Terms and Conditions of Trade

1. INTERPRETATION In this agreement:

a) “Bost” means Ramex Services Pty Ltd trading as Bost Group;

b) “Applicant” means the business or company described as the Applicant on the front page of this application for credit, and its related companies.

c) “Goods” means all goods, equipment and parts supplied by Bost whether by way of contract of sale or the use of parts in the course of servicing and repairing goods or equipment, or by way of hire;

d) “Persons” includes an individual and a corporation.

e) Headings are for ease of reference only.

2. QUOTATION

a) Unless previously withdrawn, a quotation is valid for thirty days or such other period as stated. A quotation is not to be considered as an obligation to sell but merely an invitation to treat and no contractual relationship shall arise from it until the Applicant’s order has been accepted in writing by Bost; and

b) Bost shall not be bound by any such conditions attached to the Applicant’s order/s or acceptance of a quotation, and unless such conditions are expressly accepted by Bost in writing. The Applicant acknowledges that such conditions are expressly negated; and

c) Every quotation is subject to and conditional upon obtaining any necessary import, export, or other licence.

3. DELIVERY

a) The Applicant shall take delivery of the Goods within seven days of notification by Bost that the Goods are ready for delivery and Bost shall be under no obligation to make delivery before payment of the purchase price in full.

b) If the Applicant fails to take delivery of the Goods within seven days of notification then the Applicant shall pay to Bost all storage and handling costs arising from the delay;

c) Bost shall not be liable (including liability for negligence) to the Applicant for loss, injury or damage of any kind howsoever arising (including without limitation) wilful default by Bost or its agents after the Applicant has been notified the Goods are ready for delivery.

d) Delivery of the Goods by Bost to any carrier or bailee whether named by the Applicant or not for the purpose of transmission to the Applicant shall be deemed to be delivery of the Goods to the Applicant.

e) The Applicant shall be deemed to have accepted the Goods at the time of dispatch of the Goods to the Applicant.

f) Goods are all ex-works unless otherwise stated or agreed.

4. PAYMENT

a) Unless otherwise stated, the terms of payment will be fifteen (15) days from the end of the month in which it was invoiced with the exception of parts ordered from overseas, non-standard inventory and capital items. The Applicant shall not withhold payment or make any deduction from the price in respect of any alleged set off, counter claim or dispute. The purchase price, rental, repair or service costs of the Goods may be varied by:

  • i. Any increase in the price to Bost arising from delivery of Goods or any parts not allowed for by Bost; or
  • ii. Any variation in the purchase price, rental, repair or service costs of the Goods where such variation arises from any mistake or omission on the part of Bost, or its agents in relation to the price, charges, taxes, freight or packing costs of the Goods; and
  • iii. The Applicant shall pay to Bost the amount of any such increases or variations as stated in clause 4.a) i and clause 4.a) ii.

b) For Goods of a capital nature, the Applicant shall pay to Bost the full purchase price of the Goods prior to the dispatch, unless otherwise agreed.

c) Security deposits may be required for overseas orders and against asset rentals.

5. FAILURE TO PAY

If the Applicant fails to pay any monies Bost claims is owed by the Applicant, Bost shall be entitled (without prejudice to or limitation of any other right Bost may have):

a) To charge interest thereon from the date when due until payment at the rate of 2 percent (2%) above the maximum overdraft rate of Bost’s bankers for the time being in force; and

b) To give the Applicant written notice that Bost intends to retake possession of the Goods. If the Applicant fails within seven days of the date of any such notice to pay the outstanding amount, rental charges or repair costs (and interest thereon) Bost shall be entitled to retake possession of the Goods and for that purpose the Applicant irrevocably licenses and authorises Bost to enter upon the premises where the Goods may be situated and the Applicant shall indemnify Bost against any liability/claim/loss which Bost may incur as a result.

6. GOODS AND SERVICES TAX

a) Any payment made by the Applicant under this agreement must be made inclusive of any Goods and services tax applicable to the supply of the Goods and services, or similar tax applying to that payment as stated on the invoice.

7. TITLE OF GOODS

a) Bost shall remain the sole and absolute owner of the Goods and title in the Goods does not pass to the applicant until the purchase price of the Goods has been received in full by Bost from the Applicant;

b) Until Bost has received the purchase price of the Goods in full:

  • i. The Applicant shall be the bailee of the Goods for Bost and shall store them upon its premises separately from its own Goods or those of any other person and shall store them in a manner enabling them to be readily identifiable as Bost’s Goods.
  • ii. Bost shall have the right at any time to enter the Applicant’s premises and retrieve the Goods; and
  • iii. The Applicant shall not sell or dispose of any of the Goods or any interest in the Goods.

8. PERSONAL PROPERTY SECURITIES ACT 2009 (CTH) (“PPSA”)

a) In this clause 10, PPSA means the Personal Property Securities Act 2009. If a term used in this clause has a particular meaning in the PPSA, it has the same meaning in this clause.

b) The Applicant acknowledges and agrees that these Terms and Conditions constitutes a Security Agreement which creates a Security Interest in all Goods.

c) The Applicant acknowledges that by agreeing to these Terms and Conditions, the Applicant grants a Security Interest to Bost and in all Goods supplied by Bost to the Applicant (or for the Applicant’s account) and these Terms and Conditions shall apply notwithstanding anything express or implied to the contrary contained in the Applicant’s purchase order.

d) The Applicant acknowledges and agrees that Bost may apply to register a security interest in the Goods at any time before or after delivery of the Goods. The Applicant waives its right under section 157 of the PPSA to receive notice of any verification of the registration.

e) Bost may apply amounts received from the Applicant towards amounts owing to it in such order as Bost chooses.

f) If the Applicant defaults in the performance of any obligation owed to Bost under these Terms and Conditions or any other agreement for Bost to supply Goods to the Applicant, Bost may enforce security interest in any Goods by exercising all or any of its rights under these conditions or the PPSA.

g) To the maximum extent permitted by law, the Applicant and Bost agree that the following provisions of the PPSA do not apply to the enforcement by Bost of its security interest of the Goods: sections 95, 118, 121(4), 125, 130, 132 (3) (d), 132 (4), 135, 142 and 143.

h) The Applicant must promptly do anything required by Bost to ensure that Bost’s security interest is a perfected security interest and has priority over all other security interests in the Goods.

i) To release and hold harmless Bost from any liability whatsoever in the event of any dispute between Bost and the Applicant as to whether any interest registered on the PPSR constitutes a valid Security Interest.

j) Nothing in this clause 10 is limited by any other provision of these conditions or any other agreement between the parties.

9. RETURNS

a) Bost will only accept claims for the return of Goods which are unused within 7 days of the items being received by the Applicant.

b) Goods returned due to incorrect orders by the Applicant are subject to a 20% handling/ restocking fee.

c) A return is not available on products over $10,000.00.

d) The cost of freight regarding returned Goods is to be borne by the Applicant.

10. GOODS AT APPLICANT’S SOLE RISK

a) The Goods are at the Applicant’s sole risk on and from the date of delivery in accordance with clause 3. e) notwithstanding that property has not passed to the Applicant.

11. LIABILITY AND INDEMNITY

a) Bost shall not be liable to the Applicant or any person claiming through the Applicant including without limitation any liability (including liability for negligence) in respect of loss or damage, faulty Goods or workmanship, short supply or any consequential loss of whatsoever nature unless the Applicant has given notice to Bost within seven days of the date of delivery of the Goods in which case Bost’s liability is limited to either replacement of the Goods or reimbursement of the purchase price, hire charges or repair costs paid by the Applicant.

b) The liability of Bost for breach of a condition or warranty implied into this agreement by the Trade Practices Act 1974 (as amended) shall be limited to the extent permitted by that Act and Bost shall have no obligation beyond the obligations imposed by that Act. The liability of Bost for breach of a condition or warranty implied into this agreement by the Fair Trading Act 1981 (WA) as amended shall be limited to the extent permitted by that Act and Bost shall have no obligation beyond the obligations imposed by that Act.

c) The Applicant shall indemnify Bost in relation to any liability, loss or damage of whatsoever nature Bost may incur (including costs) arising out of a breach by the Applicant of this Agreement.

12. APPLICANT’S WARRANTIES AND ACKNOWLEDGEMENTS

The Applicant hereby acknowledges, warrants and declares to Bost as follows:

a) That the Applicant has carefully examined the Goods and that the Goods have no defects other than any defects that have been noted in writing on the Bost invoice;

b) That notwithstanding any defects in the Goods the Applicant has satisfied itself:

  • i. With the quality and condition of the Goods and (if applicable) the repairs effected;
  • ii. That the Goods correspond with any description or sample;
  • iii. That the Goods are of merchantable quality; and
  • iv. The Applicant has relied upon its own skill and judgement in selecting the Goods and has not relied on any representation by Bost;

c) If the Applicant has made known to Bost the particular purpose for which the Goods are being acquired, then the Applicant warrants to Bost the fitness or possible fitness of the Goods for that purpose.

d) The Applicant acknowledges that Bost is not the manufacturer of the Goods.

13. FORCE MAJEURE

Bost shall not be liable for any failure or delay in the supply or delivery of the Goods or services where such failure or delay is wholly or partly due to any cause or circumstance whatsoever outside the reasonable control of Bost including, but not limited to war, strikes, lockouts, industrial disputes, unrest government restrictions or intervention, transport delays, fire, act of god, breakdown of plant, shortage supplies of labour, storm or tempest, theft, vandalism, riots, civil commotions or accidents of any kind.

14. GOVERNING LAW

The parties to this Agreement agree that this agreement shall be governed by the laws of Western Australia and shall only be enforced by the parties in the Courts of Western Australia.

15. LIABILITY OF TRUST

In the case where the Applicant is the trustee of a trust, it is acknowledged that the Applicant shall be liable on the invoice both as trustee of the trust and in his/her own right and that in addition the assets of the trust shall be available to meet payment of the invoice.

16. COSTS AND EXPENSES

Any expenses, costs or disbursements including solicitors' costs incurred by Bost in recovering any outstanding monies shall be paid by the Applicant immediately upon the Applicant receiving written demand for payment from Bost.

17. CHANGES TO TERMS AND CONDITIONS OF TRADE

The company reserves the right to change these terms at any time. Written notice to the Applicant given by ordinary mail is deemed to be sufficient notice of any change and will bind the Applicant in respect of any supply of Goods after the date of deemed notification.

Terms and Conditions of Rental

1. INTERPRETATION In this agreement:

1.1 “Agreement” has the meaning of Terms and Conditions of Rental.

1.2 “Bost” means Ramex Services Pty Ltd trading as Bost Group.

1.3 “Business Day” means a day on which banks are open for trading.

1.4 “Commencement Date” means the date specified in the Rental Terms of the Rental Agreement.

1.5 “Controller” has the meaning given in the Corporations Act.

1.6 “Corporations Act” means the Corporations Act 2001 (Cth).

1.7 “Goods” means all goods, equipment and parts supplied by Bost whether by way of contract of sale or the use of parts in the course of servicing and repairing goods or equipment, or by way of hire.

1.8 “Delivery Charges” means the charges specified on the Rental Agreement.

1.9 “GST Act” means A New Tax System (Goods and Services Tax) Act 1999.

1.10 “Hirer” means the person or body corporate with whom the Agreement is made, as specified as the Hirer on the Rental Agreement.

1.11 “Insolvency Event” means any of the following events in respect of the Hirer:

  • (a) it is (or states that it is) an insolvent under administration or insolvent (each as defined in the Corporations Act); or
  • (b) it is in liquidation, in provisional liquidation, under administration or wound up or has had a Controller appointed to any of its property; or
  • (c) it is subject to any arrangement, assignment, moratorium or composition, protected from creditors under any statute or dissolved (in each case, other than to carry out a reconstruction or amalgamation while solvent on terms approved by the other parties to this agreement); or
  • (d) an application or order has been made (and in the case of an application, it is not stayed, withdrawn or dismissed within 30 days), resolution passed, proposal put forward, or any other action taken, in each case in connection with that person, which is preparatory to or could result in any of (a), (b) or (c) above; or
  • (e) it is otherwise unable to pay its debts when they fall due.

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

1.13 “Rental Agreement” means the document specifying the agreed details in respect to the hire of Goods, including (but not limited to) the identity of the Goods, hire or rental charges, fees, term of the hire and details regarding the Hirer.

1.14 “Rental Payment” means the amount payable as detailed in the Rental Terms of the Rental Agreement.

1.15 “Rental Period” means the period for which the Goods shall be hired by the Hirer under the terms of the Rental Agreement, commencing on the date specified as the Commencement Date (subject to early termination or extension pursuant to the terms of this Agreement).

1.16 “Rental Terms” means the terms under which the Goods are hired.

1.17 “Risk Period” has the meaning given to that term in clause 7.4.

1.18 “Location of Equipment” means the site and address where the Goods are to be located by the Hirer, as specified on the Rental Agreement.

1.19 “Terms and Conditions of Rental” means the document titled Terms and Conditions of Rental in its entirety including the Rental Agreement between the Hirer and Bost relating to the hire of Goods as may be varied from time to time.

1.20 Headings are for ease of reference only

2. APPLICATION OF THIS AGREEMENT

2.1 The Hirer agrees to hire the Goods on the terms and conditions set out in this Agreement.

2.2 The parties agree that this Agreement documents the commercial arrangements between Bost and the Hirer in respect to the hire of Goods.

2.3 This Agreement shall be in force from the Commencement Date until it is terminated in accordance with the terms of this Agreement.

3. GOODS HIRE

3.1 Bost agrees to hire the Goods to the Hirer for the Rental Period.

3.2 Bost shall not, other than in the exercise of its rights under this Agreement or applicable law, interfere with the Hirer's quiet possession of the Goods.

3.3 From time to time the parties may vary the terms of this Agreement by entering into new Rental Agreements in accordance with clauses 17.1.

4. RENTAL PAYMENT

4.1 Bost will issue a tax invoice for any Rental Payments and the Hirer must pay the Rental Payments to Bost in accordance with the terms set out in the Rental Agreement.

4.2 All payments to be made by the Hirer under this Agreement, including but not limited to charges outlined in the Rental Terms, shall be made without withholding or set-off on account of disputes, counterclaims or for any other reason whatsoever.

4.3 Where a security deposit is applicable, this must be paid prior to the Commencement Date.

5. FAILURE TO PAY

5.1 If the Hirer fails to pay any monies Bost claims is owed by the Hirer, Bost shall be entitled (without prejudice to or limitation of any other right Bost may have):

  • 5.1.1 To charge interest thereon from the date when due until payment at the rate of 2 percent (2%) above the maximum overdraft rate of Bost’s bankers for the time being in force; and
  • 5.1.2 To give the Hirer written notice that Bost intends to retake possession of the Goods. If the Hirer fails within seven days of the date of any such notice to pay the outstanding amount, rental charges or repair costs (and interest thereon), Bost shall be entitled to retake possession of the Goods and for that purpose the Hirer irrevocably licenses and authorises Bost to enter upon the premises where the Goods may be situated and the Hirer shall indemnify Bost against any liability/claim/loss which Bost may incur as a result.

6. DELIVERY

6.1 The Hirer is responsible for the collection of the Goods at the Commencement Date and/or the delivery of the Goods to Bost at the end of the Hire Period:

  • 6.1.1 The Hirer shall bear its own costs and expenses in relation to such collection and/or delivery of the Goods; and
  • 6.1.2 The Goods shall be collected from, and/or delivered to, such other location or site as Bost may notify the Hirer from time to time.

6.2 If Bost is responsible for arranging the delivery of the Goods to the Hirer at the Commencement Date and/or the collection of the Goods from the Hirer at the end of the Hire Period:

  • 6.2.1 the Hirer must, subject to clause 5.2.2, pay Bost the Delivery Charges in respect of any delivery or collection of the Goods by Bost; and
  • 6.2.2 The Goods shall be delivered to, and/or collected from, the Location of Equipment. If Bost is required to the deliver the Goods to and/or collect the Goods from another location or site, Bost may charge a reasonable additional sum for any further costs that will be incurred for the delivery and/or collection.

7. TITLE, RISK AND INSURANCE

7.1 The Goods at all times remains the property of Bost, and the Hirer has no right, title or interest in or to the Goods (save the right to possession and use of the Goods during the Hire Period subject to the terms and conditions of this Agreement).

7.2 The risk of loss, theft, damage or destruction of the Goods passes to the Hirer from the time of collection to the time of return.

7.3 The Goods remain at the Hirer’s sole risk during the Hire Period and any further term during which the Goods are in the Hirers possession, custody or control (Risk Period) until such time as the Goods are returned to Bost or their nominated return location.

7.4 During the Hire Period and the Risk Period, the Hirer must obtain and maintain the following insurances (at the Hirer’s own expense):

  • 7.4.1 Insurance of the Goods to a value not less than its full replacement value comprehensively against all usual risks of loss, damage or destruction by fire, theft or accident, and such other risks as Bost may from time to time nominate in writing;
  • 7.4.2 Insurance for such amounts as a prudent owner or operator of the Goods would insure for, or such amount as Bost may from time to time reasonably require, to cover any third party or public liability risks of whatever nature and however arising in connection with the Goods; and
  • 7.4.3 Insurance against such other or further risks relating to the Goods as may be required by Law, together with such other insurance as Bost may from time to time consider reasonably necessary and advise to the Hirer.

7.5 All insurance policies procured by the Hirer shall be endorsed to provide Bost with at least 20 Business Days’ prior written notice of cancellation or material change (including any reduction in coverage or policy amount) and shall name Bost on the policies as a loss payee in relation to any claim relating to the Goods. The Hirer shall be responsible for paying any deductibles due on any claims under such insurance policies.

7.6 The Hirer shall, on demand, supply Certificates of Currency of relevant insurance policies or other insurance confirmation acceptable to Bost and proof of premium payment to Bost to confirm the insurance arrangements.

8. HIRER'S RESPONSIBILITIES

8.1 During the term of this Agreement the Hirer must comply with the following:

  • 8.1.17 Return the Goods at the end of the Hire Period at such address as Bost requires;
  • 8.1.18 At the time the Goods are returned under subclause 8.1.17 above, ensure that the Goods are clean in its original hire condition at the Commencement Date, including that it has the same level of fuel and/or gas (as the case may be) as it did at the Commencement Date;
  • 8.1.19 Not do or permit to be done anything which could invalidate the insurances referred to in clause 7 above;
  • 8.1.20 At the Hirer’s own expense ensure the delivery site is prepared so as to satisfy the electrical, environmental or other physical requirements to permit safe delivery of the Goods;
  • 8.1.21 Ensure persons operating or erecting the Goods are suitably instructed or trained in its safe and proper use and where necessary hold a certificate of competency and are licensed to use the Goods;
  • 8.1.22 Display and maintain all safety signs and instructions (as required by law) and ensure that all instructions and signs are observed and obeyed by those using the Goods;
  • 8.1.23 Ensure all persons using or erecting the Goods wear suitable clothing and protective equipment as required by any statutory law or regulation.
  • 8.1.24 The hirer is responsible for sending hire usage sheets to Bost by COB every Monday. Failure to do so will incur the minimum hourly usage charge.
  • 8.1.25 The hirer is responsible for notifying Bost of all breakdown, wet weather and off hire periods. Notification will only be accepted if the Hirer notifies Bost by 9am on the day of incident.

8.2 The Hirer acknowledges that Bost shall not be responsible for any loss or damage arising out of or in connection with any negligence, use, misuse, mishandling of the Goods or otherwise caused by any act or omission by the Hirer or their officers, employees, agents and contractors.

9. DAMAGE AND LOSS

9.1 Where the Goods are stolen, suffers damage, or is involved in an accident the Hirer will:

  • 9.1.1 immediately notify Bost and will act in accordance with the instructions given by Bost;
  • 9.1.2 immediately cease use of the damaged Goods;
  • 9.1.3 immediately report any theft or accident to the Police and record the relevant details of any second or third parties involved in any accident and provide Bost with a copy of any police report immediately upon Bost’s request;
  • 9.1.4 not make any offer, promise of payment, settlement or admission of liability to any party;
  • 9.1.5 permit Bost or its insurer to bring, defend, enforce or settle any legal proceedings in the Hirer’s name.

10. PERSONAL PROPERTY SECURITIES ACT 2009 (CTH) (“PPSA”)

10.1 PPSA means the Personal Property Securities Act 2009. If a term used in this clause has a particular meaning in the PPSA, it has the same meaning in this clause.

10.2 The Applicant acknowledges and agrees that these Terms and Conditions constitutes a Security Agreement which creates a Security Interest in all Goods.

10.3 The Applicant acknowledges that by agreeing to these Terms and Conditions, the Applicant grants a Security Interest to Bost and in all Goods supplied by Bost to the Applicant (or for the Applicant’s account) and these Terms and Conditions shall apply notwithstanding anything express or implied to the contrary contained in the Applicant’s purchase order.

10.3 The Applicant acknowledges and agrees that Bost may apply to register a security interest in the Goods at any time before or after delivery of the Goods. The Applicant waives its right under section 157 of the PPSA to receive notice of any verification of the registration.

10.5 Bost may apply amounts it receives from the Applicant towards amounts owing to it in such order as Bost chooses.

10.6 If the Applicant defaults in the performance of any obligation owed to Bost under these Terms and Conditions or any other agreement for Bost to supply Goods to the Applicant, Bost may enforce security interest in any Goods by exercising all or any of its rights under these conditions or the PPSA.

10.7 To the maximum extent permitted by law, the Applicant and Bost agree that the following provisions of the PPSA do not apply to the enforcement by Bost of its security interest of the Goods: sections 95, 118, 121(4), 125, 130, 132 (3) (d), 132 (4), 135, 142 and 143.

10.8 The Applicant must promptly do anything required by Bost to ensure that Bost’s security interest is a perfected security interest and has priority over all other security interests in the Goods.

10.9 To release and hold harmless Bost from any liability whatsoever in the event of any dispute between Bost and the Applicant as to whether any interest registered on the PPSR constitutes a valid Security Interest.

10.10 Nothing in this clause 8 is limited by any other provision of these conditions or any other agreement between the parties.

11. WARRANTY

11.1 Bost warrants that as at the Commencement Date, the Goods shall substantially conform to its specification (as made available by Bost), be of satisfactory quality and fit for any purpose expressly stated in writing by Bost. Bost shall use all reasonable endeavours to remedy, free of charge, any material defect (materiality as determined by Bost acting reasonably) in the Goods which manifests itself within one month from the Commencement Date, provided that:

  • 11.1.1 the Hirer notify Bost of any defect in writing as soon as practicable and in any event within 2 Business Days of becoming aware of the defect;
  • 11.1.2 Bost is permitted to make a full examination of the alleged defect;
  • 11.1.3 the defect did not materialise as a result of misuse, neglect, alteration, mishandling or unauthorised manipulation by any person other than Bost's authorised personnel;
  • 11.1.4 the defect did not arise out of any information, design or any other assistance supplied or furnished by the Hirer or on theirbehalf;
  • 11.1.5 the defect is directly attributable to defective material, workmanship or design; and
  • 11.1.6 the maximum aggregate cost of rectifying all such defects within one month from the Commencement Date of the Goods does not exceed $50,000.

11.2 Insofar as the Goods comprise or contain equipment or components which were not manufactured or produced by Bost, the Hirer shall be entitled only to such warranty or other benefit as Bost has received from the manufacturer.

12. LIABILITY AND INDEMNITY

12.1 Bost shall not be liable to the Hirer or any person claiming through the Hirer including without limitation any liability (including liability for negligence) in respect of loss or damage, faulty Goods or workmanship, short supply or any consequential loss of whatsoever nature unless the Hirer has given notice to Bost within seven days of the Commencement Date of the Goods in which case Bost’s liability is limited to either replacement of the Goods or reimbursement of the purchase price, hire charges or repair costs paid by the Hirer.

12.2 The liability of Bost for breach of a condition or warranty implied into this agreement by the Trade Practices Act 1974 (as amended) shall be limited to the extent permitted by that Act and Bost shall have no obligation beyond the obligations imposed by that Act. The liability of Bost for breach of a condition or warranty implied into this agreement by the Fair Trading Act 1981 (WA) as amended shall be limited to the extent permitted by that Act and Bost shall have no obligation beyond the obligations imposed by that Act.

12.3 The Hirer shall indemnify Bost in relation to any liability, loss or damage of whatsoever nature Bost may incur (including costs) arising out of a breach by the Hirer of this Agreement.

12.3 Bost will not be liable for any claim in relation to the Hirer’s downtime or loss of profits, revenue, business or any other indirect or consequential loss or damage as a result of the hire of Goods.

13. TERMINATION

13.1 Bost may, without prejudice to any other right or remedy which may be available to it, terminate this Agreement immediately by written notice to the Hirer if:

  • 13.1.1 the Hirer defaults in any of their payment obligations;
  • 13.1.2 the Hirer commits a material breach of this Agreement which breach is irremediable, or which breach (if remediable) is not remedied within 5 Business Days after the service of written notice from Bost requiring the Hirer to do so;
  • 13.1.3 an Insolvency Event occurs with respect to the Hirer; or
  • 13.1.4 the Hirer suspend or cease, or threaten to suspend or cease, carrying on all or a substantial part of their business.

13.2 This Agreement shall automatically terminate if a total loss or write off occurs in relation to the Goods, howsoever caused.

13.3 Upon termination of this Agreement, however caused:

  • 13.3.1 Bost's consent to the Hirer’s possession of the Goods shall terminate and Bost may, by its authorised representatives, without notice and at the Hirer’s expense, retake possession of the Goods and for this purpose may enter site of the Location of Equipment or any premises at which the Goods are located; and
  • 13.3.2 without prejudice to any other rights or remedies of the Hirer, the Hirer shall pay to Bost on demand:
    • (a) all Rental Payments and other sums due but unpaid at the date of such demand together with any interest accrued pursuant to clause 5;
    • (b) any costs and expenses incurred by Bost in recovering the Goods and/or in collecting any sums due under this Agreement (including but not limited to storage, insurance, repair, transport, legal and remarketing costs).

13.3 Upon termination of this Agreement pursuant to clause 13.1, any other repudiation of this Agreement by the Hirer which is accepted by Bost or pursuant to clause 13.2, without prejudice to any other rights or remedies of Bost, the Hirer shall pay to Bost on demand a sum equal to the whole of the Rental Payments that would (but for the termination) have been payable if the Agreement had continued from the date of such demand to the end of the Rental Period.

13.5 The sums payable pursuant to clause 13.3 shall be agreed compensation for Bost's loss and shall be payable in addition to the sums payable pursuant to clause 13.3.2.

13.6 Termination of this Agreement shall be without prejudice to the rights and obligations of the parties accrued up to the date of termination.

14. FORCE MAJEURE

14.1 Neither party shall be in breach of this Agreement nor liable for delay in performing, or failure to perform, any of its obligations under this Agreement if such delay or failure result from events, circumstances or causes beyond its reasonable control, and in such circumstances the affected party shall be entitled to a reasonable extension of the time for performing such obligations, provided that if the period of delay or non-performance continues for one month, the party not affected may terminate this Agreement by giving five Business Days' written notice to the other party.

15. GST

15.1 Any payment made by the Hirer under this agreement must be made inclusive of any Goods and Services Tax applicable to the supply of the Goods and services, or similar tax applying to that payment as stated on the invoice.

16. NOTICES

Agreement and delivery

16.1 A notice, consent, information or request that must or may be given or made to a party under this document is only given or made if it is:

  • 16.1.1 delivered or posted to that party at the address stated in the Rental Agreement;
  • 16.1.2 faxed to that party at the fax number stated in the Rental Agreement (or at such other address or fax number as may have been notified by that party to the other party, from time to time); or
  • 16.1.3 emailed to that Party to the email address stated in the Rental Agreement.

Execution of emails

16.2 In the case of email notices, the sending party must ensure that each email is either signed by means of an electronically produced signature of a person authorised by that party to send the email or states that is being sent by a person authorised to send the email on behalf of that party.

17. GENERAL

Variation

17.1 This Agreement, and any schedules, can only be varied by the parties in writing, signed by all of the parties.

Waiver

17.2 The fact that a party fails to do, or delays in doing, something that party is entitled to do under this document does not amount to a waiver of that party’s right to do it.

17.3 A waiver by a party is only effective if it is in writing.

17.3 A written waiver by a party is:

  • 17.4.1 only effective in relation to the particular obligation or breach in respect of which it is given; and
  • 17.4.2 is not to be taken as an implied waiver of:
    • (a) any other obligation or breach; or Any expenses, costs or disbursements including solicitors' costs incurred by Bost in recovering any outstanding monies shall be paid by the Applicant immediately upon the Applicant receiving written demand for payment from Bost.
    • (b) that obligation or breach in relation to any other occasion.

Entire Agreement

17.5 This document contains everything that the parties have agreed on in relation to the matters it deals with. No party can rely on an earlier document, or anything said or done by another party (or a director, officer, agent or employee of that party), before this document was executed.

Severability

17.6 If:

  • 17.6.1 a clause or part of a clause can be read in a way that makes it illegal, unenforceable or invalid, but can also be read in a way that makes it legal, enforceable and valid, it must be read in the latter way;
  • 17.6.2 any clause or part of a clause is illegal, unenforceable or invalid, that clause or part is to be treated as removed from this document, but the rest of this document is not affected; and
  • 17.6.3 the removal of a clause or part of a clause under clause 16.7 materially alters the commercial allocation of benefit and risk (or management of risk) under this document, the parties agree to negotiate in good faith to amend or modify the terms of the document as may be necessary or desirable having regard to the original terms of the bargain and the prevailing circumstances.

Further Cooperation

17.7 Each party must do anything (including executing a document) another party reasonably requires in writing to give full effect to this document.

Relationship of the parties

17.8 This document does not create a partnership, agency, fiduciary or any other relationship, except the relationship of contracting parties, between the parties.

17.9 No party is liable for an act or omission of another party, except to the extent set out in this document.

Governing Law and Jurisdiction

17.10 This document is governed by the Law of the State of Western Australia. The parties submit to the non-exclusive jurisdiction of its courts. The parties will not object to the exercise of jurisdiction by those courts on any basis.