Hire and Service Terms
Total Access Solutions Pty Ltd
ABN 29 136 782 619
Rear Factory, 39-41 Alexander Ave, Taren Point NSW 2229
Phone: (02) 9524 6136
This document, together with any Schedules provided by the Company to the Customer, whether signed or not, and any Application or other contractual documents signed by the Customer, sets out the terms of the agreement governing all hires, sales and services which the Company may provide to the Customer. The provision or acceptance of a Schedule will not form a separate agreement between the Parties but will form part of this agreement. Any terms contained in any document supplied by the Customer, including any terms on a purchase order, will not form part of the agreement unless the Company agrees.
The Customer is bound by these Terms because the Customer has signed an agreement including or incorporating them; because the Customer has requested a sale or hire of Equipment or the provision of Services after being given a copy of these Terms; because the Customer took delivery of Equipment (whether or not a Schedule was signed); or because the Customer agreed to be bound by these terms when making an Application.
The Company may in its absolute discretion terminate this agreement and/or decline to sell or hire further Equipment or provide further services to the Customer at any time. However this does not affect any sale, hire or services which the Company has already agreed to provide.
The Company may amend these Terms from time to time by giving the Customer notice of the amendment. Notice is deemed given (whether or not actually received by the Customer) when the Company does any of the following: (a) send notice of the amendment to the Customer at any address (including an email address) supplied by the Customer; (b) publish the amended terms on the Company website www.totalaccesssolutions.com.au or (c) display the amended terms at premises from which the Company conducts its operations. However such an amendment does not affect any sale, hire or services which the Company has already agreed to provide before notice was given.
In this document, the following definitions will apply:
Account Facility means any billing arrangement agreed between the Parties.
Application means any application for an Account Facility of which these Terms form part.
Authorised Person means any person authorised by the Customer, or who reasonably appears to the Company to be authorised by the Customer, to accept delivery of Services or Equipment, to use the Equipment or to carry out dealings in relation to these Terms.
Business Day means a day other than a Saturday, Sunday or public holiday in Sydney, New South Wales.
Commencement Date means the date of commencement of the Hire Period determined in accordance with clause 3.1.
Company means Total Access Solutions Pty Ltd ACN 136 782 619 or any Related Body Corporate and their successors and assigns.
Customer means the person hiring Equipment from the Company including where relevant that person’s employees, agents, contractors and Authorised Persons.
Encumbrance means any charge, mortgage, hypothecation, lien or other security interest and includes a ‘security interest’ as defined in the PPSA.
Equipment means any equipment sold or hired to the Customer under this document, including scaffolding and rope access equipment and any associated or attached tools, accessories and parts available for sale or hire, and which may include equipment made available to the Company from other hire businesses.
Hire Charges means the rates and charges payable by the Customer for the hire of the Equipment, as set out in the Schedule or otherwise agreed between the Parties.
Hire Period means the period described in clause 3.
Governmental Agency means a government or governmental, semi-governmental, administrative, fiscal or judicial body, department, commission, authority, tribunal, agency, or entity whether foreign, federal, state, territory or local.
Indirect Loss means any one or more of the following:
(a) economic loss, loss of actual or anticipated profits, loss of revenue, loss of savings, loss of production, loss of business, loss of opportunity, loss of access to markets, loss of goodwill, loss of reputation, loss of credit, loss of publicity, loss of data, loss of use, loss of interest or loss arising from business interruption; and
(b) any special, indirect, consequential, incidental, punitive, exemplary or unforeseeable loss or any similar loss.
Insolvency Event means if a Party enters into bankruptcy, provisional liquidation, liquidation, receivership, receiver and managership, voluntary administration or if a controller (as defined in the Corporations Act 2001 (Cth)) is appointed to a Party or if a mortgagee takes possession of any assets of a Party whether by itself or by an agent or if a Party ceases to trade or is unable to pay its debts as they fall due or if a Party makes a compromise with its creditors or enters into a scheme of arrangement.
Intellectual Property Rights means all present and future intellectual, industrial or proprietary rights conferred by statute, at common law or in equity anywhere in the world, whether issued or pending, registered or unregistered, including all forms of copyright, patents, trade marks, designs, trade secrets, know-how, confidential information and circuit layouts.
Minimum Hire Period means the minimum Hire Period (if any) set out in the Schedule.
Off-Hire Date means the date when:
(a) the Hire Period has ended and the Equipment has been returned to the Company’s branch from which the Equipment was supplied; or
(b) the Company’s branch from which the Equipment was supplied confirms with the Customer in writing that the Equipment is no longer required and the Equipment is actually available for collection.
Parties refers to the Company and the Customer.
PPSA means the Personal Property Securities Act 2009 (Cth).
Purchase Price means the amount payable to the Company by the Customer for the sale of any Equipment, as set out in the Schedule , invoice or quote.
Related Body Corporate has the meaning given to that term in the Corporations Act 2001 (Cth).
Schedule means the document provided by the Company to the Customer, including a quotation or tender proposal, which includes details of the Equipment the Customer intends to purchase or hire, the Hire Charges or Purchase Price and any other applicable charges, the Commencement Date, the Minimum Hire Period (if any), the address for delivery of the Equipment and any other information the Company may require.
Services means services provided by the Company to the Customer, including delivery, collection, erection, movement and dismantling of Equipment, and provision of rope access services and any other services agreed between the Parties from time to time.
Terms means these terms, as amended from time to time.
In this document, unless the context otherwise requires:
(a) words denoting any gender include all genders;
(b) headings are for convenience only and do not affect interpretation;
(c) the singular includes the plural and vice versa;
(d) any schedule attached to this document forms part of it;
(e) a reference to a Party includes its legal personal representatives, successors and permitted assigns;
(f) a reference to a person includes a corporation, trust, partnership, unincorporated body or other entity, whether or not it comprises a separate legal entity;
(g) a reference to a statute or other law includes regulations and other instruments under it and consolidations, amendments, re-enactments or replacements of any of them;
(h) an obligation or liability assumed by, or a right conferred on, two or more persons binds or benefits them jointly and separately;
(i) no rule of construction applies to the disadvantage of a Party because that Party was responsible for the preparation of, or seeks to rely on, this document or any part of it;
(j) unless expressly stated to be otherwise, the meaning of general words is not limited by specific examples introduced by ‘including’, ‘for example’ or similar inclusive expressions; and
(k) a reference to this document means this document and includes any variation or replacement of this document.
The Company may agree to hire Equipment to the Customer for the Hire Period on the terms of this document.
3 Hire Period
3.1 Unless otherwise agreed in writing, the Hire Period commences on the earlier of the following:
(a) when the Customer takes possession of the Equipment;
(b) if the Customer requests delivery and collection of the Equipment, the time the Company delivers the Equipment to the address in the Schedule; or
(c) the Commencement Date specified in the relevant Schedule.
3.2 The Hire Period is for an indefinite term, includes weekends and public holidays and, subject to clause 3.3, ends when the Equipment is back in the Company’s control or possession.
3.3 If the Company does not have, at the Commencement Date and within 20 Business Days of this document, a registration under the PPSA ensuring a perfected first priority security interest in the Equipment, the Hire Period (including any extension or the aggregate of consecutive Hire Periods during which the Customer has substantially uninterrupted possession) will despite anything else in this document or any Schedule be one day shorter than the applicable threshold period for a PPS lease under the PPSA in respect of the hire.
4.1 The Company may agree to sell Equipment to the Customer.
4.2 Unless otherwise agreed in writing, the Customer must pay the Purchase Price before delivery.
4.3 Risk in Equipment sold by the Company passes on delivery to the Customer. If the Customer fails to take possession of the Equipment within seven days of being notified that the Equipment is ready for delivery:
(a) the risk in the Equipment passes to the Customer at the end of the seven day period;
(b) The Customer must pay for the Equipment in accordance with these Terms; and
(c) The Customer will compensate the Company against all losses and expenses incurred by the Company, including any additional transport and storage charges, as a result of that failure.
4.4 The Company remain the legal and beneficial owner of all Equipment sold by the Company to the Customer until all amounts owing in respect of the Equipment and all other amounts owing by the Customer to the Company on any other account have been paid to the Company in cleared funds. Until that payment is received, the Customer must hold the Equipment as the Company’s fiduciary bailee and ensure that it is identifiable as the Company’s property.
4.5 The Customer grants the Company an irrevocable licence to enter at any time the Customers premises, or any other premises under the Customers control, for the purposes of repossessing the Company’s Equipment.
In connection with any hire or separately, the Company may agree to provide Services to the Customer if requested by the Customer. The Services may be described in a Schedule or separately.
6.1 The Customer agrees to pay the Company the Hire Charges for the hire of the Equipment by the due date stated in the Company’s invoice or if no date is stated or otherwise agreed within seven days of invoice.
6.2 The Customer will be charged for the hire of Equipment for the full Hire Period until the Off-Hire Date, whether or not the Equipment is used at any point during that Hire Period. Unless otherwise agreed in writing, the Customer must continue to pay the Hire Charges and other charges until the Equipment is returned. This obligation survives termination of the agreement.
6.3 If the Customer returns the Equipment before the expiry of its Minimum Hire Period, the Customer is required to pay all Hire Charges in respect of the Minimum Hire Period.
6.4 The Company may charge additional Hire Charges for periods during which:
(a) the Equipment is being delivered to or collected from the Customer;
(b) the Company is unable to deliver or collect the Equipment because the Customer has not done what is necessary on its part to receive the Equipment.
The imposition of these additional Hire Charges does not mean that the Company agrees to extend the Hire Period.
6.5 In addition to the Hire Charges and the Purchase Price (if applicable), the Customer must compensate the Company for and pay to the Company:
(a) costs for any trade materials the Company supplies to the Customer;
(b) charges for Services as quoted by the Company to the Customer or otherwise agreed by the Customer or, failing that, the Company’s generally applicable charges for those Services;
(c) any costs of repairing or replacing damaged or missing hired Equipment or cleaning hired Equipment;
(d) any costs incurred in recovering Equipment whether abandoned, unlawfully detained or otherwise not returned in accordance with this document;
(e) interest on all outstanding amounts calculated from the due date for payment and accruing monthly thereafter until the date of payment at a rate of 1.25% per calendar month;
(f) any GST or similar tax imposed on any supply by the Company to the Customer under this document and any other state or federal taxes, duties or charges imposed in respect of this document including stamp duty; and
(g) all costs and expenses incurred by the Company related to the Customer’s use of the Equipment or any default by the Customer.
6.6 Any requests for credit by the Customer must be made prior to delivery of the Equipment. The Customer acknowledges that the Company has no obligation to grant any such request for a credit account.
6.7 In the event that the Customer fails to make any payment payable pursuant to these Terms within the payment terms or breaches any of the warranties, obligations or agreements, the Customer will be in default of the Terms.
6.8 If the Customer defaults in payment of any invoice due and payable, the Customer must reimburse and indemnify the Company from and against all expenses, costs and disbursements incurred by the Company in pursuing the debt including all reasonably charged legal costs on a “solicitor and own client” basis and the fees charged to the Company by any mercantile agency. If the Customer fails to pay any amount by the due date, the Company may at its sole discretion:
(a) cancel any provision of credit to the Customer;
(b) reverse any rebates or discounts allowed;
(c) change credit payment terms including by requiring cash pre-payment for any further Equipment to be supplied to the Customer;
(d) provide details of the payment default to a credit reporting agency;
(e) commence legal proceedings against the Customer (and any guarantors) for all outstanding amounts, interest and costs;
(f) decline to supply Equipment to the Customer and terminate this and any other agreement with the Customer; and
(g) exercise any other rights at law including pursuant to the PPS Act.
6.9 A certificate of debt signed by a representative of the Company prepared with due care and from appropriate records will be prima facie evidence and proof of money owing by the Customer to the Company at the time of the certificate.
6.10 The Company reserves the right to revise its Hire Charges, Purchase Prices, charges for Services and related charges without prior notice. The Company may also revise those charges and prices in the case of genuine error on the Company’s part or in circumstances where the Company incurs expenses as a result of non-disclosure by the Customer or unforeseen site problems.
7 What The Customer agrees
7.1 The Customer agrees that:
(a) the Customer has not relied on any representation made by the Company or on the Company’s behalf about the suitability of the Equipment for any purpose or its selection or performance and that any opinion or assistance offered by the Company or on the Company’s behalf is based on limited information and, subject to clause 10, the Company disclaims all liability in respect of that opinion or assistance;
(b) if the Company is unable to supply the Equipment to the Customer, the Company may in the Company’s discretion supply alternative suitable equipment to the Customer and, subject to clause 10, if the alternative equipment is not suitable, the Company will not be liable for any claims arising out of our inability to supply the Equipment or alternative suitable equipment to the Customer;
(c) all Equipment is hired or purchased and used by the Customer at the Customers sole risk and, subject to clause 10, the Company will not be liable to the Customer for any loss the Customer may incur for any reason, including any fault or other defect in the Equipment;
(d) the Customer requires the Account Facility predominantly for the purposes of carrying on or in connection with the carrying on or establishment of a trade, business or profession;
(e) if the Company approves an Account Facility, the Company may terminate the Account Facility at any time without any prior notice;
(f) the full amount of all charges payable by the Customer to the Company under an Account Facility will become due and payable 14 days after the date on which the charges were first invoiced;
(g) the Account Facility is not a credit facility;
(h) the Company is entitled to assume that anyone appearing to be an Authorised Person is authorised to sign a Schedule and enter into any dealings in respect of these Terms;
(i) the Customer accepts delivery of the Equipment in an ‘as is’ condition unless the Customer indicates otherwise at the time of delivery;
(j) the Company owns the Equipment and in all circumstances the Company retains title to all Equipment hired to the Customer and the Customers rights to use the Equipment are as a bailee only;
(k) in no circumstances will the Equipment be deemed to be a fixture;
(l) the Customer understands the safe and proper use of the Equipment and has received adequate training in its operation and use;
(m) the Company may inspect, maintain, repair or (in the event of any default by the Customer) remove the Equipment at any time during the Hire Period and access to the Equipment must be granted for that purpose;
(n) it is the Customers responsibility to collect and return the Equipment, but the Company may agree to collect or return the Equipment as a Service;
(o) the Customer must arrange for labour necessary to load and unload the Equipment and, if the Customer or the Customers Authorised Persons are not at the delivery site, the Company may elect to unload the Equipment, which will be at the Customers risk from the time of delivery;
(p) if the Company is collecting the Equipment at the expiry or earlier termination of the Hire Period, the Equipment must be left in an appropriate, easily identified and accessible area; and
(q) the Company will not be deemed to have accepted return of the Equipment in good repair and condition until the Equipment has been fully inspected by the Company following its return.
8 The Customer’s obligations
8.1 The Customer must:
(a) ensure that the Customer or an Authorised Person is available to accept the Equipment on delivery;
(b) before accepting delivery of the Equipment, satisfy itself as to the Equipment and as to the suitability, condition and fitness for purpose of the Equipment for the purpose the Customer intends to use it for;
(c) ensure the Equipment is used:
(i) for the purpose for which it was designed by the manufacturer;
(ii) only by the Customer or an Authorised Person having the appropriate qualifications, training and licences to use the Equipment in a safe and proper manner; and
(iii) strictly in accordance with all applicable laws and regulations in a skilful and safe manner not extending beyond its capacity (having regard to the manufacturer’s specifications) and not having to endure more than normal wear and tear;
(d) at all times comply with any relevant occupational health and safety requirements and legislation in connection with the use of the Equipment.
(e) be responsible for obtaining all necessary or requisite approvals from any Governmental Agency or any other authority.
(f) in relation to scaffolding equipment:
(i) be responsible for ensuring that the supply authority de-energises and/or insulates all power, telephone and data cables in accordance with all Governmental Agency by-laws and regulations before erection of the scaffolding equipment;
(ii) not allow any person other than an Authorised Person who is suitably trained and qualified, to remove or dismantle any scaffolding;
(iii) ensure that the surface on which the scaffolding is erected maintains adequate load bearing capacity to support the scaffolding;
(iv) allow the Company, on request, to enter the Customer’s premises and inspect the erected scaffolding structure from time to time during the Hire Period;
(v) if the Company or SafeWork NSW considers that the scaffolding has been moved, tampered with or dismantled in a manner which renders it unsafe, not allow anyone access to the scaffolding until the Company has reinstated or repaired the scaffolding structure, and to pay the day labour and material costs incurred by the Company in relation to that reinstatement or repair;
(g) in relation to rope access services:
(i) ensure the Company has clear and free access to the work site at all times to enable the Company to undertake the agreed Services;
(ii) provide a safe working environment for the Company’s personnel engaged to carry out the rope access services;
(h) properly display all operating or safety signs and instructions (as required by law) supplied with the Equipment and ensure that all operating or safety signs and instructions are clearly visible, and observed by all users of the Equipment;
(i) if any Equipment malfunctions, is damaged or becomes unsafe to use during the Hire Period, to immediately stop using the Equipment and notify the Company;
(j) not repair or attempt to repair the Equipment without the Company’s prior written consent;
(k) properly maintain and clean the Equipment in accordance with the Company’s instructions during the Hire Period;
(l) return the Equipment to the Company in good clean repair and condition and in accordance with the Company’s instructions before the end of the Hire Period;
(m) maintain insurance throughout the Hire Period to cover the full value of the Equipment;
(n) at the Customer’s expense, clean and provide daily maintenance for the Equipment as detailed in the operator’s manual and in compliance with the requirements of the Company;
(o) not transfer, assign, lend, sell, lease, hire, bail, give possession of or create an Encumbrance over the Equipment or, except for the purpose of returning the Equipment to the Company, remove the Equipment or allow it to be removed from the site address notified to the Company without the Company’s prior written consent;
(p) not alter, remove, deface or erase any identifying mark, plate, number, notices or safety information on or in the Equipment or interfere with the Equipment in any other manner;
(q) store the Equipment safely and securely and protected from theft, seizure, loss or damage; and
(r) compensate the Company for:
(i) any loss, theft or damage to the Equipment;
(ii) all Hire Charges for that portion of the Hire Period during which the Equipment is being recovered, repaired or replaced; and
(iii) any liability, claims, damage, loss, costs and expenses (including without limitation, legal fees costs and disbursements on a full indemnity basis) in respect of any injury or damage to persons or property arising out of the Customer’s use of the Equipment (whether or not the Equipment was being operated or transported by the Company’s employee or any other person for whose acts the Company is or may be held responsible), and maintain adequate insurance to cover all such liabilities.
9.1 This clause applies to the extent that the Company’s interest in respect of a hire or sale of Equipment is a ‘security interest’ for the purposes of the PPSA.
9.2 The Company may register any actual, impending or likely security interest. The Customer may not make any claim against the Company in respect of any registration even if it is determined that the Company should not have registered a security interest. The Customer must do anything (such as obtaining consents and signing documents) which the Company requires for the purposes of ensuring that the Company’s security interest is enforceable, perfected, first in priority and otherwise effective under the PPSA.
9.3 The Company’s rights under this document are in addition to and not in substitution for the Company’s rights under other law (including the PPSA) and the Company may choose whether to exercise rights under this document or under such other law (or both) as the Company sees fit.
9.4 To the extent that:
(a) section 115 of the PPSA permits the Company and the Customer to contract out of any provision of Chapter 4 of the PPSA; and
(b) such a provision requires the Company to give a notice, allow time, give an account, or allow reinstatement or similar rights to the Customer in connection with enforcement,
The Company and the Customer agree that all such provisions are contracted out of.
9.5 Provisions of Chapter 4 of PPSA confer rights on the Company. The Customer agrees that in addition to those rights, the Company will, if there is default by the Customer, have the right to seize, purchase, take possession or apparent possession, retain, deal with or dispose of any goods, not only under those sections but also, as additional and independent rights, under this document, and the Customer agrees that the Company may do so in any manner the Company sees fit including (in respect of dealing and disposal) by private or public sale, lease or licence.
9.6 The Customer waives the Customers rights to receive a verification statement in relation to registration events in respect of commercial property under section 157 of the PPSA. This waiver also extends to any verification statement in respect of security interests arising or provided for under security documents before the date of this document.
9.7 The Company and the Customer agree not to disclose information of the kind that can be requested under section 275(1) of the PPSA. The Customer must do everything necessary on the Customers part to ensure that section 275(6)(a) of the PPSA continues to apply. The agreement in this sub-clause is made solely for the purpose of allowing the Company the benefit of section 275(6)(a) and the Company will not be liable to pay damages or any other compensation or be subject to injunction if the Company breaches this sub-clause.
9.8 If the Company gives consent to any sub-hire:
(a) the sub-hire agreement must be in writing in a form acceptable to the Company and must be expressed to be subject to the Company’s rights under this document;
(b) The Customer may not vary the sub-hire agreement without the Company‘s prior written consent;
(c) The Customer must ensure that the Company is provided at all times with up-to-date information about the sub-hire including the identity of the sub-Customer, the terms of and state of accounts and payment under the sub-hire and the location and condition of the Equipment;
(d) The Customer must take all steps including registration under the PPSA as may be required to:
(i) ensure that any security interest arising under or in respect of the sub-hire is enforceable, perfected and otherwise effective under the PPSA;
(ii) enable the Customer to gain (subject always to the Company’s rights) first priority (or any other priority agreed to by the Company in writing) for the security interest; and
(iii) enable the Company and the Customer to exercise our respective rights in connection with the security interest.
9.9 To assure performance of the Customers obligations, the Customer give the Company an irrevocable power of attorney to do anything the Company considers the Customer should do under this document.
9.10 The Customer must reimburse to the Company all costs incurred by the Company in exercising its rights under this clause.
10 Limitation of liability
10.1 Nothing in this document is or should be interpreted as an attempt to modify, limit or exclude any right or remedy, or any guarantee, term, condition, warranty, undertaking, inducement or representation, implied or imposed by legislation which cannot be modified, limited or excluded.
10.2 The Company excludes to the extent permitted by law all other guarantees, terms, conditions, warranties, undertakings, inducements or representations whether express or implied, statutory or otherwise, which would otherwise be implied into this document concerning the activities covered by this document.
10.3 The Customer agrees that the Customer does not rely on any guarantee, term, condition, warranty, undertaking, inducement or representation made by the Company or on its behalf which is not expressly stated in this document.
10.4 Where any legislation implies or imposes a guarantee, term, condition, warranty, undertaking, inducement or representation in relation to this document and the Company is not able to exclude that guarantee, term, condition, warranty, undertaking, inducement or representation (Non-Excludable Provision), and the Company is able to limit the Customers remedy for a breach of the Non-Excludable Provision, then the Company’s liability for breach of the Non-Excludable Provision is limited to (at the Company’s election):
(a) in the case of goods, the repair or replacement of the goods or the supply of equivalent goods (or the payment of the cost of doing so); and
(b) in the case of services, the supplying of the services again (or the payment of the cost of doing so).
10.5 Subject to the Company’s obligations under the Non-Excludable Provisions and clause 10.6, the Company’s maximum aggregate liability to the Customer in respect of any one claim or series of connected claims under this document or in connection with its subject matter, whether arising in or for breach of contract, negligence or other tort, breach of statutory duty, or otherwise is limited to an amount equal to the minimum Hire Charges paid by the Customer to the Company during the 12 month period before the event giving rise to the claims.
10.6 Subject to the Company’s obligations under the Non-Excludable Provisions, the Company is not liable to the Customer or any third party for any Indirect Loss arising in connection with this document or its subject matter, whether arising in or for breach of contract, negligence or other tort, breach of statutory duty, breach of warranty or guarantee or otherwise and whether or not that loss was foreseeable, even if the Company has been advised of the possibility of such loss.
11 Default and termination
11.1 The Customer will be in default of this document if the Customer:
(a) fail to comply with any term of this document or any other agreement between the Parties; or
(b) is subject to an Insolvency Event.
11.2 If the Customer is in default, then, without prejudice to any other rights and remedies:
(a) The Company may immediately terminate any hire or purchase of Equipment or the provision of Services between the Parties and take possession of the Equipment by entering onto any land or premises owned by the Customer or under the Customers control on which the Equipment is situated; and
(b) The Customer will compensate the Company for and pay to the Company all losses, damages, costs and other expenses suffered by the Company as a result of that default, including any costs of recovering possession of the Equipment.
11.3 The Customer acknowledges that the Company may hire or lease the Equipment hired to the Customer from a third party and that, in that event, title to the Equipment remains with that third party. The Customer agrees that:
(a) on reasonable notice, the Customer must allow that third party to access the location where the Equipment is located from time to time to inspect the Equipment; and
(b) if the Company’s agreement with that third party terminates during the Hire Period, then, unless otherwise agreed by the Company, any hire under this document will automatically terminate and the Company may immediately recover possession of the Equipment from the Customer, with no liability to the Customer in respect of that termination or recovery.
12 Privacy consent
(a) to obtain a consumer credit report about the Customer, The Customers guarantors, directors or proprietors;
(b) to allow the credit reporting agency to create or maintain a credit information file containing information about the Customer, The Customers guarantors, directors or proprietors;
(c) for registration on the PPSR or other public records or registers; and
(d) to obtain commercial credit information about the Customer, The Customers guarantors, directors or proprietors from a credit reporting agency.
13.1 The Company may serve any notice or court document on the Customer by hand or by prepaid post to The Customers address last known to the Company or by email to an email address supplied by the Customer. Any such notice is taken to be duly given and received:
(a) if delivered by hand, when delivered;
(b) if delivered by prepaid post, two Business Days after being deposited in the mail with postage prepaid; or
(c) if delivered by email, on the day of dispatch provided that no notice of non-delivery is received.
13.2 The Company is entitled to set off against any amount the Company owes the Customer any amount owed to the Company by the Customer or any amount owed to the Company by any of the Customers Related Bodies Corporate.
13.3 Except as expressly provided to the contrary in this document, a Party may give or withhold an approval or consent in that Party’s absolute discretion and subject to any conditions determined by the Party. A Party is not obliged to give its reasons for giving or withholding a consent or approval or for giving a consent or approval subject to conditions.
13.4 This document records the entire agreement between the Parties in relation to its subject matter. It supersedes all prior contracts, arrangements, understandings or negotiations by, or between, the Parties in relation to the subject matter of this document.
13.5 The failure, delay or omission by a Party to exercise, or to partially exercise, a right, power or remedy under these Terms (or any connected agreement) does not operate as a waiver of that right, power or remedy. A Party which exercises, or partially exercises, a right, power or remedy maintains its right to further exercise the same right, power or remedy or to exercise another right, power or remedy. A Party waives a right, power or remedy only by explicitly doing so in a written notice to the other Party and the waiver is strictly limited to the matters specified in the notice.
13.6 The rights, powers, authorities, discretions and remedies of a Party under this document do not exclude any other right, power, authority, discretion or remedy.
13.7 If any provision of this document is determined by a court or other competent tribunal or authority to be illegal, invalid or unenforceable then:
(a) where the offending provision can be read down so as to give it a legal, valid and enforceable operation of a partial nature it must be read down to the extent necessary to achieve that result;
(b) where the offending provision cannot be read down then that provision must be severed from the document in which event, the remaining provisions of this document operate as if the severed provision had not been included; and
(c) the legality, validity or enforceability of that provision in any other jurisdiction or of the remaining provisions in that or any other jurisdiction is not affected,
but only to the extent that is consistent with giving substantial effect to the intentions of the parties under this document.
This document (and each connected agreement) is governed by the law of New South Wales. Each party submits to the jurisdiction of the courts in New South Wales in connection with matters concerning this document and any connected agreement.