Date Out until and including the day on which the Customer receives an Off-Rent Number from the Dealer or the Rental Agreement is terminated in accordance with clause 11, whichever is the earlier unless the Off-Rent Number is issued before 8am, in which case there will be no Rental Charge for that day.
3.2 The Customer must not request an Off-Rent Number unless the Equipment is ready to be returned to, or to be collected by, the Dealer.
3.3 Additional Rental Charges may apply if Equipment hired on a daily basis is used for more than eight hours in any day or if the Equipment which has been hired for a week is used for more than five days.
3.4 The Customer must pay:
3.4.1 a charge for delivery of the Equipment and, if necessary, return of the Equipment;
3.4.2 all Equipment operating costs (including fuels, oils and lubricants) incurred, and all consumables used, during the Rental Period;
3.4.3 any taxes, duties (including stamp duty), levies, charges or imposts on or in connection with the Agreement;
3.4.4 a sum equal to the amount of any goods and services tax (GST) payable by the Dealer on any supplies made by the Dealer under or in connection with the Agreement, calculated by multiplying the GST exclusive consideration payable for the relevant supply or supplies by the prevailing GST rate;
3.4.5 any costs or expenses reasonably incurred by the Dealer in enforcing the Agreement, as a result of the Customer’s breach of the Agreement or in order to return the Equipment to the same condition as at the Date Out excluding normal wear and tear (including cleaning costs); and
3.4.6 any Renter Protection payable under clause 9.
3.5 Where any amount payable under the Agreement becomes overdue by the Customer, all outstanding amounts whether due to the Dealer under the terms of the Agreement or under any other agreement between the Dealer and the Customer will become immediately due and payable by the Customer to the Dealer.
3.6 If the Customer fails to pay any amount due and receivable by the Dealer, the Dealer will issue a default notice in relation to any amount due and not paid and give the Customer not less than 14 days within which to remedy the non-payment. If the Customer does not remedy the non-payment within the period stipulated within the notice issued in accordance with this clause, the Dealer may charge the Customer interest calculated on a daily basis and compounded monthly on overdue amounts from the due date of payment to the date of actual receipt of payment at an interest rate which is 4% greater than the rate published by the Commonwealth Bank of Australia or its successor on commercial overdraft finance facilities in excess of $100,000 as at the due date of payment.
3.7 The Customer must pay all amounts owing under the Agreement within 30 days from end of month.
4. Customer obligations
4.1 Except as provided in the Agreement, the Customer shall have no right, title, property or interest in the Equipment except as a bailee and must not sublet, transfer, dispose of grant a security interest over, permit a security interest to be registered over or otherwise deal with any rights or interest in the Equipment. The Customer must do everything reasonably necessary to protect the rights of the Dealer in the Equipment. A breach of this clause will entitle the Dealer to terminate this Agreement by written notice to the Customer and demand return of the Equipment immediately.
4.2 Risk in the Equipment passes to the Customer on delivery of the Equipment to the Customer and remains with the Customer until the Equipment is collected by or returned to the Dealer. Subject to clause 9 below, the Customer is liable to the Dealer for any and all loss or damage to, or caused by, the Equipment or its operation and all costs incurred in respect of the Equipment including the cost of repairing or replacing the Equipment at the full list price, salvage costs and any reasonable Rental Charges incurred while the Equipment is repaired or replaced (as permitted by law).
4.3 The Customer must ensure that the Equipment is:
4.3.1 operated by a suitably trained, licensed, experienced and (if necessary) certified operator and is operated in accordance with the Operator’s Manual and the Dealer’s instructions;
4.3.2 returned to the Dealer in the same condition as at the Date Out (except for normal wear and tear) and returned with a full tank of fuel or the Customer will pay the Dealer the cost of filling that tank;
4.3.3 used for the purpose for which the Equipment was designed, in suitable terrain and in a manner which has regard to the capacity, capabilities and limitations of the Equipment;
4.3.4 not removed from the Location without the Dealer’s written consent;
4.3.5 at all times stored safely and protected from theft, loss or damage.
4.4 If the Equipment breaks down or becomes unsafe to operate, the Customer shall immediately stop using the Equipment, ensure it does not sustain any further damage and prevent the Equipment from causing injury, loss or damage to any person or property.
4.5 The Customer must not repair or attempt to repair the Equipment without the Dealer’s prior written consent.
4.6 The Customer must immediately notify and provide full details to the Dealer of any loss, theft, breakdown or damage to the Equipment. Subject to clause 12 of these Rental Terms and otherwise as required by law, the Dealer will use reasonable endeavours to repair or replace the Equipment at the Dealer’s discretion and at the Customer’s expense after receiving such notification. Any equipment supplied as a replacement for the Equipment will be supplied for the unexpired balance of the Rental Period on the terms of the Agreement.
4.7 The Customer must:
(i) ensure that all safety information supplied with the Equipment is attached to the Equipment and conveyed to any person using the Equipment;
(ii) maintain any safety signs supplied by the Dealer and ensure they are clearly legible and brought to the attention of any person using the Equipment;
(iii) ensure that all safety and operating instructions and notices are observed and not defaced or removed from the Equipment;
(iv) ensure that any and all persons using the Equipment wear suitable clothing and any protection required or recommended by the Dealer or the safety and operating instructions;
(v) not alter, deface, erase or remove any identifying mark, plate or number on or in the Equipment or otherwise interfere with the Equipment; and
(vi) clean, fuel, lubricate and maintain the Equipment in good condition and in accordance with the Dealer’s instructions and the Operator’s Manual.
4.8 The Customer must comply with all applicable laws and regulations.
5. Access and inspection
The Dealer and its representatives have the right to enter the Location at any time upon giving prior reasonable notice to inspect, maintain and/or repair the Equipment or to repossess the Equipment. Customer must assist the Dealer and its representatives in exercising its rights under this clause.
6. Personal Property Securities Act 2009 (Cth) (“PPSA”)
6.1 The Customer acknowledges and agrees that if the Rental Period is for a period of 24 months or longer, this Agreement constitutes a PPS Lease for the purposes of the PPSA.
6.2 If the Agreement is a PPS Lease, the Customer acknowledges and agrees that:
i) the Agreement grants the Dealer a purchase money security interest (“PMSI”) in the Equipment and their proceeds to secure all amounts owed by the Customer to the Dealer;
ii) the Dealer may register its PMSI over the Equipment on the Personal Property Securities Register (“PPSR”);
iii) it will do all things necessary and provide the Dealer on request all information the Dealer requires to register a financing statement or financing charge statement on the PPSR;
iv) it will not to change its name in any form or other details on the PPSR without first notifying the Dealer; and
v) it will, if requested by the Dealer, pay to the Dealer the cost of registering and maintaining registration of the Dealer’s security interest on the PPSR, within 14 days of the request.
6.3 The Dealer need not give any notice under the PPSA (including a verification statement or a financing change statement) unless the notice is required by the PPSA and cannot be excluded.
6.4 No party may disclose information of the kind referred to in section 275(1) of the PPSA (except where the parties may do so where required due to the operation of section 275(7) of the PPSA) and the Customer must not authorise the disclosure of such information.
6.5 If Chapter 4 of the PPSA would otherwise apply to the enforcement of the PMSI under this Agreement, the parties agree that the following provisions of the PPSA will not apply, or are waived, as the context requires:
6.5.1 section 95 (notice of removal of accession);
6.5.2 section 118 (enforcement of security interest in accordance with land law decisions);
6.5.3 section 123 (secured party may seize collateral);
6.5.4 section 125 (obligation to dispose or retain collateral);
6.5.5 section 128 (secured party may dispose of collateral);
6.5.6 section 129 (notice of purchase);
6.5.7 section 130 (notice of disposal);
6.5.8 sections 132(1) and (4) (right to receive a statement of account);
6.5.9 section 135 (notice of retention);
6.5.10 section 142 (redemption of collateral); and
6.5.11 section 143 (reinstatement of security agreement).
6.6 Unless otherwise defined in this Agreement, the terms and expressions used in this clause 6 have the meanings given to them, or by virtue of, the PPSA.
7. Lessee leasing Equipment
7.1 Subject to clause 7.3, the Customer will not sell or offer for sale, assign, mortgage, pledge, underlet, grant or register a security interest over, lend or otherwise deal with the Equipment but will keep the Equipment in the Customer’s own possession.
7.2 The Customer will not grant any lien over the Equipment whether the lien be granted for repairs or otherwise and will protect the Equipment against distress, execution or seizure.
7.3 In exceptional circumstances, the Dealer will allow the Customer to on-hire the Equipment to customers of the Customer pursuant to a hire agreement (“Customer On-Hire”). However, the Dealer must consent in writing to such on hire of the
7.4 Where the Dealer consents to a Customer On-Hire pursuant to clause 7.3, the Dealer further acknowledges and agrees that the Customer may register a PMSI over the Equipment against their customer (“Hiree”) to secure the Hiree’s obligations pursuant to the Customer On-Hire and in fact such registration may be a condition of the Dealer’s consent. The Customer must provide evidence of this security interest registration to the Dealer within 2 days of registration on the PPSR.
7.5 The Customer acknowledges and agrees that it may only register a PMSI over the Equipment against the Hiree who has entered into the Customer On-Hire. The Customer may not grant a PMSI or a security interest of any kind in respect of the Equipment to any other third party.
9. Renter Protection
9.1 The Renter Protection must be paid by the Customer where the full new replacement cost of the Equipment as determined by the Dealer exceeds $200 unless it is waived and the appropriate insurance cover is verified by the Dealer (as per The CAT Rental Store Credit Application).
9.2 For the purposes of this clause, the term Equipment does not include any tools, accessories, parts, grease, guns, hoses or similar electrical cords, welding cables, gas cylinders, pneumatic tools, light globes and other similar accessories, ground engaging tools, tracks, tyres or glass.
9.3 If the Customer has acquired Renter Protection then, subject to this clause, the Customer’s liability for loss or damage to the Equipment caused by fire, storm, earthquake, or theft, is limited to $200 or 10% of the full new replacement cost of the Equipment, whichever is the greater.
9.4 The Customer’s liability will not be limited in accordance with clause 9.3 if, in the Dealer’s reasonable opinion, the loss or damage to the Equipment arises from or is caused by:
(i) a breach of the Agreement;
(ii) the Customer’s negligent acts or omissions;
(iii) improper use of the Equipment;
(iv) transporting, loading or unloading (except where transported by the Dealer),
(v) lack of lubrication or other normal servicing of the Equipment;
(vi) overloading, exceeding rated capacity, failing to maintain the Equipment, misuse, abuse or improper servicing of the Equipment;
(vii) artificial electrical current or exposure to any corrosive substance or environment; or
(viii) use or location of the Equipment in, on or over water, on bridges, vessels or structures of any kind.
9.5 The Customer must promptly report any theft of the Equipment to the police and provide the Dealer with written evidence verifying that report.
The Customer must at its cost take out and maintain during the term of the Agreement policies of insurance for:
(i) indemnity cover of not less than the full market value cost of the Equipment as determined by the Dealer acting reasonably; and
(ii) third party and public liability indemnity cover of not less than $20 million.
11. End of Rental Period & Termination
11.1 At the end of the Rental Period, the Customer must deliver the Equipment to the Dealer during normal working hours, or, if the Dealer agrees, the Equipment may be collected by the Dealer. The Customer irrevocably appoints the Dealer as its agent and authorises and licenses the Dealer to enter the Location and repossess the Equipment after the Customer receives an Off-Rent Number or upon termination of the Rental Agreement, whichever is the first to occur.
11.2 The Dealer may terminate any Rental Agreement or the Agreement as a whole and repossess the Equipment at any time by written notice to the Customer if the Customer is in breach of the Agreement and fails to remedy that breach within 7 days of receiving notice requiring the Customer to do so or the Customer becomes insolvent or otherwise is unable to pay its debts as they fall due.
12. Liability and indemnity
12.1 If the Australian Consumer Law applies, the Customer has the benefit of guarantees in relation to the Equipment which cannot be excluded. Otherwise, as far as the law permits, the Dealer excludes all warranties, conditions, rights and remedies in relation to the rental of the Equipment.
12.2 The Dealer’s liability for loss or damage (including consequential loss or loss of profit) incurred by the Customer or a person making a claim against the Customer is excluded as far as the law permits. To the extent it cannot be excluded, it is limited as far as the law permits to the repair or replacement of the Equipment or the supply of substitute goods (or the cost of doing so).
12.3 The Customer shall indemnify and shall continue to indemnify the Dealer against any liability, loss, damage, claim, action, demand, costs or expenses (excluding consequential loss) incurred or suffered by the Dealer howsoever arising out of the Customer’s use or possession of the Equipment, including, but not limited to:
12.3.1 any breach of the Agreement,
12.3.2 any breach of any laws (including environmental laws) by the Customer,
12.3.3 or any act or omission (negligent or otherwise) by the Customer;
12.3.4 any action or trespass resulting from the Dealer entering the Location in accordance with Clause 11.1, except to the extent caused by a negligent act or omission of the Dealer.
12.4 Nothing in the Agreement is intended to exclude, restrict or modify rights which the Customer may have under the Australian Consumer Law or otherwise which can not be excluded, restricted or modified by agreement.
12.5 These limitations and indemnities continue after the Agreement expires or terminates.
13.1 The expiry or termination of the Agreement does not affect the rights which have accrued before that expiry or termination or any rights and obligations of the parties which survive expiry or termination.
13.2 The Dealer may assign or sub contract all or any of its rights under the Agreement to a related third party or as part of a group consolidation or restructure. The Customer must not assign or sub contract all or any of its rights under the Agreement.
13.3 This Agreement is governed by the laws of South Australia. The Customer submits to the non-exclusive jurisdiction of the courts of South Australia.