1.2 Except to the extent that the context otherwise requires:

• words importing the singular include the plural and vice versa.
• words importing a gender include other genders and corporations and vice versa.
• words importing individuals include corporations and vice versa.
• the word Hirer shall mean Hirer or Renter.
• where the Hirer comprises two or more persons those persons are jointly and severally bound by these Conditions and a reference to the Hirer includes a reference to any one or more of those persons.
• a reference to a party to these conditions includes its successors and permitted assigns.

The Hirer acknowledges that Generator Rentals has provided the Hirer with all information necessary to enable the Hirer to operate the Plant safely without risks to health.

Expressly excluded from the above waiver is damage as defined below:

• Damage due to misuse, abuse, or overloading of the equipment and/or overhead damage to hire equipment;
• Mysterious disappearance or wrongful conversion of the equipment;
• Loss or damage in contravention of the conditions of the agreement;
• Loss or damage from use in violation of any statutory laws and regulations;
• Loss of leads, cables, distribution centres, tools, batteries or any accessories supplied with and/or fitted to the Plant;
• Loss or damage resulting from lack of lubrication or other normal servicing of equipment;
• Loss or damage to motors or other electric appliances or devices caused by overloading or artificial electrical current, including use of under rated extension leads or electrical powered tools and machines including automatic voltage regulators;
• Loss or damage to third parties whilst Hirer is driving and/or towing Plant in a truck and/or trailer hired from Generator Rentals.

The Hirer shall be solely responsible for and shall hold Generator Rentals fully indemnified against any loss or damage arising to or in connection with the Plant or as a result of the use or situation of the Plant. The Hirer shall fully and completely indemnify Generator Rentals in respect of all claims by any person whatsoever for injury to person or property caused by or in connection with the use of situation of the Plant and in respect of all costs and charges in connection therewith whether arising under statute or common law. The foregoing indemnities shall be effective whether or not the loss, damage or injury arises from any negligence on the part of the Hirer.

The Hirer shall pay all costs, charges and expenses including reasonable legal fees incurred in retaking possession of the Plant or in the collection of any such sums which may be due and owing Generator Rentals by the Hirer, including the defence of any action brought against Generator Rentals for damages caused by the Plant to any person while the Plant is in the possession of the hirer.

Each party shall keep confidential any trade secrets or other confidential information of the other party including any information, document or item which may not otherwise at law be classified as confidential but which is commercially sensitive and has the word “CONFIDENTIAL” written upon it clearly.

Hirer hereby authorises Generator Rentals to promote, photograph and publicise in a manner which is dignified, truthful, not misleading and not prejudicial to the goodwill or reputation of Hirer, Generator Rentals involvement with hirer in a general manner, excluding any specific technical details.

These terms and conditions of sale (Terms of Sale) apply to every sale or licencing of products, items and equipment, including labour, (Goods) made by East Coast Generators Pty Ltd (Company).

A person or business entity who orders Goods from the Company is referred to in these Terms of Sale as the “Purchaser”. Each order from the Purchaser constitutes an offer by the Purchaser to acquire Goods from the Company on these Terms of Sale to the exclusion of all other terms and conditions.

No variation or cancellation of any of these Terms of Sale shall be binding on the Company unless agreed to by the Company in writing by a duly authorised representative of the Company.

The Company and the Purchaser agree that the Terms of Sale and the Purchaser’s order constitute the entire agreement between the parties in relation to the Sale of Goods and that there are no other understandings, representations or warranties of any kind (express or implied) forming part of the agreement between the parties.

The applicable law of this agreement is the law of Victoria and the Company and Purchaser irrevocably and unconditionally submit to the exclusive jurisdiction of the courts of Victoria.

These Terms of Sale apply to the Purchaser and to the Company in respect of Goods ordered by the Purchaser and any terms and conditions set out in the Purchaser’s order deviating from or inconsistent with these Terms of Sale have no legal effect, do not constitute part of the agreement between the parties and will not bind the Company notwithstanding any statement made by the Purchaser in its order that its terms and conditions will prevail over the Terms of Sale.

A quotation is not to be construed as an offer or obligation to sell and the Company reserves the right to accept or reject any orders received.

Quotations are valid for a period of 30 days from the date of quotation by the Company for supply within 90 days from date of acceptance or as otherwise specified in the quotation. Thereafter quotations and contractual delivery dates are subject to confirmation before acceptance. The prices quoted by the Company are only for the supply of those Goods specified in the quotation and do not apply to any lesser quantities or additional Goods supplied by the Company unless specified in writing by the Company prior to supply.

This agreement may be terminated by the Company, without notice, if the Purchaser:

• fails to perform or observe any obligation or agreement, express or implied in or given in relation to these Terms of Sale including, without limitation, the payment of money or refusal to take delivery of Goods;
• being a natural person, is the subject of any personal insolvency event including without limitation, where an application is made to a court for an order that the Purchaser be declared bankrupt; or
• being a company, has a receiver, receiver and manager, trustee, administrator, liquidator or other similar official appointed, or steps are taken for such appointment, whether voluntarily or otherwise, over any of the Purchaser’s assets or undertakings, or if the Purchaser is unable to pay its debts if and when they fall due.

If termination occurs, then the Company may, without prejudice to any other rights it may have, do any or all of the following things:

• require immediate payment of all moneys owed to the Company by the Purchaser and withdraw any credit facilities which may have been extended to the Purchaser;
• withhold any deliveries of Goods in respect of any purchase order accepted by the Company; and
• in respect of Goods which may have already been delivered to the Purchaser but not paid for, enter the Purchaser’s premises or elsewhere in accordance with clause 22(d) and (e) to recover those Goods and resell those Goods for the Company’s own benefit.

Purchaser-requested order changes, including those affecting the identity, scope and delivery of the Goods, must be documented in writing, are subject to the Company’s prior written agreement and may be subject to adjustments in price, scheduling and other affected terms and conditions. The Company reserves the right to reject any Purchaser-requested change, especially where the change is deemed unsafe, technically inadvisable or inconsistent with established engineering or quality guidelines and standards, or incompatible with the Company’s, its Supply Line Partner’s or Supplier’s design or manufacturing capabilities. The Company further reserves the right to substitute using the latest superseding revision or series or equivalent Goods having comparable form, fit and function.

If the Purchaser cancels an order by written notice prior to shipment for stock line items and the cancellation is accepted by the Company, the Company may charge the Purchaser reasonable cancellation and restocking fees, including reimbursement for the Company’s direct costs incurred in connection with the cancellation.

Despite anything to the contrary in these Terms of Sale, the Company may charge cancellation fees associated with Goods ordered on a manufactured/assembled to order or indent only basis up to the actual selling price of the Goods.

The Company has the right to cancel an order for cause at any time by written notice to the Purchaser and the Company will be entitled to cancellation and restocking charges as identified in this clause 9. No cancellation by the Purchaser for cause will be effective unless and until the Company has failed to correct such alleged cause within forty-five (45) days after receipt of the Purchaser’s written notice specifying such cause.

All descriptive specifications, illustrations, drawings, data, dimensions and weights furnished by the Company or otherwise contained in Company publications including price lists, brochures, catalogues, electronic media and other advertising material of the Company are approximate only and are intended to be by way of general description of the Goods and shall not form part of the agreement between the Company and the Purchaser unless otherwise specified by the Company in writing, in which case, they shall be subject to recognised tolerances and rejection limits. The Company does not agree to comply with any specifications and drawings referred to in any order unless such specifications and drawings have been produced to the Company prior to the delivery of Goods and have been agreed to in writing and signed by a duly authorised representative of the Company.

Following agreement to purchase, if the Purchaser requests the Company to provide certified drawings, the Company may, at its discretion, provide such certified drawings at the Purchaser’s reasonable expense.

Any drawings, studies or other documents submitted by the Company to the Purchaser remain the property of the Company and constitute the confidential information, intellectual property and copyright of the Company. The Purchaser must not use them for any purpose other than in accordance with these Terms of Sale and must not transmit, disclose or make them available to any third parties without the prior written consent of the Company.

Any performance figures given by the Company are based on the Company’s experience and are figures that the Company expects to obtain on testing. Despite any representation by a representative of the Company to the contrary, the Company is under no liability whatsoever for damages for failure to attain such performance figures.

Following submission of a quotation or tender, the Company is not required to comply with any additional standards, specifications, rules or other requirements subsequently proposed by the Purchaser. If such additional standards, specifications, rules or other requirements are proposed by the Purchaser, the Company reserves its rights to decline to proceed with any resultant order or vary the supply including the price.

For the purpose of these conditions “GST” means GST within the meaning of A New Tax System (Goods and Services Tax) Act 1999 (the Act).

All prices quoted or contained in any publication of the Company (including these Terms of Sale) are exclusive of GST unless specifically stated otherwise.

GST will be added to the price of the Goods and any other form of taxable supply at the rate applicable at the time of supply, and the Company will provide a valid tax invoice.

The following minimum values will apply to orders supplied by the Company:

A delivery charge per order, charged at the rate applicable at the time of delivery, will be applied on all orders which are delivered to a Purchaser’s premises, or as directed by the Purchaser. This amount will be shown as a separate item on all invoices.

The delivery charge will not be applied to the supply of equipment back orders from an original order, which is beyond the control of the Purchaser.

Unless stated otherwise in the quotation, the price quoted includes packing in accordance with the Company’s standard practice. Any other specific packing and marking requirements not otherwise included in the price of the Goods and requested by the Purchaser and/or deemed necessary by the Company will be charged for in addition to the price quoted.

For established trading accounts with credit facilities, the account must be paid within 30 days of receipt unless otherwise stated.

When payments are made contingent upon delivery, erection or test, and any of these stages are delayed to suit the Purchaser’s wishes or convenience, or by reason of unreadiness of the Purchaser, payments are to be made within the time in which they ordinarily would have been made had there been no such delays, the Goods being, if necessary, stored at the Purchaser’s risk and expense.

Should the Purchaser delay in respect of any payment due to the Company, the Company will have the right, in addition to all other rights at law, to charge interest on the overdue amount at a rate of 3% per annum above the overdraft rate payable by the Company to its bankers at the time of and after the default and calculated from the due date of the account until the actual date of full and final payment. Payment will be credited first against interest accrued.

The Company may render partial invoices and require progressive payments. The Company reserves the right to render invoices electronically and to receive payment by way of electronic funds transfer. Payment by credit or debit card, when permitted, is subject to credit card validation and authorisation both at the time of agreement and immediately prior to shipment and the Company reserves the right to recover as a separate charge, any processing fees and other administration costs incurred in processing the credit or debit card transaction.

The Company reserves the right to suspend any further performance hereunder or otherwise in the event payment is not made when due. Where the Purchaser’s account is in arrears, the Company may demand payment of the arrears as well as payment in advance for any undelivered Goods before proceeding with manufacturing or making any further delivery of Goods under these Terms of Sale. In such circumstances, the Company may also defer or cancel any outstanding balance of an order and may enter the Purchaser’s premises or elsewhere as provided in clause 22.

The Purchaser must make all payments due under these Terms of Sale without any set-off, counterclaim, deduction or condition unless the Company otherwise agrees in writing.

All payments must be made in Australian dollars.

The delivery period quoted commences from the date the Company receives sufficient information to proceed with supply or from the date the Company receives the Purchaser’s written order, whichever is the later date. Quoted delivery dates are subject to confirmation when placing the order. All delivery times made by the Company are made in good faith but are estimates only and not commitments. The Company is not in any circumstances liable to the Purchaser for any loss of profits or other loss or damage caused to the Purchaser by any delay in the delivery or any non-delivery of the Goods, or any part of the Goods.

Non-stock items indented against the Purchaser’s specific requirements will not be ordered until the Purchaser has provided the Company with a signed declaration acknowledging that the Goods will be specially indented, the Company may refuse any cancellation or variation request by the Purchaser and the Goods may not be returned after delivery. Any estimated delivery time quoted prior shall not commence until receipt of such declaration by the Company.

Claims for shortages in deliveries must be advised to the Company in writing within 7 days of receipt of the Goods.

Where the Purchaser requests a particular method of delivery and the Company agrees in writing, the Purchaser must pay for the cost of delivery by that method from the point of despatch of the Goods by the Company. If prior to delivery the Purchaser notifies the Company in writing that it does not accept the costs payable for its nominated method of delivery, the Company may select the method and service level of delivery at the Purchaser’s cost.

Prior to delivery of the Goods, the Company may, at its own expense, carry out any tests on the Goods in accordance with the Company’s standards and testing procedures. Any additional tests, procedures and associated documentation required by the Purchaser are at the Purchaser’s expense.

Where carriage is the responsibility of the Company, the Company will repair or replace free of charge and at the Company’s absolute discretion, all Goods lost or damaged in transit to the contractual point of delivery provided written notice of such loss or damage is given to the Company within 3 days of delivery or expected delivery, or within such times as will enable the Company to comply with the carrier’s conditions of carriage applicable to loss or damage in transit.

Prior to acknowledging delivery to the carrier the Purchaser must ensure that the complete consignment as per the carrier’s note has been received. If there is a shortage or visible damage to the outer packaging of the Goods, the Purchaser must endorse the carrier’s note accordingly.

The Company is not responsible for any loss or damage to the Goods caused by or arising from transport or delivery of the Goods if the Company has not packed the Goods or the Purchaser has nominated the carrier.

Claims made for damage or loss in transit must be made against the carrier in the manner prescribed by the carrier.

Risk in the Goods (including responsibility for insurance) passes to the Purchaser upon delivery of the Goods to the Purchaser. Unless specified to the contrary, the Goods will be delivered to the Purchaser and risk will pass to the Purchaser at the time of loading the Goods onto the transport deck (regardless of who pays for the freight).

Notwithstanding that the Goods are in whole or in part at the risk of the Purchaser, the property in and legal title to the Goods remains with the Company until they and all other Goods previously supplied by the Company to the Purchaser, whether under this or any other order for Goods from the Purchaser, have been paid for in full by the Purchaser.

Until the Goods have been fully paid for:

The whole of this clause 22 applies notwithstanding any arrangements under which the Company grants credit to the Purchaser.

Defined terms in this clause have the same meaning as those given to them in the PPSA.

The Purchaser and the Company acknowledge that these Terms of Sale constitute a Security Agreement for the purposes of s 20 of the PPSA and gives rise to a Purchase Money Security Interest (“PMSI”) in favour of the Company over the Goods supplied to the Purchaser as Grantor pursuant to the Terms of Sale.

The Goods supplied or to be supplied under these Terms of Sale fall within the PPSA classification of “Other Goods” acquired by the Purchaser pursuant to these Terms of Sale.

The Purchaser will execute such documents and do such further acts as may be required by the Company to perfect the Security Interest granted to the Company under these Terms of Sale under the PPSA by registration and ensure that until all of the obligations of the Purchaser are discharged and fully satisfied, the Company’s Security Interest under the Terms of Sale remains perfected and has priority over all other security interest in the Collateral (except for the Security Interests that the Company has expressly agreed to sub-ordinate).

The Purchaser undertakes that it will not, without the prior written consent of the Company change or permit the change of any of its details that are required to be included in the Financing Statement.

The Purchaser may not grant any Security Interest in all or any of the Goods except with the prior written consent of the Company (which may be withheld in its sole discretion).

The Purchaser agrees that the Company may apply to register its Security Interest in the Goods at any time before or after delivery of the Goods. The Purchaser irrevocably waives its rights under s 157 of the PPSA to receive a notice of any Verification Statement in respect of the Company’s Security Interest under these Terms of Sale.

The parties contract out of each provision of the PPSA which, under s 115(1) of the PPSA, they are permitted to contract out of. Each party waives its rights to receive each notice which, under s 157(3) of the PPSA, it is permitted to waive. Each party waives its rights to receive anything from any other party under s 275 of the PPSA.

The Purchaser acknowledges that it has received value as at the date of first delivery of the Goods and has not agreed to postpone the time for attachment of the Security Interest granted to the Company under these Terms of Sale.

Returns of unused and resaleable standard Goods which are not under warranty and which are listed in the published price lists, brochures and catalogues, electronic media and other advertising material of the Company may, at the Company’s sole discretion, be returned for credit, provided that the Goods are:

• returned within 14 days of delivery, free to the Company’s warehouse;
• accompanied by a delivery docket stating the Company’s original invoice number and a valid reason for the return; and
• returned in an unused, undamaged and resalable condition, in their original packing.

No Goods will be accepted for return under any circumstances (other than for reasons of wrong delivery or because the Goods are faulty) unless the invoiced value of the Goods is greater than $200.00 excluding GST.

Goods will not be accepted for return for any reason between 15 and 30 days after the date of delivery unless by prior arrangement between the Company and Purchaser, and with the payment of a restocking fee of 20% of original invoice value, or $50.00, exclusive of GST, whichever is the greater.

No Goods will be accepted for return for any reason whatsoever beyond 30 days from date of delivery.

Where Goods which have been supplied by the Company on a manufactured/assembled to order or indent only basis, the Company will not, unless agreed otherwise in writing, accept them for return except where such Goods are faulty or have been wrongly delivered against ECG drawings and/or ECG specification sheets signed off by the Purchaser prior to manufacture.

Subject to clause 30, any faulty Goods will be repaired or replaced, at the Company’s absolute discretion.

Nothing in this clause purports to modify or exclude any conditions, warranties, guarantees and undertakings under the Australian Consumer Law and the Australian Consumer Law will operate and prevail to the extent of any inconsistency.

The Company will not be liable for any loss, damage or delay arising out of its failure (or that of its suppliers and subcontractors) to perform obligations under the Terms of Sale due to causes beyond its reasonable control, including without limitation, acts of God, acts or omissions of the Purchaser or its agents, acts of civil or military authority, fires, strikes, floods, epidemics, quarantine restrictions, war, riots, acts of terrorism, delays in transportation, or transportation embargoes (Force Majeure Events). In the event of such delay, the Company’s performance date(s) will be extended for such length of time as may be reasonably necessary to compensate for the Force Majeure Event.

If a Force Majeure Event continues for a period of 3 months or more, the Company may (without affecting the accrued rights and obligations of the parties as at the date of termination) terminate this agreement immediately by written notice to the Purchaser.

Any Goods loaned or hired out by the Company and not returned to the Company within the specified loan or hire period shall be deemed to have been sold to the Purchaser, and the list price on the date for return of the loaned or hired Goods shall become due and payable by the Purchaser.

Any Goods loaned or hired out by the Company must be returned by the recipient in the original packing, and in original condition, fair and reasonable wear and tear excepted.

Any Goods loaned or hired out to the Purchaser by the Company which are returned damaged or defective, due to reasons not covered by the Company’s standard warranty provisions, will result in the Purchaser being charged for repair charges, or the cost of the Goods loaned or hired out, whichever is the lesser.

Return freight, if applicable, will be prepaid by the Purchaser.

All intellectual property rights, including but not limited to copyright, patents, design rights, trademarks, software and licences in, or related to, Goods supplied by the Company remain the property of the Company and shall not be available in any form to third parties, nor re-used by the Purchaser, unless agreed to in writing by the Company.

Any software supplied by the Company may be used by the Purchaser only on the computer or equipment configuration specified.

Use of Goods which contain, or are to be used with, standard or custom software or firmware may be subject to the Purchaser’s acceptance of additional terms and conditions in separate Company or third-party licence agreements (Third Party Licence Agreements). Where there is a conflict between any term of a Third Party Licence Agreement and these Terms of Sale, the Third Party Licence Agreement will prevail to the extent of the inconsistency. In the absence of a Third Party Licence Agreement, the Purchaser is granted a non-exclusive, non-transferable and royalty free licence to use the purchased software or firmware only in object code form and solely in conjunction with the Goods, with no rights to sublicense, disclose, disassemble, decompile, reverse engineer, or otherwise modify the software or firmware.

The Purchaser must not alter, remove, or in any way tamper with, or otherwise do anything adverse to, any intellectual property rights (including but not limited to trade marks), whether registered or unregistered, or numbers of the Company or its Suppliers attached to or placed on the Goods.

Where training forms a part of the supply of Goods, such training will be charged at a rate per 8 hour day (or part thereof) for a specified number of trainees, and cover provision of training equipment, training instructor and course handouts. Where training is carried out external to the Company’s offices, the cost of transporting equipment and instructor’s air fares, hire car for site transportation, meals, accommodation and miscellaneous out of pocket expenses will be charged at the cost to the Company plus fifteen percent. All travel time and stand-by/waiting time will be charged in accordance with the Company’s labour rate applying at the time of supply.

Subject to these Terms of Sale, any engineering or technical assistance provided by the Company, will be charged at the Company’s labour rate applying at the time assistance is provided, (including travel and stand-by/waiting time), plus expenses at the cost to the Company plus fifteen percent. Applicable expenses include, but are not limited to, those described under clause 28 for external training. Any required miscellaneous materials purchased by the Company will be charged at cost to the Company, plus 25 per cent. Any assistance provided in accordance with this clause 29 shall be at the Purchaser’s sole risk.

Where Goods are not under an express warranty or subject to a Consumer Guarantee and are returned for repair, the Company may charge a fee for inspection and preparation of a repair quotation and this fee shall be payable in the event that the Purchaser does not proceed with the repair.

Any repairs that the Company undertakes under this clause 31 are guaranteed for a period of ninety days from date of completion and only in respect of any replacement components that were used in the repair.

Despite anything to the contrary in this clause 31, the Company is not under any obligation to repair any Goods which are not under warranty.

The Purchaser agrees that it does not rely on the skill and judgment of the Company in relation to the suitability of any of the Goods for a particular purpose or application for which the Goods are required by the Purchaser and the Company is under no liability whatsoever if such Goods are not suitable and fit.

The parties will use their best endeavours and attempt in good faith to promptly resolve any dispute arising in connection with these Terms of Sale. Negotiations shall be conducted in English between representatives of the parties who have authority to settle the dispute. Negotiation must be conducted within 30 days of a party providing written notice to the other party of the matter and circumstances giving rise to the dispute (Notice of Dispute). If the dispute has not been resolved within 30 days of a party giving a Notice of Dispute, the parties will further attempt in good faith to settle the dispute by non-binding third-party mediation, with mediator fees and expenses apportioned equally to each side. If a mediator cannot be agreed upon within 10 days of a party giving a Notice of Dispute, either party may request the President of the Law Institute of Victoria to appoint a mediator. Mediation must take place within 90 days of the date of the Notice of Dispute. Any dispute not so resolved by negotiation or mediation may then be submitted to a court of competent jurisdiction in Victoria Australia in accordance with the Terms of Sale. These procedures are the exclusive procedures for the resolution of all such disputes between the parties under these Terms of Sale.

Any provision in these Terms of Sale which is invalid or unenforceable in any jurisdiction is to be read down for the purpose of that jurisdiction, if possible, so as to be valid and enforceable, and otherwise must be severed to the extent of the invalidity or unenforceability, without affecting the remaining provisions of this agreement or affecting the validity or enforceability of that provision in any other jurisdiction.

Waiver of any right, power, authority, discretion or remedy arising on a breach of or default under an agreement in force between the Company and the Purchaser on these Terms of Sale must be in writing and signed by the party granting the waiver.

Any notice or other communication including, but not limited to, any request, demand, consent or approval, to or by a party under these Terms of Sale must be in legible writing and in English addressed to such address as the other party has specified to the sender of the notice.

The Purchaser must not assign or otherwise purport to transfer its rights or obligations under these Terms of Sale to any other person without the prior written consent of the Company.

The Company reserves the right to review and amend these Terms of Sale from time to time. Written notification forwarded to the Purchaser by ordinary mail will be sufficient notification to bind the Purchaser to any revised or amended terms of sale for all orders placed by the Purchaser and accepted by the Company after the date of such notification.