Terms & Conditions

Terms & Conditions

1. DEFINITIONS

In these terms and conditions:

Agreement means this document and the terms and conditions contained herein which shall apply to each and every transaction conducted between You and Us.

Business Day means a day that is not a Saturday, Sunday, bank holiday or public holiday in Victoria, Australia.

Charged Property means all rights, property, title, estate and interest of whatever kind and wherever situated, and whether present or future, in any freehold or leasehold property, and/or real estate and in any Land which the guarantor(s) now have or may hereafter have.

Equipment means the scaffolding equipment described in the Price List, as well as all accessories and other equipment as determined by Us from time to time.

Force Majeure Event means any event outside a party’s reasonable control which makes it impossible for a party to perform its obligations under this Agreement (other than a payment obligation), and includes (without limitation):

  • a natural disaster including fire, flood, lightning or earthquake;
  • war or other state of armed hostilities (whether war is declared or not), insurrection, riot, civil commotion, act of public enemies, national emergency (whether in fact or in law) or declaration of martial law;
  • epidemic or quarantine restriction;
  • ionising radiation or contamination by radioactivity from any nuclear waste or from combustion of nuclear fuel;
  • confiscation, nationalisation, requisition, expropriation, prohibition, embargo, restraint or damage to property law;
  • law taking effect after the date of this document; and
  • strike, lock-out, stoppage, labour dispute or shortage.

GST has the same meaning as in the A New Tax System (Goods and Services Tax) Act 1999 (Cth).

Guarantor means the individuals specified in Item 2 of Schedule 1.

Insolvency Event means any of these events in relation to You or a Guarantor (each, a party):

  • a party suspends payment of its debts;
  • a party becomes an externally-administered body corporate under the Corporations Act 2001 (Cth);
  • steps are taken by any person towards making the party an externally-administered body corporate (but not where the steps taken consist of making an application to a court and the application is withdrawn or dismissed within 14 days);
  • a controller (as defined in section 9 of the Corporations Act 2001 (Cth)) is appointed of any of the property or any steps are taken for the appointment of such a person (but not where the steps taken are reversed or abandoned within 14 days);
  • the party is taken to have failed to comply with a statutory demand within the meaning of section 459F of the Corporations Act 2001 (Cth);
  • a resolution is passed for the reduction of capital of the party or notice of intention to propose such a resolution is given, without Our prior written consent; or
  • where the party is a natural person, the party becomes bankrupt or enters into any arrangement under Parts IX or X of the Bankruptcy Act 1966 (Cth).

Land means land and includes, but is not limited to, land as defined in the Sale of Land Act 1962 (Vic) and/or its equivalents in the Australia, the Territory or any other state or country within which You or a Guarantor of this Agreement owns Land.

Loss or Claim means, in relation to any person:

  • a damage, loss, cost, expense or liability incurred by the person; or
  • a claim, action, proceeding or demand made against the person,

however arising and whether present or future, fixed or unascertained, actual or contingent.

Minimum Service Fee means an amount equivalent to four (4) hours, charged at the hourly rate set out in the Services Fee.

Minimum Hire Charge means:

  • for aluminum scaffolding, the equivalent of one week’s rental charge for that scaffolding; or
  • for steel scaffolding, the equivalent of four week’s rental charge for that scaffolding.

PPSA means the Personal Property Securities Act 2009 (Cth).

PPSR means the Personal Property Securities Register established and maintained under the PPSA.

Price List means Our list of prices and fees for the Equipment set out in Schedule 2.

Rental Fee means the cost to rent the Equipment, as detailed in Schedule 2.

Rental Period means the period beginning on the date the Equipment is collected or delivered to Your custody, and ending on the date the Equipment is returned or collected by Us. If the Equipment is stolen or damaged beyond repair, the end date will be the date on which the insurance company confirms that it will accept that the Equipment has been stolen or damaged beyond repair.

Security Interest means:

  • in relation to any personal property (as defined in the PPSA and to which the PPSA applies), has the same meaning as in the PPSA; and
  • in relation to any other property, means any security for the payment of money or performance of obligations including a mortgage, charge, lien, pledge, trust or power.

Services means the installation, maintenance and dismantling of scaffolding equipment.

Services Fee means the amount for the Services, as set out in Schedule 3.

We/Us/Our/Ours means Superior Access Solutions Pty Ltd (ACN 613 327 629) of Suite 23, Level 1, 2-14 Station Place, Werribee VIC 3030, and its substitutes, successors, permitted assigns, licencees, franchisees and/or agents.

You/Your/Yours refers to the person, firm, organisation, partnership, corporation, trust or other entity hiring or purchasing Equipment, or obtaining services, from Us, as named in the Credit Application or the Hire Agreement (where You do not hold a Credit Account). The reference to You includes any employees, agents and contractors.

2 RENTAL OF EQUIPMENT
  • We agree to rent the Equipment to You for the Rental Period and You agree to take the Equipment on hire for that period and to pay the rental charge set out in the Price List on the terms and conditions set out in this agreement.
  • You are entitled to use the Equipment for the Rental Period and for any agreed extension of the Rental Period.
  • You agree to return the Equipment to Our address at the end of the Rental Period.
  • You agree and acknowledge that any supply of Equipment will attract Minimum Hire Charges.
3 DELIVERY OF EQUIPMENT
  • We will use our best endeavours to ensure that the Equipment is available for collection by You.
  • At Our sole discretion, and upon request by You, We will deliver the Equipment to You directly.
  • For the purposes of clarity, We will not be responsible for any damage, expense or loss of any kind suffered by You as a result of:
    • a delay in the delivery of any Equipment;
    • damage to or loss of any Equipment in transit, or otherwise caused by a courier or shipping agent in making delivery of the Equipment to You;
    • any act or omission by Us in arranging for the delivery of the Equipment, other than a negligent act or omission by Us which leads directly to the damage, expense or loss suffered; or
    • any damage, expense or loss suffered by the You in collecting the Equipment from Us.
4 RIGHTS IN RELATION TO EQUIPMENT
  • We reserve the following rights in relation to the Equipment until all accounts owed by You to Us are fully paid:
    • subject to, and in accordance with the PPSA, the right to enter Your premises (or the premises of any associated company or agent where the Equipment are located), without liability for trespass or any resulting damage and retake possession of the Equipment; and
    • subject to, and in accordance with, the PPSA, the right to keep any Equipment repossessed pursuant to this clause.
  • Until all accounts owed by You to Us are fully paid, the following applies:
    • if the Equipment is resold, or products manufactured using the Equipment are sold, by You, You will hold such part of the proceeds of any such sale as represents the invoice price of the Equipment sold or used in the manufacture of the Equipment sold in a separate identifiable account as the beneficial property of Us; and
    • You must pay this amount to Us upon request.
  • You accept and acknowledge that it is a material term of this Agreement no one, other than an employee or contractor authorised by Us, may alter, interfere with, or otherwise modify any Equipment provided to You.
  • Where Equipment is altered, interfered with, or otherwise modified by any person other than Our authorised employees or contractors, you agree and acknowledge that we will be entitled to terminate this Agreement immediately for breach, immediately enter your premises to retrieve the Equipment, cease providing all agreed Services, and immediately recover all amounts owed by you.
5 SERVICES
  • We will provide the Services to You in consideration for You paying the Services Fee to Us, subject to the provisions of this agreement.
  • Subject to the availability of the Our staff and agents, and in discussions with You, We will agree the time and place for the performance of the Services.
  • We will use reasonable endeavours to complete the Services by the dates agreed by the Parties.
  • The Services will be performed by the employees or agents that We may choose as most appropriate to carry out the Services.
  • The Services to be performed as agreed by the Parties.
  • We will provide the Services in places and locations as We consider appropriate to the type and nature of Your requirements.
  • You agree and acknowledge that any supply of Services will attract a Minimum Service Fee.
6 USE OF SUBCONTRACTORS

We are permitted to use other persons to provide some or all of the Services.

7 USE OF PERSONNEL
  • If You:
    • make a notice in writing to Us; and
    • have reasonable grounds which have been disclosed and discussed with Us,

You may request that We cease to permit a particular person or persons employed by Us or acting as Our agents to carry out the Services.

  • If You make a request referred to in clause 7(a), We must, as soon as it is practicable:
    • cease to provide the service of the particular person or persons in respect of Your business; and
    • provide the services of an alternative person or persons as may be reasonably acceptable to You.
8 TERMINATION
  • We may terminate this Agreement by mutual agreement in writing or, with immediate effect, by notice in writing to You, if:
    • You breach any of the warranties contained in clause 16;
    • You are subject to an Insolvency Event;
    • You have committed a breach of any term of this Agreement and fail to rectify such breach (if capable of rectification) within 14 days of service of a notice in writing calling upon it to rectify such breach; or
    • You assign the benefit of this agreement without prior consent in writing of the other party.
  • Upon termination of this Agreement by either party, You must immediately make efforts to:
    • Immediately return the Equipment to Us;
    • pay any unpaid amounts owed to Us before the termination of the Agreement.
  • Where the Agreement is terminated as a result of a breach of any obligation or warranty by You, We may elect to prohibit You from continuing to rent any of its Equipment.
  • You acknowledge and accept that You will have no claim for compensation:
    • for any delays, Losses or Claims suffered by it in losing the benefit of the Equipment; and
    • any other claim in respect of any sums which You are liable to pay as a consequence of the termination of this Agreement.
  • Any termination of this agreement will:
    • be without prejudice to any rights which either party may have against the other arising out of, or connected with, this agreement; and
    • not destroy nor diminish the binding effect of this clause.
9 PPSA
  • This agreement is a security agreement.
  • Our interests in the Equipment and all proceeds from the sale of the Equipment by You to a third party is a security interest.
  • You consent to Us registering our security interest on the Personal Property Securities Register and agree to provide all assistance reasonable required by Us to facilitate registration.
  • You agree not to in any way assign, charge, lease or otherwise deal with, or create, a security interest over, the Equipment.
  • You waive your rights to receive any notice under PPSA (including notice of verification statement) unless the notice is required by the PPSA and cannot be excluded.
  • The Parties agree this Agreement and all related information and documents are confidential (Confidential Information). The Confidential Information will not be disclosed, except to the extent disclosure is permitted or required by this agreement or by law. The Parties agree that We will not disclose Confidential Information pursuant to a request under section 275(1) of the PPSA.
  • Unless the Equipment is used predominantly for personal, domestic or household purposes, the Parties agree each of the following requirements or rights under the PPSA do not apply to the enforcement of Our security interest in the Equipment or of this Agreement:
    • any requirement for the Us to give You a notice of removal of accession;
    • any requirement for Us to give You a notice of the Our proposed disposal of the Equipment;
    • any requirement for Us to include in a statement of account, after disposal of the Equipment, the details of any amounts paid to other secured parties;
    • any requirement for Us to give You a statement of account if We do not dispose of the Equipment;
    • any right You have to redeem the Equipment before We exercise a right of disposal; and
    • any right You have to reinstate this agreement before We exercise a right of disposal of the Equipment.
  • Expressions defined in the PPSA have the same meaning when used in this Agreement.
10 GUARANTEE
  • The Guarantor(s) (joint and severally if there is more than one):
    • unconditionally guarantees to Us the due performance and due observance of Your obligations under this Agreement including without limitation the payment of all amounts payable under it;
    • warrants that it will pay Us on demand all money which it defaults in paying;
    • indemnifies Us in relation to all costs, loss, expenses, damages, accounts or other sums incurred by Us or which We become liable to pay as a result of or in relation to any default by You under or in relation to this Agreement.
  • Where You, your directors or authorised representatives provide a guarantee under this Agreement, each of these parties agree that the guarantee is cross-guaranteed by each guarantor.
  • Your liability, and those of your directors and authorised representatives, is not discharged, impaired or otherwise affected by:
    • the amendment or variation of this Agreement;
    • any release, discharge or waiver of any breach of any of Your obligations in this Agreement;
    • the granting by Us of any time, forbearance, concession or indulgence to You in respect of any of its obligations under this Agreement;
    • the winding up or dissolution of You;
    • the unenforceability in whole or in part of the guarantees and indemnities in this Agreement against any one or more of Your directors or authorised representatives;
    • any other act, event, or omission which but for this provision might operate to impair or discharge Your liability, or of Your directors, authorised representatives and any employees or agents under this Agreement.
  • Any demand made by Us under this Agreement may be made to Your director or authorised representative at his or her address in writing.
  • The guarantees and indemnities contained in this clause are:
    • both prospective and retrospective in nature;
    • principal obligations and are not ancillary or collateral to any other obligation pursuant to this Agreement; and
    • fully enforceable without Us having to take any step whatsoever against You, you directors, authorised representatives, employees and agents, or otherwise, even if all or any one or more of the obligations shall be declared to be unenforceable in whole or in part whether by reason of statute or otherwise.
  • Where a guarantor is subject to an Insolvency Event, a guarantor will still be liable where a preference payment has been recovered by a liquidator or trustee in bankruptcy.
  • A failure by one guarantor to be bound by the guarantees contained herein does not affect the obligations of any other guarantors that are bound.
  • The guarantees and indemnities contained in this clause are intended to survive the termination of this Agreement, except otherwise explicitly agreed by all parties in writing.
11 CHARGE
  • By executing a guarantee pursuant to this agreement, each Guarantor grants to Us a charge over all of the Charged Property in order to secure any amounts owing under this agreement.
  • Each Guarantor must:
    • do all things reasonably required;
    • execute all documents necessary;
    • carry out all duties and obligations contained within this agreement with the requisite diligence, and without unnecessary delay,
    • to allow Us to effect a charge over any Charged Property.
  • The Guarantors irrevocably authorise Us to lodge a caveat over any or all of the Charged Property, noting Our interests so as to prevent any dealings on the title of that Charged Property until any amounts outstanding have been repaid in full.
12 INDEMNITIES
  • You are liable for and agree to indemnify, defend and hold Us harmless for and against any and all claims and losses arising from loss, damage, liability, injury to Us, our employees and third parties, actions and expenses, including costs of litigation and reasonable legal costs, resulting directly or indirectly from:
    • any information provided to Us that is not accurate, up to date or complete or is misleading or a misrepresentation;
    • any breach of this Agreement;
    • any damage to or loss of Equipment, including missing components and parts; and
    • any misuse of the Equipment by the Your customers, employees, contractors, agents or authorised representatives.
  • You agree to cooperate with the Us (at your own expense) in the handling of disputes, complaints, investigations or litigation that arise under this Agreement including but not limited to disputes, complaints, investigations or litigation that arise out of or relate to incorrect information provided by You.
13 EXCLUSION OF LIABILITY
  • To the fullest extent permitted by law, We exclude all liability arising from any express or implied representations, conditions, guarantees or terms relating to this Agreement provided by it. This exclusion of liability includes, but is not limited to:
    • implied or express guarantees, representations or conditions of any kind, which are not stated in the Agreement; and
    • any loss, damage, costs including legal costs, or expense whether direct, indirect, incidental, special, consequential, including loss of profits, revenue, production, opportunity, access to markets, goodwill, reputation, use or any indirect remote, abnormal or unforeseeable loss, or any loss or damage relating to business interruption, or otherwise, suffered by You or claims made against You, arising out of or in connection with this Agreement, even if the We expressly advised of the likelihood of such loss or damage.
14 PAYMENT
  • You must pay all amounts required by Us providing the Goods and Services, as set out in any tax invoice supplied by Us to You.
  • We may, in our sole discretion, require that you pay some or all of the price of supply of Goods and Services upfront. We reserve the right to withhold supply of those Goods and Services until this payment is made in full.
  • All amounts stated in this Agreement and any tax invoice provided by Us are in Australian dollars, and do not include GST, unless otherwise stated.
  • The price of the supply of Goods and Services may be varied from time to time by Us in writing.
  • You agree to pay the Our tax invoices no later than two weeks following receipt of that tax invoice. If a tax invoice is unpaid for more than 14 Business Days after the due date, We are entitled to cease providing any Goods or Services to You until we receive payment in full.
  • We may charge interest at a rate of 1.5% per month on any unpaid amounts owing.
  • If a tax invoices is unpaid for 14 Business Days after the due date, We have the right to engage debt collection services for the collection of unpaid and undisputed debt, and the right to commence legal proceedings for any outstanding amounts owed.
  • Where it is necessary for Us to engage debt collection services or commence legal proceedings, You accept and acknowledges that you will be liable for the cost of those services and/or proceedings. The purposes of clarity, this will include a liability to meet all solicitors’ and barristers’ fees, and all other fees or costs associated with those services and/or proceedings.
  • In the event that any prices in the supply of either the Goods or Services are amended, the changes to those prices will apply from the date that you are notified of those amendments.
  • Where any Equipment is lost, including any component or part of that Equipment, and is subsequently found, We will reimburse you for any costs incurred in replacing the lost Equipment with a credit note of equivalent value.
15 DISPUTE RESOLUTION
  • A party to this agreement may not commence legal proceedings, except proceedings seeking urgent interlocutory relief, in respect of any disputes in relation to this agreement without first complying with the dispute resolution procedures in this clause.
  • If a dispute arises between the parties, then the parties undertake in good faith to use all reasonable endeavours to settle the dispute by negotiation.
  • If the dispute is not settled by the parties in accordance with clause 15(b) within a reasonable time of notification of dispute by either party, then the parties must endeavour to settle the dispute by mediation using the following process:
    • either party can send notification to the other party stating that the dispute has not been resolved and therefore the dispute should be referred to mediation; and
    • within 14 days of receipt of notice under clause 15(c)(i), the parties agree to select a mediator and, if none can be agreed, then the parties agree to the appointment of the mediator by the Resolution Institute.
  • The parties will share the cost of the mediator equally but will each be responsible for their own costs of mediation.
  • If the dispute cannot be resolved in accordance with clause 15(c), either party may, by notice in writing of not less than 14 days to the other, refer the dispute to legal action. Service of a notice under this clause 15(e) is a condition precedent to the commencement of any litigation proceedings in respect of such dispute.
  • This clause survives termination of the agreement.
16 YOUR WARRANTIES

You warrant that:

  • all particulars provided to Us are correct in every respect and are not misleading in anyway including, without limitation, by omission;
  • that it has all necessary insurances in place in respect of the Equipment and any harm or damage that the Equipment may cause;
  • You will not breach any restriction in relation to or in connection with, the Equipment;
  • in selecting the Equipment You have not relied on Our skill and judgment or on any representations made by or on behalf of Us and agree that the Equipment comply with their description, are in merchantable condition and are fit for the Your purpose.
17 YOUR OBLIGATIONS
  • During the hiring of Equipment, You will:
    • keep the Equipment in first class condition and only use them as they would be used by a careful and prudent supplier;
    • not use the Equipment for any illegal purpose;
    • report any damage to, or loss of, the Equipment to Us immediately such damage or loss occurs;
    • be liable for any breach of this agreement committed by Your servants or agents; and
  • indemnify Us for any loss (including legal costs) incurred by You in relation to any breach of this agreement and for any liability arising out of any such breach.
  • During the performance of the Services You will:
    • co-operate with the Us as we reasonably require;
    • provide the information and documentation that We reasonably require;
    • ensure that Your staff and agents cooperate with and assist Us; and
    • ensure that if You do not provide the Facilities that We reasonably require (and within the time period) to perform the services, then additional costs and expenses which are reasonably incurred by Us will be paid by You
18 INSURANCES

We must take out all insurance required by law including:

  • worker’s compensation insurance as prescribed by law for Our Personnel; and
  • public liability insurance for a minimum of an amount to be agreed for each occurrence.
19 REPOSSESSION

We may retake possession of the Equipment if the You breach any provision of this agreement.

20 TITLE TO EQUIPMENT

You acknowledge that We retain title to the Equipment and that You have rights to possess the Equipment as a mere bailee only. You do not have any right to pledge the Our credit in connection with the Equipment and agree not to do so. You also agree not to agree, attempt, offer or purport to sell, assign, sub-let, lend, pledge, mortgage let on hire or otherwise part with or attempt to part with the personal possession session of or otherwise deal with the Equipment and not to conceal or alter the Equipment or make any addition or alteration to, or repair of, the Equipment.

21 NON-SOLICITATION
  • Throughout the term of this Agreement and thereafter, You must not:
    • canvass, solicit or endeavour to entice from Us:
      • any person or organisation that was a client or supplier of Ours;
      • any employee, contractor, or agent of Ours;
    • interfere or seek to interfere with the relationship between Us and Our clients, suppliers, contractors, employees, or agents; or
    • induce any other person to perform any of the Services or supply the Goods specified in this Agreement.
  • You acknowledge that any breach by You of this clause would cause irreparable harm and damage to Us, and accordingly, We have a right to seek and obtain immediate injunctive relief in relation to any such breach.
  • You acknowledge that the covenants in this clause are fair and reasonable, and that We are relying upon this acknowledgment in entering into this Agreement.
22 WHOLE AGREEMENT

This agreement and any documents referred to in this agreement contain the whole of the agreement between the parties and no understanding, arrangement or provision not expressly set forth in this agreement is binding upon the parties.

23 AMENDMENT

No variation, modification or alteration of any of the terms of this agreement is effective unless in writing and signed by each of the parties.

24 WAIVER

The failure of either party at any time to enforce any of the terms or provisions of this agreement or to exercise any right under this agreement does not constitute a waiver of any such right or affect the party’s privilege to enforce that right.

25 SEVERANCE

If any provision of this agreement is deemed to be or is adjudicated to be unlawful or unenforceable, such provision is to be severed from this agreement and all other remaining provisions remain in force.

26 NO PARTNERSHIP

Nothing contained in this agreement creates a partnership between the Parties.

27 NOTICE
  • A notice, approval, consent or other communication given or made to a party under this agreement must be in writing and:
    • received by the recipient before 5 pm on a Business Day; or
    • sent by email or fax to the address, email address or facsimile number of the party as set out in this Agreement or to other address as notified.
  • Proof of despatch is proof of receipt:
    • in the case of a fax transmission, upon production of a transmission report by the machine from which the facsimile was sent which indicates that the facsimile was sent in its entirety to the facsimile number of the recipient notified for the purposes of this clause (but if the communication is not completed by 5 pm on a Business Day then at 9 am on the next business day); and
    • in the case of email, upon receipt by the recipient. Email service is effective only if there is confirmation that it was sent in full and without error and the message is not rejected or undeliverable as evidenced by a message to that effect received by the sender.
  • However, if the PPSA applies to this agreement and requires or permits a document to be given to Us, the document must be given to Us at the address specified in the registration recorded on the Personal Property Securities Register.
28 COUNTERPARTS

The Agreement may be signed in any number of counterparts and all counterparts together make on document.

29 COSTS

Each party must pay its own costs in relation to the preparation, signing and completion of the transactions anticipated by this Agreement.

30 NON-DISCLOSURE

The terms of this Agreement are confidential and must not be disclosed by any party to any other person other than is necessary for the purposes of completing the transactions contemplated by this Agreement.

31 LEGAL ADVICE

Each party acknowledges that it has read and understood this document and has had the opportunity to obtain independent financial and legal advice about its terms.

32 NO SET-OFF

Where You owe an amount to Us, You are not entitled to set-off any amounts owed to Us.

33 FURTHER ASSURANCES
  • Each party must do all things and execute all documents necessary to give full effect to this Agreement and refrain from doing anything that might hinder the performance of this Agreement.
  • Neither party can contract out of any terms and conditions without express agreement by both parties.
34 FORCE MAJEURE
  • Notwithstanding any other provision of this document, any obligation of a party under this document is suspended to the extent that party is affected by a Force Majeure Event, for as long as the Force Majeure Event continues.
  • Where a party is unable to perform its obligations due to a Force Majeure Event it must:
    • give the other parties notice of the Force Majeure Event within 5 Business Days of the cause, including an estimate of its likely duration, the obligations affected and the extent of its effect on those obligations; and
    • use reasonable endeavours to overcome or minimise the effect of the Force Majeure Event as quickly as possible.
  • For clarity, a party that is unable to perform its obligations due to a Force Majeure Event:
    • need not contest the validity or enforceability of any law or regulation; and
    • may act at its complete discretion when dealing with any labour dispute specific to its own labour.
35 EXECUTION OF AGREEMENT

This Agreement is entered into by Us in reliance on a representation by an authorised representative, director, officeholder or agent of Yours that he or she is capable of binding You to the terms of this Agreement.

36 PROPER LAW

This agreement shall be governed by and construed in accordance with the law of Victoria, Australia. The parties submit to the non-exclusive jurisdiction of the courts and tribunals of the governing law jurisdiction. Nothing in this clause is intended to oust the jurisdiction of the Federal Court of Australia or Federal Magistrates Court of Australia.