Each of the terms and descriptions in the above Schedule have the same meaning throughout this Agreement.
BACKGROUND
1. The Supplier carries on the business of leasing the Equipment and supplying the Consumables.
2. The Customer wishes to lease the Equipment and purchase a minimum supply of the Consumables for the Term, and the Supplier wishes to lease the Equipment and supply the Consumables on the terms and conditions set out in this Agreement.
AGREEMENT
The Parties agree:
1. Term
1.1. This Agreement starts on the Commencement Date and ends at the expiration of the Term, subject to clause 1.3. or unless terminated in accordance with clause 9.8 or clause 13.
1.2 During the Term, the Supplier agrees to supply and the Customer agrees to lease the Equipment for the Equipment Price and purchase the supply of the Consumables for the Contract Price, in accordance with the terms and conditions of this Agreement.
1.3 If the Customer remains in possession of the Equipment for a period of seven (7) days following expiration of the Term, without objection by the Supplier after the end of the Term, this Agreement is automatically extended for a further term for a term equivalent to the Term, without any need for the Customer to give written notice of any kind.
2. Obligations of Customer
2.1 The Customer must not alter or interfere in any way with the Equipment, including removing any labelling or instructions provided with the Equipment.
2.2 The Customer must not make any representation or give any warranty in relation to the Equipment and/or Consumables not expressly authorised by the Supplier in writing.
2.3 The Customer must not do anything which might affect the reputation of any of the Equipment, the Consumables, the Supplier or related bodies corporate of the Supplier.
2.4 The Customer must:
2.4.1. Promptly inform the Supplier of all material complaints or claims in relation to the Equipment and/or Consumables;
2.4.2. Not admit liability on behalf of the Supplier in respect of any complaint or claim in relation to the Equipment and/or Consumables;
2.4.3. Not resolve or settle any complaint or claim in relation to the Equipment and/or Consumables which may result in the Supplier or any related bodies corporate of the Supplier incurring any liability to any party; and
2.4.4. Deal promptly with all complaints or claims in relation to the Equipment and/or Consumables which will not result in the Supplier or any related bodies corporate of the Supplier incurring any liability.
2.5. In performing its obligations under this Agreement, the Customer must comply and must ensure that each representative, employee or agent of the Customer complies, with all applicable laws, statutes, regulations and any policies or guidelines of the Supplier as in force from time to time.
3. Exclusivity
3.1. The Supplier is the exclusive Supplier to the Customer of the Consumables.
4. Equipment Price
4.1. The price for the lease of the Equipment is the Equipment Price as specified in the Schedule to this Agreement, as amended from time to time in accordance with the terms of this Agreement.
4.2. The Equipment Price is exclusive of the cost of Consumables.
4.3. The Equipment Price set out in the Schedule to this Agreement is based on the Equipment set out in the Schedule to this Agreement. The Supplier may increase the Equipment Price based on the order placed by the Customer for Equipment (whether additional equipment or a different quantity of the Equipment) that is not included in the Schedule to this Agreement. Where an order is placed for Equipment not included in the Schedule to this Agreement, the parties agree that the terms of this Agreement shall apply to all Equipment included in the order and this Agreement.
4.4. Prices for quantities of equipment other than those listed in the Schedule to this Agreement shall be determined in accordance with the Supplier’s established prices for such other quantities, in effect from time to time.
4.5. All prices are exclusive of applicable federal, state/provincial or local sales or other taxes.
4.6. The Supplier will hire to the Customer in line with the terms and conditions of this Agreement. Equipment listed within this Agreement and other equipment as the parties determine in writing from time to time, including all replacements or additions, records, logbooks, manuals (“the equipment”). The Equipment shall be used solely with film or other material, as applicable as set out on the front of this Agreement (“Consumables ”), supplied by Omni Group Pty Ltd.
5. GST
5.1. For the purpose of this clause, ‘GST Law’ means the meaning given to that term in the A New Tax System (Goods and Services) Tax Act 1999 (Cth);
5.2. Unless expressly stated otherwise, the consideration for any supply under or in connection with this agreement is exclusive of GST.
5.3. To the extent that any supply made under or in connection with this agreement is a taxable supply (other than any supply made under another agreement that contains a specific provision dealing with GST), the amount payable by the recipient is the consideration provided under this agreement for that supply (unless it expressly includes GST) plus an amount (Additional Amount) equal to the amount of that consideration (or its GST-exclusive market value) multiplied by the rate at which GST is imposed in respect of the supply.
5.4. The recipient must pay the Additional Amount at the same time as the consideration to which it is referable, and on the issue of an invoice relating to the supply.
5.5. Whenever an adjustment event occurs in relation to any taxable supply to which clause 6.3 applies:
5.5.1. the Supplier must determine the amount of the GST component of the consideration payable; and
5.5.2. if the GST component of that consideration differs from the amount previously paid, the amount of the
difference must be paid by, refunded to or credited to the recipient, as applicable.
5.6. If either party is entitled under this agreement to be reimbursed or indemnified by the other party for a cost or expense incurred in connection with this agreement, the reimbursement or indemnity payment must not include any GST component of the cost or expense to the extent that the cost or expense is the consideration for a creditable acquisition made by the party being reimbursed or indemnified, or by its representative member.
6. Price Changes
6.1. The Supplier may adjust the Contract Price (Price Adjustment), subject to the following provisions.
6.2. Any Price Adjustment may only be made if there is an increase or decrease of the price of Consumables from
the Commencement Date due to:
6.2.1. Currency fluctuation; or
6.2.2. Substantial increase or decrease in global resin prices; or
6.2.3. Substantial increase or decrease in global freight costs; and
the Supplier provides at least 14 days’ prior written notice to the Customer advising of the increase or decrease of
any of the Consumables and the Contract Price as varied pursuant to this clause.
6.3 The Customer may object by notice in writing to the Supplier to any Price Adjustment within fourteen (14) days of receipt of the notice from the Supplier in accordance with clause 7.2. Where the Customer objects to the Price Adjustment and the parties cannot reach agreement in relation to the Price Adjustment, either party may invoke the Dispute Resolution clause of this agreement.
7. Terms of Payment
7.1. The Supplier may at it’s absolute discretion authorise a credit limit for the Customer in writing and may change or
withdraw any credit facilities extended to the Customer at any time, upon 30 days’ notice in writing to the
Customer.
7.2. The Supplier may invoice the Customer and all amounts are payable by the Customer to the Supplier in
accordance with the terms of this Agreement or any varied terms set out in the tax invoice as the case may be.
7.3. The first tax invoice payment is due within 30 days of end of month.
7.4. Any variation to the Equipment Price and/or Contract Price will be due and payable by the Customer to the
Supplier in accordance with the terms of this Agreement or any varied terms set out in the tax invoice, inclusive of any late payment interest charges, parts and service labour.
7.5. All amounts owed to the Supplier by the Customer under this Agreement become immediately due and payable:
7.5.1. On termination of this Agreement for any reason; or
7.52. If the Customer becomes subject to an Insolvency Event.
For the purpose of clause 8.5.2, “Insolvency Event” means the occurrence of any one or more of the following:
it is insolvent as defined by section 95A of the Corporations Act as disclosed in its accounts or otherwise, states that it is insolvent, is presumed to be insolvent under an applicable law (including under section 459C(2) or section 585 of the Corporations Act) or otherwise is, or states that it is, unable to pay all its debts as and when they become due and payable;
any step is taken to appoint a receiver, a receiver and manager, a liquidator or a provisional liquidator or other like person to it or any of its assets, operations or business;
an administrator is appointed to it under section 436A, section 436B or section 436C of the Corporations Act;
a controller (as defined in section 9 of the Corporations Act) is appointed to it or any of its assets;
an application is made to a court for an order, or an order is made, that it be wound up, declared bankrupt or that a provisional liquidator, receiver or receiver and manager be appointed, and that application is not withdrawn, struck out or dismissed within 15 Business Days of it being made;
any step is taken to enter into an arrangement or composition with one or more of its creditors, or an assignment for the benefit of one or more of its creditors, in each case other than to carry out a reconstruction or amalgamation while solvent];
it proposes a winding-up, dissolution or reorganisation, moratorium, deed of company arrangement or other administration involving one or more of its creditors;
it is taken to have failed to comply with a statutory demand under section 459F(1) of the Corporations Act;
a notice is issued under section 601AA or section 601AB of the Corporations Act and not withdrawn or dismissed within 15 Business Days;
it ceases to carry on business or threatens to do so, other than in accordance with the terms of this agreement; or
anything that occurs under the law of any jurisdiction which has a substantially similar effect to any of the events set out in clauses 8.6.1 to 8.6.10.
An Insolvency Event of the Customer is taken to be a material breach of this Agreement
Delivery Terms
The Customer must collect the Equipment and/or the Consumables as notified in writing by the Supplier or, in the alternative, the Supplier may arrange freight of the Equipment and/or Consumables to the Customer.
All costs of and incidental to the freight of the Equipment and Consumables must be borne by the Customer absolutely, except where otherwise agreed in writing between the parties, and to the extent that the Supplier incurs such costs on the Customer’s behalf, such costs may be passed on to the Customer and are additional to the Equipment Price and the Contract Price.
The risk of loss of, or damage to, the Equipment will pass to the Customer on delivery to the Customer or its nominated agent. For the avoidance of doubt, where the Equipment is sent by freight to the Customer, such party is taken to be a nominated agent of the Customer and delivery shall pass upon collection of the Equipment by the freight forwarder.
All costs of and incidental to mobilisation of the Equipment, setup and installation of the Equipment, and the demobilisation of the Equipment at the expiration of this Agreement or otherwise shall be borne absolutely by the Customer.
Late delivery of an order of the Equipment does not entitle the Customer to refuse to take the delivery, claim damages or terminate this Agreement.
If the Customer fails to take delivery of the Equipment within seven (7) business days of the Supplier notifying the Customer that the Equipment is ready for delivery, then, except where that failure or delay is caused by the Supplier’s failure to comply with its obligations under this Agreement, delivery of the Equipment is deemed to be complete seven (7) business days following the day on which the Supplier notified the Customer that the Equipment was ready for delivery.
Any delivery date stated by the Supplier is approximate only and no contractual commitment is given as to the time of delivery.
The Customer shall use its reasonable endeavours to give the Supplier a written forecast not less than half yearly or as otherwise agreed in writing of its anticipated requirements of Consumables stating the quantum and specifications needed, and shall place orders with the Supplier sufficiently in advance of shipment dates (as advised by the Supplier from time to time) to enable the Supplier to obtain materials and complete the orders. Where orders cannot be completed, the Supplier shall notify the Customer in writing.
When restricted by laws and/or regulations, the Supplier may fill the Customer’s orders at any time by delivering equipment manufactured of substitute materials of comparable quality, provided that the Supplier has given the Customer written notice of such substitution seven (7) days prior to delivery. The Customer shall have the option to terminate this Agreement, or cancel the order at its discretion, if it deems such substitution to be unacceptable, provided it does so within seven (7) days of receipt of notice from the Supplier.
Acceptance and Defective Equipment
The Customer may reject as defective any Equipment delivered to it that do not comply with clause 14.1, provided that:
the Customer gives the Supplier notice of rejection:
in the case of a defect that is apparent on normal visual inspection, within two (2) business days of Delivery;
in the case of a latent defect, within a reasonable time of the latent defect having become apparent; and
none of the events listed in clause 6 apply.
The Customer is deemed to have accepted the Equipment if the Customer fails to give notice of rejection in accordance with clause 10.1.
The Supplier is not liable for an Equipment’s failure to comply with the warranty set out in clause 14.1 in any of the following events:
the Customer makes any further use of those Equipment after giving notice in accordance with clause 10.1;
the defect arises because the Customer failed to follow the Supplier's oral or written instructions for the storage, commissioning, installation, use or maintenance of the Equipment or best industry practice;
the defect arises as a result of the Supplier following any drawing, design or Specification supplied by the Customer;
the Customer alters or repairs the Equipment without the written consent of the Supplier;
the defect arises as a result of fair wear and tear, wilful damage, negligence, or abnormal storage or working conditions; or
the Equipment differ from their description and/or specification as a result of changes made to ensure they comply with applicable statutory or regulatory requirements.
If the Customer rejects Equipment under clause 10.1 then the Supplier may, at the Supplier's option:
replace the rejected Equipment or supply Equipment of like similar quality or standard;
repair the rejected Equipment;
Once the Supplier has complied with clause 10.4, the Supplier is not liable to the Customer, and the Customer has no further remedy arising out of or in connection with the rejected Equipment.
The terms of this Agreement apply to any repaired or replacement Equipment supplied by the Supplier.
Title to the Equipment
The right, title and interest in the Equipment remains the Suppliers, notwithstanding any parting of possession pursuant to this Agreement.
The Customer must keep the Equipment stored and marked as the property of the Supplier.
The Customer must not do any of the following in relation to any of Equipment except where expressly permitted by this Agreement or with the Supplier's prior written consent:
create or allow any interest in, or dispose or part with possession of, the Equipment;
allow the Equipment to be taken outside Australia;
allow the Equipment to become an accession to or commingled with any other property; or
grant any security interest in respect of accounts owed to it in relation to the Equipment.
Despite the terms of this Agreement, where the Customer disposes or sells all or part of the Equipment in breach of this Agreement, the Customer promises to hold the proceeds of sale or disposal on trust for the Supplier to secure payment of any amounts the Customer owes the Supplier for the Equipment. For the avoidance of doubt, the Supplier expressly prohibits the sale and/or disposal of part or all of the Equipment save for in accordance with the terms of this Agreement.
The Customer grants the Supplier and its representatives an irrevocable licence to enter any land or premises for the purpose of inspecting, seizing or otherwise enforcing the Supplier's rights in respect of the Equipment and indemnifies the Supplier for any claims for damage to property or personal injury as a result of exercising those rights. If the Supplier seizes or retakes possession of any Products, it may deal with them as it thinks fit.
The Customer covenants that it shall not make any drawings, photographs, plans or models of the Equipment or use or permit the use of the Equipment to the manufacturer’s or Supplier’s detriment, such as by using the Equipment or permitting others to use the Equipment to develop their own technology or like equipment.
The Customer acknowledges that all intellectual property rights used for the manufacture of the Equipment that originate from the manufacturer will remain the exclusive property of the manufacturer, save to the extent that a third party has the right to use them.
The Customer must indemnify the manufacturer of the Equipment and the Supplier against all liabilities, costs, expenses, damages and losses (including but not limited to any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal costs (calculated on a full indemnity basis) suffered or incurred by the manufacturer of the Equipment and/or the Supplier arising out of or in connection with any claim made against the manufacturer for actual or alleged infringement of a third party’s intellectual property rights or moral rights arising out of in connection with the use of the Equipment in accordance with the terms of this Agreement.
Termination Fee
Upon the termination of this Agreement for any reason, all amounts owed to the Supplier by the Customer under this Agreement become immediately due and payable.
The Customer accepts all Equipment previously ordered by the Customer and which orders are either complete or in process and subsequently completed at the Supplier’s option and shall reimburse the Supplier for all losses incurred on uncompleted orders for Equipment or on Consumables purchased or other expenses incurred pursuant to Agreement (Early Termination Fee).
For the avoidance of doubt, the Early Termination Fee shall be calculated also having regard to the Equipment Price and the Contract Price.
Default & Termination
The supplier may terminate this Agreement immediately as to any or all Equipment if the Equipment is abandoned or destroyed by the Lessee, if the Minimum Quantity of Product as set out on the front of this Agreement is not purchased by Lessee, or for any breach of the provision of this Agreement, effective upon delivery of written notice to Lessee. Notices shall be deemed delivered when delivered in person or when deposited in the mail addressed to the appropriate party, postage prepaid, at the address shown for that party above.
The Supplier may terminate this Agreement immediately if any or all of the Equipment is abandoned or destroyed by the Customer or, if the Actual Purchase Amount of Consumables is less than the Minimum Purchase Amounts required.
The Supplier may terminate this Agreement for any other reason, upon thirty (30) days written notice to the Customer.
If either party fails to perform a material term or of this Agreement, the other party may terminate this Agreement upon sixty (60) days’ prior written notice (Termination Notice).
For the avoidance of doubt, ‘material term’ means clauses: 2.1, 2.2, 2.3, 2.4, 2.5, 3, 11.3, 11.4, 11.6, 21.1, 26.3 and 26.7.
Where a party is provided with a Termination Notice, this Agreement shall end at the expiration of the notice period unless the breach is capable of remedy and the party in breach remedies the breach during the notice period.
If the Supplier continues to make shipments despite the Customer’s breach, such action shall not constitute a waiver of the default or otherwise affect the Supplier’s rights and remedies under this Agreement.
Termination of this Agreement does not affect any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination, including the right to claim damages for any breach of the agreement that existed at or before the date of termination.
Where this Agreement is terminated, the Customer must return the Equipment to the Supplier at the Customer’s expense, within 20 days after termination, in the same condition and state of repaired as when delivered, fair wear and tear excepted. If the Customer fails to return the Equipment, the Customer must provide the Supplier with access to the premises to re-possess the Equipment within 2 days of a written request by the Supplier and the Customer agrees to bear all costs incurred by the Supplier to recover the Equipment, including but not limited to legal fees on a full indemnity basis, interest charges, parts and service labour costs and freight charges.
Warranties
The Equipment supplied to the Customer by the Supplier under this Agreement must:
Conform to specification;
Be of merchantable quality and fit for any purpose held out by the Supplier; and
Be free from defects in design, material and workmanship upon Delivery; and
Comply with all applicable statutory and regulatory requirements.
Except as expressly provided in clause 14.1, the Supplier makes no warranty, express or implied, with respect to the Equipment and excludes all rights, representations, guarantees, conditions, warranties, undertakings, remedies or other terms in relation to the Equipment to the maximum extent permitted by law.
Limitation of Liability
The Supplier is not liable to the Customer for any loss of profit, goodwill or business, loss of opportunity, loss of reputation, increased financing costs, failure to realise anticipated savings or for any consequential, indirect, special, punitive, remote or incidental loss or damages.
Without prejudice to clause 15.1, the Supplier’s total liability arising under or in connection with this Agreement, whether arising in contract, negligence or any other tort, restitution, or for breach of statutory duty or misrepresentation, or otherwise, is in all circumstances limited to the following:.
Replacing or repairing the Equipment where the context allows (including pursuant to clause 10.4); and
In all other respects, the Supplier’s total liability is the equivalent of the Contract Price in the first year of the Term (and not cumulative Contract Price over the length of the Term or any further term).
The Customer shall indemnify and hold the Supplier and their respective employees, agents and successors from and against any and all claims, demands, liabilities, damages or expenses related in any way to the possession of the Equipment and/or Consumables, inclusive of any late payment interest charges, parts and service labour use or maintenance of the Equipment. Lessee agrees that, to the extent permitted by law Omni Group Pty Ltd shall have any liability in contract, tort (including negligence or breach of statutory duty) or otherwise by reason of or in connection with the Equipment or this Agreement (except in relation to death or personal injury).
Force Majeure
A party that is prevented, hindered or delayed in or from performing any of its obligations under this Agreement due to fires, strikes, floods, acts of God, lawful acts of public authorities, or delays or defaults caused by common carriers, which cannot reasonably be foreseen or provided against, (Force majeure Event) shall not be in material breach of this Agreement subject to that party providing notice in writing to the other party within seven (7) days of occurrence of the Force Majeure Event, setting out particulars of the Force Majeure Event, the date on which it started, its likely or potential duration, and the effect of the Force Majeure Event on its ability to perform any of its obligations under this agreement (Force Majeure Notice).
If the Force Majeure Event prevents, hinders or delays the affected party’s performance of its obligations under this Agreement for a continuous period of more than 30 days, the party not affected by the Force Majeure Event may immediately terminate this Agreement by notice in writing to the affected party.
Dispute resolution
If a dispute arises out of or in connection with this Agreement, or the performance, validity or enforceability of it (Dispute) then except as expressly provided for in this agreement, the parties must comply with the procedure set out in this clause 17.
Either party may give to the other written notice of the Dispute, setting out its nature and full particulars (Dispute Notice), together with relevant supporting documents.
On receipt of a Dispute Notice:
the parties must attempt in good faith to resolve the Dispute;
if the parties are for any reason unable to resolve the Dispute within 30 days of service of the Dispute Notice, either party may refer the Dispute to the Australian Commercial Disputes Centre. The parties agree to endeavour in good faith to settle the Dispute by mediation administered by the Australian Commercial Disputes Centre. To initiate the mediation, a party must serve notice in writing (Mediation Notice) to the other party to the Dispute, requesting a mediation.
Subject to 17.5, no party may commence any court proceedings in relation to the whole or part of the Dispute until 120 days after service of the Mediation Notice, provided that the right to issue proceedings is not prejudiced by a delay.
This clause is not intended to prevent any party from seeking urgent injunctive or similar relief.
Endure
This Agreement shall remain in continuity to the benefit of and be binding upon the parties hereto and their respective heirs, administrators, executors, successors and assigns.
This Agreement shall be governed by and construed in accordance with the laws of the state of Victoria and each party irrevocably submits to the exclusive jurisdiction of courts exercising jurisdiction in Victoria.
No party may rely on the words or conduct of any other party as being a waiver of any right, power or remedy arising under or in connection with this Agreement unless the other party or parties expressly grant a waiver of the right, power or remedy. Any waiver must be in writing, signed by the party granting the waiver and is only effective to the extent set out in that waiver.
Words or conduct referred to in clause 20.1 include any delay in exercising a right, any election between rights and remedies and any conduct that might otherwise give rise to an estoppel.
Assignment and other dealings
The Customer may not assign, novate, transfer, mortgage, charge, subcontract, declare a trust over or deal in any other manner with any or all of its rights or obligations under this Agreement without the prior written consent of the Supplier.
A breach of clause 21.1 is a material breach of this Agreement.
No merger
On completion or termination of this Agreement, the rights and obligations of the parties set out in this Agreement will not merge and any provision that has not been fulfilled remains in force.
Entire agreement
This agreement together with the Supplier’s Terms and Conditions, states all the express terms agreed by the parties about its subject matter. It supersedes all prior agreements, understandings, negotiations and discussions in respect of its subject matter.
No reliance
No party has relied on any statement, representation, assurance or warranty made or given by any other party, except as expressly set out in this agreement.
An amendment or variation of any term of this Agreement must be in writing.
In clause 26:
“PPSA” means the Personal Property Securities Act 2009 (Cth).
“PPSR” means the Personal Property Securities Register;
“Collateral” has the same meaning as defined in the PPSA.
This Agreement is a security agreement for the purposes of the PPSA. The Customer acknowledges that it has granted the Supplier a security interest in the Equipment and their proceeds which is a purchase money security interest to the extent that it secures payment of all or part of the purchase price for particular goods.
The Customer consents to the Supplier perfecting any security interest arising in connection with this Agreement by registering a financing statement on the PPSR and any other applicable security registers in any manner it considers appropriate. The Customer agrees to do anything the Supplier reasonably asks to ensure that the security interest:
is enforceable, perfected and otherwise effective; and
has priority over all other security interests.
The Customer agrees to pay or reimburse the Supplier for any fees or charges for the PPSR or other registrations contemplated by this clause.
Real Property Security Interest
As security for performance of the obligations and liabilities of the Customer, the Customer charges for the due and punctual payment and performance of those obligations and liabilities, all of its legal and equitable interest (including as beneficial owner, both present and future) of whatsoever nature held in any and all real property, in favour of the Supplier.
Without limiting the generality of the charge in clause 27.1, the Customer agrees on request by the Supplier to execute any documents and do all things reasonably required by the Supplier to register a mortgage security over any Real Property. In the event that the Customer fails to deliver the requested documents within seven (7) days of request by the Supplier, the Customer hereby appoints the Supplier to be the Customer’s lawful attorney for the purposes of executing and registering such documents. The Customer indemnifies the Supplier on a full indemnity basis against all costs and expenses incurred by the Supplier in connection with the preparation and registration of such mortgage documents.
Dealings with Collateral
Except as otherwise permitted under this Agreement, the Customer must not do any of the following in relation to any of the Collateral:
create or allow any interest in, or dispose or part with possession of, the Collateral, except in the ordinary course of business;
allow the Collateral to be removed from the location where the Customer carries on business; or
allow the Collateral to become an accession to or commingled with any other property.
The Customer must immediately notify the Supplier if anything mentioned in clause 26.3.1. occurs upon becoming aware of it.
Accessions and Commingling
the Supplier’s security interest continues in the other property, product or mass; and
References to the Collateral in this clause 26.4 include the other property, product or mass.
Enforcement of Security Interest
Without limiting any other enforcement rights available to the Supplier, the Supplier may take possession of the Collateral and the Supplier may enter any land or premises for the purpose of taking possession. If the Supplier takes possessionof any Collateral, it may deal with it as it thinks fit.
To the extent the law permits, the Supplier need not comply with, and the Customer may not exercise rights under, any provisions of Chapter 4 of the PPSA that may be contracted out of.
If the Supplier exercises a right, power or remedy in connection with this Agreement or a security interest that it provides for, that exercise is taken not to be an exercise of a right, power or remedy under the PPSA unless the Supplier states otherwise at the time of exercise. However, this clause 26.5) does not apply to a right, power or remedy which can only be exercised under the PPSA.
Confidentiality
Neither the Customer nor the Supplier will disclose any information of the kind mentioned in section 275(1) of the PPSA under section 275(4) of the PPSA unless section 275(7) of the PPSA applies.
Changes in Customer’s Details
The Customer must notify the Supplier at least fourteen (14) days before it does any of the following:
changes its name;
changes its place of registration or incorporation;
changes or applies for an ACN, ABN, ARBN or ARSN under which an interest in any of the Collateral is or will be held.
The Customer must notify the Supplier if anything mentioned in clause 26.7.1 occurs immediately upon becoming aware of it.
Equipment Warranty & Servicing
The Equipment and the Consumables under this Agreement is guaranteed in line with the manufacturer’s warranty.
Warranty does not cover the replacement of ordinary wearing parts.
The Supplier makes no warranties or representations that the manufacturer of the Equipment and/or the Consumables will fulfil the warranty, including if the stretch film/wrap or other materials being used for the Equipment are not Consumables supplied by the Supplier or if Machinery is not serviced inline with requirements listed in 27.4 .
The Equipment servicing and costs is in line with approved service repairers of the Supplier from time to time during standard business hours. Any after hours service support will incur additional costs. In the event of a breakdown, please contact the Supplier on 1300 764 963 or service@omnigroup.com.au to arrange the attendance of an Omni Group Pty Ltd Technician. Following each maintenance service, any additional works identified as being required will need to be undertaken within the recommended time frame provided by The Supplier. Uninterrupted access to the equipment must be made available during business hours for any works to be completed.
The Customer is responsible to Contact the Supplier to arrange Maintenance Servicing (Every 6 months) in order to comply with warranty terms and conditions listed above.
The warranty expressly excludes accidental damage or damage caused by misuse or neglect.
Warranty for the Equipment will be voided if the Equipment is not serviced by the Supplier or an authorised representative of the Supplier. Misuse, neglect or accidental damage is at the Customer’s cost.
Service of the Equipment, as required, is at the cost of the Customer with a call out fee chargeable in line with the rate applicable at time of call out.
It is the responsibility of the Customer to service and maintain the Equipment at their cost in line with the manufacturer’s service requirements.
Equipment Location & Insurance
The Equipment shall remain at the delivery address, except with the prior written consent of the Supplier.
For the duration of this Agreement, the Customer has the sole risk of loss or damage to the Equipment and must maintain, with a reputable insurance company, insurance cover for any loss or damage to the Equipment for it’s full replacement value, and must have the Supplier’s interest noted on the policy. The Customer must provide the Supplier with evidence of insurance immediately upon a request in writing by the Supplier.
Damage Waiver
The charge is equal to approx. 2.5% of the original value of the machine being leased. Machine depreciation or contract length does not reduce this figure. In consideration of the Damage Waiver Levy, the Supplier will be liable for and bear the cost of repairs to the machinery to ensure it is operating at an optimum level. The machine must be serviced as per Supplier recommendations to maintain this insurance cover. This is effectively an extended warranty on the machine components (not consumable, service items or damaged components not consistent with normal operation of the machine with the normal production loading equipment.). This insurance for the period of the machine rental and is to be read in line with the factory warranty conditions (refer to Omni Group website for terms). In the event where there is any damage to the Equipment in the case of misuse and or negligence the Customer will be responsible for any costs to rectify the machine to operating condition. In the instance where an insurance levy or repair claim has taken place for the leased Equipment, the Customer must repair the machine within the following month and in all cases before terminating the rental agreement or returning the machine. The levy does not cover the cost of parts used in servicing or wear and tear, or if the Customer is not up to date with meeting service requirements, refer to Clause 27. Insurance in Section 28 does not apply when the damage waiver is paid. In cases where in the opinion of the supplier the machine requires extensive repairs, the damage waiver will cover costs of substituting the machine with one of similar to original rental agreement. The Supplier will only cover a total of claim up to 10% of the machinery value. In the instance where more than one insurance or repair claim has taken place for the leased Equipment, the Supplier reserves the right to terminate the damage waiver agreement or increase the damage waiver % fee as payment, but only to the extent of recouping the estimated costs of future claims.
In addition to the Contract Price and the Equipment Price, the Customer shall pay a damage waiver payment that will be invoiced on a monthly basis. This charge is equal to approx. 2% of the value of the machine being leased. In consideration of the damage waiver payment, the Supplier will be liable for and bear the cost of insurance and/or repairs for the machinery in the event where there is any damage to the Equipment but not in the case of misuse and or negligence. The Supplier will only cover a total of claims up to 25% of the machinery value. In the instance where more than one insurance or repair claim has taken place for the leased Equipment, the Supplier reserves the right to terminate the damage waiver agreement or increase the damage waiver % fee as payment, but only to the extent of recouping the estimated costs of future claims. The fee does not cover the cost of parts in wear and tear, or not meeting service requirements, refer to Clause 27. Insurance in Section 28 does not apply when the damage waiver fee is paid.
Terms & Conditions
This parties agree that the Supplier’s ‘Terms and Conditions’ as in use and as amended from time to time, apply to any order of Equipment and/or Consumables in addition to the terms and conditions of this Agreement.
To the extent of any inconsistency between the Supplier’s Terms and Conditions and this Agreement, the terms of this Agreement prevail.