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In this Agreement, unless the context otherwise requires:
(a) Address for Service means, in respect of any Party, that Party's address as specified in the Reference Schedule.
(b) Administration Fee has the meaning given to it in the Reference Schedule;
(c ) Agreed Value means the compensation value agreed between the Parties concerning any of the Equipment subject to the circumstances in clause 5.6, having regard to the Equipment Value specified in Schedule 3;
(d) Agreement means this Client Agreement, including any schedules or annexures attached to it;
(e) Authority Form means the instrument of the Client's acceptance of the Quote annexed in Schedule 2;
(f) Business Day means a day that is not a Saturday, Sunday or public holiday in the Australian Capital Territory;
(g) Call Out Fee means the amount of $200;
(h) Claim means:
(i) Client's Invitee means each of the Client's employees, agents, contractors, consultants, clients, workmen, invitees, visitors, sublessees, franchisees, concessionaires and others, including any potential buyer of the Client Property, who are any time in, or adjacent to the Client Property (whether with or without invitation) or who are otherwise relevant to the Client Property;
(j) Client Property means the place specified in the Reference Schedule;
(k) Client Warranty means the warranties and representations given by the Client in clause 8;
(l) Cost means any action, claim, demand, loss, damage, cost, Liability or expense incurred by or against a Party to this Agreement;
(m) Installation Date means the date agreed upon between the Parties under clause 4.2(a);
(n) Deposit means the amount that is 50% of the Fees;
(o) Extended Term has the meaning given to it in clause 9;
(p) Extended Term Fees means the amount specified in the Reference Schedule;
(q) Equipment means any item installed by the Supplier and hired by the Client for and in connection with the Services specified in Schedule 3;
(r) Equipment Hire has the meaning given to it in clause 2.2;
(s) Equipment Value means the value of the Equipment specified in Schedule 3;
(t) Fees means the amount specified in the Reference Schedule;
(u) GST means:
(v) GST Law means the same as in A New Tax System (Goods and Services Tax) Act 1999 (Cth);
(w) Information System means a system for generating, sending, receiving, storing or otherwise processing electronic communications;
(x) Interest Rate means 15% per annum;
(y) Laws means:
(z) Liability includes all liabilities, losses, damages, Costs, interest, fees, penalties, fines, assessments, forfeiture and expenses of whatever description (whether actual, contingent or prospective);
(aa) Non-Permitted Use means any use of the Equipment other than the Permitted Use;
(bb) Permitted Use means the use of the Equipment strictly for staging the Client Property and for display purposes only;
(cc) Quote means the instrument of offer to perform the Services by the Supplier to the Client annexed in Schedule 1;
(dd) Rescheduling Fee means the amount of $500.00;
(ee) Services means the work to be performed by the Supplier pursuant to this Agreement specified in the Reference Schedule;
(ff) Special Conditions means the conditions specified in Schedule 4;
(gg) Term means the period specified in the Reference Schedule as may be extended to become the Extended Term;
In this Agreement, unless otherwise specified or unless context otherwise requires:
(a) words in singular includes the plural and vice versa;
(b) each gender includes the other genders;
(c ) if a word or phrase is defined its other grammatical forms have corresponding meanings;
(d) the use of the word “including” (or any variation thereof) does not limit the generality of the subject matter which precedes it;
(e) no rule of construction will apply to a clause to the disadvantage of a Party merely because that Party put forward the clause or would otherwise benefit from it;
(f) any covenants or obligations in this Agreement which bind two or more Parties bind them jointly and each of them severally;
(g) a reference to:
(h) references to any Acts or Statutes include any Act passed in modification or amendment of them or in substitution for them, or any regulation, or by-laws made under them; and
(i) the headings in this Agreement are for convenience only and do not in any way affect its interpretation or construction.
(a) Pursuant to the Quote, the Supplier agrees to provide and the Client agrees to receive the Services on terms of this Agreement.
(a) To give effect to the provision of Services under clause 2.1, the Supplier agrees to supply and the Client agrees to hire the Equipment on terms of this Agreement (Equipment Hire).
(a) As consideration for the provision of Services by the Supplier for the Term, the Client agrees to pay the Fees to the Supplier in accordance with this clause 3.
(a) The Fees shall be paid by the Client as follows:
(a) Where this Agreement is extended in accordance with clause 9, the Client must pay to the Supplier the Extended Term Fees for the Extended Term as follows:
(a) If the Client terminates this Agreement within two (2) clear business days of the Installation Date, the Supplier shall be entitled to recover an amount from the Deposit equivalent to 15% of the Fees as specified in Item 8 of the Reference Schedule.
(a) The Parties acknowledge and agree that the installation and removal of any Equipment is to be performed by the Supplier as follows:
(a) Subject to clause 3.2(a)(i), the Client must, by written notice to the Supplier, book the Installation Date with the Supplier and obtain confirmation from the Supplier.
(b) Commencing on the Installation Date, the Client shall give the Supplier clear access to the Client Property for the installation of the Equipment.
(c ) To facilitate the Supplier’s installation, the Client agrees that it will thoroughly clean the Client Property prior to the Installation Date to the reasonable satisfaction of the Supplier.
(d) If the Client fails comply with Clause 4.2(b) or Clause 4.2(c ), this failure will result in delay and rescheduling of the installation of the Equipment by the Supplier. If the Installation Date is rescheduled, the Supplier shall be entitled to:
(e) The Client acknowledges that:
(a) On the day of the Supplier’s removal of the Equipment, the Equipment must be in the same state of repair and condition as at the Installation Date and, where applicable, in proper working order.
(b) The Client acknowledges and agrees that if it requests the removal of the Equipment under clause 4.1(a)(ii) prior to the end of the Term, it will not be entitled to any refund on the Fees, or any other monies payable to the Supplier under this Agreement.
(a) From the time in which the Equipment is installed at the Client Property and until such time the Equipment is removed by the Supplier, risks under and in relation to the Equipment, including the risk of destruction or damage of any kind, shall be solely borne by the Client.
(a) The Parties acknowledge that the Supplier retains ownership and full title to any Equipment hired to the Client under the Equipment Hire.
(b) Nothing in this Agreement grants to the Client any right, title or interest with respect to any Equipment or any Intellectual Property that may arise out of the provision of Services to the Client.
(a) The Equipment shall not be used by the Client for any purpose other than for the Permitted Use.
(a) The Client acknowledges that no promise, representation, warranty or undertaking has been given by or on behalf of the Supplier as to the suitability of the Equipment for any purpose otherwise than as contained in this Agreement.
(a) With respect to the Equipment Hire, the Client agrees to:
(a) Where there is any evidence of Non-Permitted Use found on any of the Equipment, including where there is pet odour on the Equipment, or in the event of loss, damage or destruction of any Equipment, or otherwise where any of the Equipment is not in the same condition as on the Installation Date (as noted in Schedule 3) by any cause except the malicious act of the Supplier, the Client must at the Supplier’s demand pay to the Supplier
the Agreed Value for each impacted Equipment.
(a) At all times during the Term the Client will, at its own Cost, keep current an insurance policy in respect of all Equipment in an amount no less than the total Equipment Value or such other amount as the Supplier may notify to the Client from time to time in the name of the Supplier and noting the interest of the Supplier.
(a) The Client shall, when required by the Supplier, produce such policies and all renewals of the Insurances to the Supplier.
(a) At any time after the Equipment has been installed in the Client Property and until the Supplier removes the Equipment, the Client will not do, permit, or suffer to be done, any act whereby any of the Insurances may be vitiated or rendered void or voidable.
(a) In consideration of the Supplier having, at the Guarantors’ request, entered into the Equipment Hire with the Client, the Guarantors hereby guarantee to the Supplier:
The Guarantors expressly declare that this guarantee is given upon and with the benefit of the following conditions:
(a) The Supplier shall have the fullest liberty, without affecting this guarantee, to postpone for and at any time the exercise of any rights conferred by this Agreement and to exercise the same in any manner, either to enforce or forbear to enforce the covenants or remedies contained or implied in this Agreement. The Guarantors shall not be released by any exercise by the Supplier of its liberty, any variation of the provisions of this Agreement or by any other thing whatsoever, except for any express act or writing by the Supplier which would release the Guarantors;
(b) This guarantee shall be a continuing guarantee and shall not be wholly or partially discharged by the payment of any part of the moneys hereby secured, by any settlement of account intervening payment or by any other thing;
(c ) This guarantee shall not be determined by the death of any Guarantor and shall bind their respective legal personal representatives;
(d) This guarantee shall not be affected by:
(e) Until the Supplier has received all moneys hereby secured the Guarantors shall not be entitled on any grounds:
(f) This guarantee and indemnity shall at all times be valid and enforceable against the Guarantors notwithstanding that no demand for the payment of the moneys hereby secured shall have been made on the Client or that the Client was prohibited (whether expressly or by implication) by Law, contract, or otherwise from entering into this Agreement or that the Supplier had or ought to have had knowledge of any such prohibition or lack of capacity power or authority as aforesaid.
(g) Any demand or notice to be made upon the Guarantors by or on behalf of the Supplier shall be deemed to be duly made if:
(h) This guarantee shall inure for the benefit of the Supplier and its successors and transferees or, if the Supplier is an individual, the legal personal representative or representatives of the Supplier.
(i) For the consideration aforesaid, the Guarantors agree to indemnify the Supplier also in respect of all Costs, charges and expenses which the Supplier may incur due to any default by the Client in relation to this Agreement.
(j) This guarantee covers the whole period whilst the Client is in possession of or is entitled to possess the Equipment. The Client and the Supplier’s rights against the guarantee are not affected by the Client’s Liability under this Agreement being or becoming invalid, illegal or unenforceable through any act, omission or legislation.
(a) The Client agrees to the Equipment Hire at its own risk. The Client releases to the full extent permitted by Law the Supplier and its agents, servants, contractors and employees, in the absence of any negligence on their part, from all claims and demands of every kind resulting from any accident, damage or injury occurring therein. The Supplier expressly agrees that, in the absence of any such negligence, the Supplier shall have no responsibility or Liability for any loss of or damage arising from and in connection with the Equipment Hire and/or any Equipment.
(b) The Client unconditionally and irrevocably indemnifies the Supplier from and against all Costs for which the Supplier may be liable arising from:
(a) The Client acknowledges and agrees that:
(b) The Client warrants to the Supplier:
(c ) The Client acknowledges that the Supplier has:
(d) Each Client Warranty:
(a) To the maximum extent permitted by Law:
(b) The Supplier is not liable to the Client for any Claim arising from or relating to, and the Client expressly acknowledges and represents (with intention that the Supplier rely upon the representation) that it does not rely upon any statement, representation, warranty, promise, undertaking or agreement in connection with, the provision of Services not expressly set out in this Agreement.
(a) Except as a result of fraud on the part of the Supplier or as expressly set out in this Agreement, the Client releases the Supplier and its directors, employees and agents from:
(a) No later than three (3) days prior to the expiry of the Term, the Client may by written notice request to the Supplier for extension of this Agreement on a weekly basis (Extended Term).
(b) Following receipt of notice by the Client pursuant to paragraph (a), the Supplier must notify the Client of its acceptance or rejection of the request for the Extended Term as soon as reasonably practicable.
(c ) Where this Agreement is extended as in accordance with this clause, the Agreement shall be effective for the Extended Term and the Client shall pay to the Supplier the Extended Term Fees in accordance with clause 3.3.
(a) This Agreement can be terminated by either Party by written notice to the other Party at any time after the end of the Term, or after the end of the Extended Term if the Extended Term applies, and subject to a notification by the Client for the Supplier’s removal of the Equipment in clause 4. For the avoidance of doubt, termination of this Agreement shall be effective on the day of the removal of all Equipment from the Client Property as in accordance with clause 4.
(a) If the Client commits a breach of this Agreement, including failure to pay the Fees, Administration Fees, Rescheduling Fee, Extended Term Fees, Call Out Fee or any other amount payable under this Agreement, without prejudice to any other rights of the Supplier, the Client shall pay on receipt of a written demand from the Supplier:
(a) If the Client defaults on any obligation in this Agreement involving the payment of moneys owing:
(b) If the Client defaults on any other obligation in the Agreement that does not involve the payment of moneys owing,
(c ) Where the Services are suspended by the Supplier under clause 11.2, the Client remains liable to the Supplier for the Fees for the remainder of the Term or Extended Term (as applicable), and for any loss, damage and expense suffered or incurred by the Supplier arising out of or in connection with the suspension of the Services.
(d) If the Supplier retains any money paid by the Client on account of the Fees other than the Deposit forfeited pursuant to this clause as security for any damages, the Supplier shall, within twelve (12) months of the termination of this Agreement, provide the Client with full particulars of its damages and shall refund the balance of the amount withheld after satisfaction of its damages.
(a) If the Supplier defaults on its obligations under this agreement, the Client shall only be entitled to exercise its rights, including its right to sue for money, after it has served a notice on the Supplier specifying:
(a) A notice or communication to a Party must be served in writing and delivered to that Party or that Party’s solicitor in one of the following ways:
(b) Any notice served after 5:00 pm on any Business Day or on a weekend or a on a public holiday is deemed to be served on the next Business Day.
(a) If a dispute arises out of or relates to this Agreement (including any dispute as to breach or termination of this Agreement), a Party may not commence court proceedings relating to that dispute (Dispute) unless:
(b) Within five (5) Business Days of receiving a Dispute Notice, the Parties agree to schedule a conference between the Parties, and the Parties must confer and seek to resolve the Dispute within twenty (20) Business Days (or such other period agreed by the Parties).
A Party may commence proceedings or pursue alternative dispute resolution methods in relation to a Dispute if any of the following apply:
(d) For the avoidance of doubt, unless prevented by the nature of the Dispute, the parties must continue performing this Agreement while dispute resolution is ongoing.
(a) Any provision in this Agreement which binds more than one person binds all of those persons jointly and each of them severally.
(b) Each obligation imposed on a party by this Agreement in favour of another is a separate obligation.
(c ) This Agreement binds and benefits the Parties and their respective successors and permitted assigns.
(d) Nothing in this Agreement will be deemed to constitute a Party as an employee, partner, agent or representative of the other and each Party has no authority to incur any Liability or to make any representation on the other Party’s behalf.
In this Agreement, time is of the essence unless otherwise stipulated.
This Agreement cannot be amended or varied except in writing signed by the Parties.
A Party cannot assign or otherwise transfer the benefit of this Agreement without the prior written consent of each other Party.
(a) This Agreement is governed by and must be construed in accordance with the laws of the Australian Capital Territory.
(b) The Parties submit to the exclusive jurisdiction of the courts of the Australian Capital Territory and the Commonwealth of Australia in respect of all matters arising out of or relating to this Agreement, its performance or subject matter.
Each Party must pay its own legal costs of and incidental to the negotiation, preparation and completion of this Agreement.
If this Agreement consists of a number of signed counterparts, each is an original and all of the counterparts together constitute the same document.
Each Party acknowledges that it has received legal advice about this Agreement or has had the opportunity of receiving legal advice about this Agreement.
A Party, at its own expense (unless otherwise provided in this Agreement) and within a reasonable time of being requested by another Party to do so, must do all things and execute all documents that are reasonably necessary to give full effect to this Agreement.
(a) If there is any conflict between the main body of this Agreement and any schedules or annexures comprising it, then the provisions of the main body of this Agreement prevail.
(b) If there is any conflict between this Agreement and the Quote, then the provisions of this Agreement prevail.
A term or condition of, or act done in connection with, this Agreement does not operate as a merger of any of the rights or remedies of the Parties under this Agreement and those rights and remedies continue unchanged.
(a) A failure, delay, relaxation or indulgence by a Party in exercising any power or right conferred on the Party by this Agreement does not operate as a waiver of the power or right.
(b) A single or partial exercise of the power or right does not preclude a further exercise of it or the exercise of any other power or right under this Agreement.
(c ) A waiver of a breach does not operate as a waiver of any other breach.
(a) Any provision of this Agreement which is invalid in any jurisdiction must in relation to that jurisdiction:
Where any operation provided in this Agreement depends on the consent or approval of a Party then, unless this Agreement provides otherwise, that consent or approval may be given conditionally or unconditionally or withheld, in the absolute discretion of that Party.
This Agreement is not to be construed to the disadvantage of a Party because that Party was responsible for its preparation.
Except as expressly stated otherwise in this Agreement, the rights of a Party under this Agreement are cumulative and are in addition to any other rights of that Party.
Unless this Agreement expressly provides otherwise, a Party has no right of set-off against a payment due to another Party.
(a) Unless this Agreement expressly provides otherwise:
(a) In this clause:
(b) Unless otherwise expressly stated, all prices or other sums payable or Consideration to be provided under or in accordance with this Agreement are inclusive of GST.
(c ) If GST is imposed on any Supply made under or in accordance with this Agreement:
(a) To the extent of any inconsistency, the Special Conditions override the Standard Terms and Conditions.