1.1 “Contractor” means Stageset Pty Ltd, its successors and assigns or any person acting on behalf of and with the authority of Stageset Pty Ltd.
1.2 “Client” means the person/s or any person acting on behalf of and with the authority of the Client requesting the Contractor to provide the services as specified in any proposal, quotation, order, invoice or other documentation, and:
(a) if there is more than one Client, is a reference to each Client jointly and severally; and
(b) if the Client is a part of a Trust, shall be bound in their capacity as a trustee; and
(c) includes the Client’s executors, administrators, successors and permitted assigns.
1.3 “Equipment” means all Equipment (including any accessories) supplied on hire by the Contractor to the Client (and where the context so permits shall include any incidental supply of services). The Equipment shall be as described on the invoices, quotation, authority to hire, or any other work authorisation forms as provided by the Contractor to the Client.
1.4 “Services” shall mean all Services performed by the Contractor (including but not limited to, designing, consulting, erecting and dismantling) to the Client (and where the context so permits shall include any supply of Equipment as defined above) and includes any advice or recommendations.
1.5 “Minimum Hire Period” means the Minimum Hire Period as described on the invoices, quotation, authority to hire, or any other forms as provided by the Contractor to the Client.
1.6 “Price” means the cost of the hire of the Equipment (plus any GST where applicable) as agreed between the Contractor and the Client subject to clause 5 of this contract.
1.7 “GST” means Goods and Services Tax as defined within the “A New Tax System (Goods and Services Tax) Act 1999” (Cth).
2.1 The Client is taken to have exclusively accepted and is immediately bound, jointly and severally, by these terms and conditions if the Client places an order for, or accepts delivery of, the Equipment.
2.2 These terms and conditions may only be amended with the consent of both parties in writing, and shall prevail to the extent of any
inconsistency with any other document or contract between the Client and the Contractor.
2.3 Electronic signatures shall be deemed to be accepted by either party providing that the parties have complied with Section 9 of the Electronic Transactions (Victoria) Act 2000 or any other applicable provisions of that Act or any Regulations referred to in that Act.
3.1 The Client acknowledges and accepts that the Contractor shall, without prejudice, accept no liability in respect of any alleged or actual error(s) and/or omission(s):
(a) resulting from an inadvertent mistake made by the Contractor in the formation and/or administration of this contract; and/or
(b) contained in/omitted from any literature (hard copy and/or electronic) supplied by the Contractor in respect of the Equipment hire and/or/services.
3.2 In the event such an error and/or omission occurs in accordance with clause 3.1, and is not attributable to the negligence and/or wilful misconduct of the Contractor; the Client shall not be entitled to treat this contract as repudiated nor render it invalid.
4.1 The Client shall give the Contractor not less than fourteen (14) days prior written notice of any proposed change of ownership of the Client and/or any other change in the Client’s details (including but not limited to, changes in the Client’s name, address, contact phone or faxnumber/s, change of trustees or business practice). The Client shall be liable for any loss incurred by the Contractor as a result of the Client’s failure to comply with this clause.
5.1 At the Contractor’s sole discretion the Price shall be either;
(a) as indicated on invoices provided by the Contractor to the Client in respect of Equipment supplied on hire; or
(b) the Contractor’s quoted Price (subject to clause 5.2) which shall be binding upon the Contractor provided that the Client shall accept in writing the Contractor’s quotation within thirty (30) days.
5.2 The Contractor reserves the right to change the Price in the event of a variation to the Contractor’s quotation. Any variation from the plan of scheduled Services or specifications of the Equipment (including, but not limited to, any variation as a result of additional Equipment required due to hidden or unidentifiable difficulties, changes to engineering or safety requirements, or as a result of increases to the Contractor in the cost of labour etc.) will be charged for on the basis of the Contractor’s quotation, and will be detailed in writing, and shown as variations on the Contractor’s invoice. The Client shall be required to respond to any variation submitted by the Contractor within ten (10) working days. Failure to do so will entitle the Contractor to add the cost of the variation to the Price. Payment for all variations must be made in full at the time of their completion.
5.3 At the Contractor’s sole discretion, a deposit (in the form of a bond) shall be required at the commencement of this contract, which shall be refunded to the Client by within thirty (30) days of the return of the Equipment, provided that the Client has complied with their obligations hereunder. The deposit may be used to offset any applicable charges payable by the Client under clause 15.2, and any outstanding balance thereof shall be due as per clause 5.4.
5.4 Time for payment for the Equipment being of the essence, the Price will be payable by the Client on the date/s determined by the Contractor, which may be:
(a) on delivery of the Equipment; or
(b) before delivery of the Equipment; or
(c) by way of instalments/progress payments in accordance with the Contractor’s payment schedule;
(d) thirty (30) days following the end of the month in which a statement is posted to the Client’s address or address for notices;
(e) the date specified on any invoice or other form as being the date for payment; or
(f) failing any notice to the contrary, the date which is seven (7) days following the date of any invoice given to the Client by the Contractor.
5.5 Payment may be made by cash, cheque, bank cheque, electronic/on-line banking, or by any other method as agreed to between the Client and the Contractor.
5.6 The Client shall not be entitled to set off against, or deduct from the Price, any sums owed or claimed to be owed to the Client by the Contractor nor to withhold payment of any invoice because part of that invoice is in dispute.
5.7 Unless otherwise stated the Price does not include GST. In addition to the Price the Client must pay to the Contractor an amount equal to any GST the Contractor must pay for any supply by the Contractor under this or any other contract for the hire of the Equipment. The Client must pay GST, without deduction or set off of any other amounts, at the same time and on the same basis as the Client pays the Price. In addition, the Client must pay any other taxes and duties that may be applicable in addition to the Price except where they are expressly included in the Price.
5.8 Receipt by the Contractor of any form of payment other than cash shall not be deemed to be payment until that form of payment has been honoured, cleared or recognised.
6.1 Where the Equipment does not have a timing device installed hire charges shall commence from the time the Equipment departs from the Contractor’s premises and will continue until the return of the Equipment to the Contractor’s premises, and/or until the expiry of the Minimum Hire Period, whichever last occurs.
6.2 The date upon which the Client advises of termination shall in all cases be treated as a full day’s hire.
6.3 No allowance whatsoever can be made for time during which the Equipment is not in use for any reason, unless the Contractor confirms special prior arrangements in writing. In the event of Equipment breakdown provided the Client notifies the Contractor immediately, hiring charges will not be payable during the time the Equipment is not working, unless the condition is due to negligence or misuse on the part of or attributable to the Client.
6.4 Off-hire receipts will only be issued when the Equipment has been either collected by the Contractor, or returned to the Contractor’s premises.
7.1 Delivery (“Delivery”) of the Equipment is taken to occur at the time that:
(a) the Client or the Client’s nominated carrier takes possession of the Equipment at the Contractor’s premises; or
(b) the Contractor (or the Contractor’s nominated carrier) delivers the Equipment to the Client’s nominated address even if the Client is not present at the address.
7.2 At the Contractor’s sole discretion the cost of delivery is included in the Price.
7.3 The Contractor may deliver the Equipment by separate instalments. Each separate instalment shall be invoiced and paid for in accordance with the provisions in these terms and conditions.
7.4 Any time specified by the Contractor for delivery of the Equipment is an estimate only and the Contractor will not be liable for any loss or damage incurred by the Client as a result of delivery being late. However both parties agree that they shall make every endeavour to enable the Equipment to be supplied at the time and place as was arranged between both parties. In the event that the Contractor is unable to supply the Equipment as agreed solely due to any action or inaction of the Client, then the Contractor shall be entitled to charge a reasonable fee for re-supplying the Equipment at a later time and date, and/or for storage of the Equipment.
8.1 The Contractor retains property in the Equipment nonetheless all risk for the Equipment passes to the Client on Delivery.
8.2 The Client accepts full responsibility for the safekeeping of the Equipment and indemnifies the Contractor for all loss, theft, or damage to the Equipment howsoever caused and without limiting the generality of the foregoing whether or not such loss, theft, or damage is attributable to any negligence, failure, or omission of the Client.
8.3 The Client will insure, or self-insure, the Contractor’s interest in the Equipment against physical loss or damage including, but not limited to, the perils of accident, fire, theft and burglary and all other usual risks and will affect adequate Public Liability Insurance covering any loss,damage or injury to property arising out of the Equipment. Further the Client will not use the Equipment nor permit it to be used in such a manner as would permit an insurer to decline any claim.
8.4 The Client accepts full responsibility for and shall keep the Contractor indemnified against all liability in respect of all actions, proceedings, claims, damages, costs and expenses in respect of any injury to persons, damage to property, or otherwise arising out of the use of the Equipment during the hire period and whether or not arising from any negligence, failure or omission of the Client or any other persons.
9.1 The Client shall ensure that the Contractor has clear and free access to the work site at all times to enable them to undertake the Services. The Contractor shall not be liable for any loss or damage to the site (including, without limitation, damage to pathways, driveways and concreted or paved or grassed areas) unless due to the negligence of the Contractor.
10.1 The Client and the Contractor shall comply with the provisions of all statutes, regulations and bylaws of government, local and other public authorities that may be applicable to the works.
10.2 The Client shall obtain (at the expense of the Client) all licenses and approvals that may be required for the Services.
10.3 The Client agrees that the site will comply with any work health and safety (WHS) laws relating to building/construction sites and any other relevant safety standards or legislation.
11.1 The Equipment is and will at all times remain the absolute property of the Contractor, and the Client must return the Equipment to the Contractor upon request to do so.
11.2 If the Client fails to return the Equipment to the Contractor as is required under this contract or when requested to do so, then the Contractor or the Contractor’s agent may (as the invitee of the Client) enter upon and into any land and premises owned, occupied or used by the Client, or any premises where the Equipment is situated and take possession of the Equipment, without being responsible for any damage thereby caused. Any costs incurred by the Contractor as a result of the Contractor so repossessing the Equipment shall be charged to the Client.
11.3 The Client is not authorised to pledge the Contractor’s credit for repairs to the Equipment or to create a lien over the Equipment in respect of any repairs.
12.1 In this clause financing statement, financing change statement, security agreement, and security interest has the meaning given to it by the PPSA.
12.2 Upon assenting to these terms and conditions in writing the Client acknowledges and agrees that these terms and conditions constitute a security agreement for the purposes of the PPSA and creates a security interest in all Equipment that has previously been supplied and that will be supplied in the future by the Contractor to the Client.
12.3 The Client undertakes to:
(a) promptly sign any further documents and/or provide any further information (such information to be complete, accurate and up-to-date in all respects) which the Contractor may reasonably require to:
(i) register a financing statement or financing change statement in relation to a security interest on the Personal Property Securities
Register;
(ii) register any other document required to be registered by the PPSA; or
(iii) correct a defect in a statement referred to in clause 12.3(a)(i) or 12.3(a)(ii);
(b) indemnify, and upon demand reimburse, the Contractor for all expenses incurred in registering a financing statement or financing change statement on the Personal Property Securities Register established by the PPSA or releasing any Equipment charged thereby;
(c) not register a financing change statement in respect of a security interest without the prior written consent of the Contractor;
(d) not register, or permit to be registered, a financing statement or a financing change statement in relation to the Equipment in favour of a third party without the prior written consent of the Contractor.
12.4 The Contractor and the Client agree that sections 96, 115 and 125 of the PPSA do not apply to the security agreement created by these terms and conditions.
12.5 The Client waives their rights to receive notices under sections 95, 118, 121(4), 130, 132(3)(d) and 132(4) of the PPSA.
12.6 The Client waives their rights as a grantor and/or a debtor under sections 142 and 143 of the PPSA.
12.7 Unless otherwise agreed to in writing by the Contractor, the Client waives their right to receive a verification statement in accordance with section 157 of the PPSA.
12.8 The Client must unconditionally ratify any actions taken by the Contractor under clauses 12.3 to 12.5.
12.9 Subject to any express provisions to the contrary (including those contained in this clause 12), nothing in these terms and conditions is intended to have the effect of contracting out of any of the provisions the PPSA.
13.1 In consideration of the Contractor agreeing to supply Equipment, the Client charges all of its rights, title and interest (whether joint or several) in any land, realty or other assets capable of being charged, owned by the Client either now or in the future, to secure the performance by the Client of its obligations under these terms and conditions (including, but not limited to, the payment of any money).
13.2 The Client indemnifies the Contractor from and against all the Contractor’s costs and disbursements including legal costs on a solicitor and own client basis incurred in exercising the Contractor’s rights under this clause.
13.3 The Client irrevocably appoints the Contractor and each director of the Contractor as the Client’s true and lawful attorney/s to perform all necessary acts to give effect to the provisions of this clause 13 including, but not limited to, signing any document on the Client’s behalf.
14.1 The Client must inspect the Equipment on delivery and must within three (3) days of delivery notify the Contractor in writing of any evident defect/damage, shortage in quantity, or failure to comply with the description or quote. The Client must notify any other alleged defect in the Equipment as soon as reasonably possible after any such defect becomes evident. Upon such notification the Client must allow the Contractor to inspect the Equipment.
14.2 Under applicable State, Territory and Commonwealth Law (including, without limitation the CCA), certain statutory implied guarantees and warranties (including, without limitation the statutory guarantees under the CCA) may be implied into these terms and conditions (NonExcluded Guarantees).
14.3 The Contractor acknowledges that nothing in these terms and conditions purports to modify or exclude the Non-Excluded Guarantees.
14.4 Except as expressly set out in these terms and conditions or in respect of the Non-Excluded Guarantees, the Contractor makes no warranties or other representations under these terms and conditions including but not limited to the quality or suitability of the Equipment. The Contractor’s liability in respect of these warranties is limited to the fullest extent permitted by law.
14.5 If the Client is a consumer within the meaning of the CCA, the Contractor’s liability is limited to the extent permitted by section 64A of Schedule 2.
14.6 If the Contractor is required to rectify, re-supply, or pay the cost of re-supplying any services or Equipment under this clause or the CCA, but is unable to do so, then the Contractor may refund any money the Client has paid for the services or Equipment but only to the extent that such refund shall take into account the value of any services or Equipment and consumables which have been provided to the Client which were not defective.
14.7 If the Client is not a consumer within the meaning of the CCA, the Contractor’s liability for any defect or damage in the services or Equipment is:
(a) limited to the value of any express warranty or warranty card provided to the Client by the Contractor at the Contractor’s sole discretion;
(b) limited to any warranty to which the Contractor is entitled, if the Contractor did not manufacture the Equipment;
(c) otherwise negated absolutely.
14.8 Notwithstanding clauses 14.1 to 14.7 but subject to the CCA, the Contractor shall not be liable for any defect or damage which may be caused or partly caused by, or arise as a result of:
(a) the Client failing to properly maintain or store any Equipment;
(b) the Client interfering with the Equipment in any way without the Contractor’s written approval to do so;
(c) the Client using the Equipment for any purpose other than that for which it was designed;
(d) the Client continuing the use of the Equipment after any defect became apparent or should have become apparent to a reasonably
prudent operator or user;
(e) the Client failing to follow any instructions or guidelines provided by the Contractor;
(f) fair wear and tear, any accident, or act of God.
14.9 The Contractor may in its absolute discretion accept non-defective, early returns and/or Equipment surplus to requirement for return in which case the Contractor may require the Client to pay handling fees of up to twenty percent (20%) of the value of the returned Goods plus any freight costs.
15.1 The Client shall:
(a) notify the Contractor immediately by telephone of the full circumstances of any mechanical breakdown or accident. The Client is not absolved from the requirements to safeguard the Equipment by giving such notification;
(b) satisfy itself at commencement that the Equipment is suitable for its purposes;
(c) operate the Equipment safely, strictly in accordance with the law, only for its intended use, and in accordance with any manufacturer’s instruction whether supplied by the Contractor or posted on the Equipment;
(d) keep the Equipment in their own possession and control and shall not assign the benefit of the hire contract nor be entitled to take a lien, or grant any encumbrance over the Equipment;
(e) not alter or make any additions to the Equipment including but without limitation altering, make any additions to, defacing or erasing any identifying mark, plate or number on or in the Equipment or in any other manner interfere with the Equipment;
(f) use the Equipment solely for the Client’s own works and shall not permit the Equipment of any part thereof to be used by any other party for any other work.
15.2 Immediately on request by the Contractor the Client will pay:
(a) the new list price of any Equipment, accessories or consumables that are for whatever reason destroyed, written off or not returned to the Contractor;
(b) all costs incurred in cleaning the Equipment;
(c) all costs of repairing any damage caused by the ordinary use of the Equipment up to an amount equal to ten percent (10%) of the new list price of the Equipment;
(d) the cost of repairing any damage to the Equipment caused by wilful or negligent actions of the Client or the Client’s employees;
(e) the cost of repairing any damage to the Equipment caused by vandalism, or (in the Contractor’s reasonable opinion) in any way
whatsoever other than by the ordinary use of the Equipment by the Client;
(f) any costs incurred by the Contractor in picking up and returning the Equipment to the Owners premises if the Client does not return the Equipment to the Owners premises or any pre-agreed pickup location when it was originally agreed that the Client would do so;
(g) any lost hire fees the Contractor would have otherwise been entitled to for the Equipment, under this, or any other hire contract;
(h) any insurance excess payable in relation to a claim made by either the Client or the Contractor in relation to any damage caused by, or to, the hire Equipment whilst the same is hired by the Client and irrespective of whether charged by the Client’s insurers or the Contractor’s.
16.1 “Wet Hire” shall mean that the Equipment is hired with an operator who shall at all times remain an employee of the Contractor.
16.2 In the event of Wet Hire, the operator of the Equipment remains an employee of the Contractor and operates the Equipment in accordance with the Client’s instructions. As such the Contractor shall not be liable for any actions of the operator in following the Client’s instructions.
17.1 Without prejudice to any other remedies the Contractor may have, if at any time the Client is in breach of any obligation (including those relating to payment) under these terms and conditions the Contractor may suspend or terminate the supply of Equipment on hire to the Client. The Contractor will not be liable to the Client for any loss or damage the Client suffers because the Contractor has exercised its rights under this clause.
17.2 The Contractor may cancel these terms and conditions or cancel delivery of Equipment at any time before the Equipment is delivered by giving written notice to the Client. On giving such notice the Contractor shall repay to the Client any sums paid in respect of the Price. The Contractor shall not be liable for any loss or damage whatsoever arising from such cancellation.
17.3 In the event that the Client cancels delivery of the Equipment the Client shall be liable for any and all loss incurred (whether direct or indirect) by the Contractor as a direct result of the cancellation (including, but not limited to, any loss of profits).
18.1 Interest on overdue invoices shall accrue daily from the date when payment becomes due, until the date of payment, at a rate of two and one half percent (2.5%) per calendar month (and at the Contractor’s sole discretion such interest shall compound monthly at such a rate) after as well as before any judgment.
18.2 If the Client owes the Contractor any money the Client shall indemnify the Contractor from and against all costs and disbursements incurred by the Contractor in recovering the debt (including but not limited to internal administration fees, legal costs on a solicitor and own client basis, the Contractor’s contract default fee, and bank dishonour fees).
18.3 Further to any other rights or remedies the Contractor may have under this contract, if the Client has made payment to the Contractor, and the transaction is subsequently reversed, the Client shall be liable for the amount of the reversed transaction, in addition to any further costs incurred by the Contractor under this clause 18 where it can be proven that such reversal is found to be illegal, fraudulent or in contravention to the Client’s obligations under this contract.
18.4 Without prejudice to any other remedies the Contractor may have, if at any time the Client is in breach of any obligation (including those relating to payment) under these terms of hire the Contractor may repossess the Equipment as per clause 11.2, or suspend or terminate the supply of Equipment to the Client and any of its other obligations under the terms and conditions. The Contractor will not be liable to the Client for any loss or damage the Client suffers because the Contractor has exercised its rights under this clause.
18.5 Without prejudice to the Contractor’s other remedies at law the Contractor shall be entitled to cancel all or any part of any order of the Client which remains unperformed and all amounts owing to the Contractor shall, whether or not due for payment, become immediately payable in the event that:
(a) any money payable to the Contractor becomes overdue, or in the Contractor’s opinion the Client will be unable to meet its payments as they fall due; or
(b) the Client has exceeded any applicable credit limit provided by the Contractor;
(c) the Client becomes insolvent, convenes a meeting with its creditors or proposes or enters into an arrangement with creditors, or makes an assignment for the benefit of its creditors; or
(d) a receiver, manager, liquidator (provisional or otherwise) or similar person is appointed in respect of the Client or any asset of the Client.
19.1 The Client agrees for the Contractor to obtain from a credit reporting body (CRB) a credit report containing personal credit information (e.g. name, address, D.O.B, occupation, previous credit applications, credit history) about the Client in relation to credit provided by the Contractor.
19.2 The Client agrees that the Contractor may exchange information about the Client with those credit providers and with related body corporates for the following purposes:
(a) to assess an application by the Client; and/or
(b) to notify other credit providers of a default by the Client; and/or
(c) to exchange information with other credit providers as to the status of this credit account, where the Client is in default with other credit providers; and/or
(d) to assess the creditworthiness of the Client including the Client’s repayment history in the preceding two (2) years.
19.3 The Client consents to the Contractor being given a consumer credit report to collect overdue payment on commercial credit.
19.4 The Client agrees that personal credit information provided may be used and retained by the Contractor for the following purposes (and for other agreed purposes or required by):
(a) the provision of Equipment; and/or
(b) analysing, verifying and/or checking the Client’s credit, payment and/or status in relation to the provision of Equipment; and/or
(c) processing of any payment instructions, direct debit facilities and/or credit facilities requested by the Client; and/or
(d) enabling the collection of amounts outstanding in relation to the Equipment.
19.5 the Contractor may give information about the Client to a CRB for the following purposes:
(a) to obtain a consumer credit report;
(b) allow the CRB to create or maintain a credit information file about the Client including credit history.
19.6 The information given to the CRB may include:
(a) personal information as outlined in 19.1 above;
(b) name of the credit provider and that the Contractor is a current credit provider to the Client;
(c) whether the credit provider is a licensee;
(d) type of consumer credit;
(e) details concerning the Client’s application for credit or commercial credit (e.g. date of commencement/termination of the credit account and the amount requested);
(f) advice of consumer credit defaults, overdue accounts, loan repayments or outstanding monies which are overdue by more than sixty (60) days and for which written notice for request of payment has been made and debt recovery action commenced or alternatively that the Client no longer has any overdue accounts and the Contractor has been paid or otherwise discharged and all details surrounding that discharge (e.g. dates of payments);
(g) information that, in the opinion of the Contractor, the Client has committed a serious credit infringement;
(h) advice that the amount of the Client’s overdue payment is equal to or more than one hundred and fifty dollars ($150).
19.7 The Client shall have the right to request (by e-mail) from the Contractor:
(a) a copy of the information about the Client retained by the Contractor and the right to request that the Contractor correct any incorrect information; and
(b) that the Contractor does not disclose any personal information about the Client for the purpose of direct marketing.
19.8 The Contractor will destroy personal information upon the Client’s request (by e-mail) or if it is no longer required unless it is required in order to fulfil the obligations of this contract or is required to be maintained and/or stored in accordance with the law.
19.9 The Client can make a privacy complaint by contacting the Contractor via e-mail. The Contractor will respond to that complaint within seven (7) days of receipt and will take all reasonable steps to make a decision as to the complaint within thirty (30) days of receipt of the complaint. In the event that the Client is not satisfied with the resolution provided, the Client can make a complaint to the Information Commissioner at www.oaic.gov.au.
20.1 Any written notice given under this contract shall be deemed to have been given and received:
(a) by handing the notice to the other party, in person;
(b) by leaving it at the address of the other party as stated in this contract;
(c) by sending it by registered post to the address of the other party as stated in this contract;
(d) if sent by facsimile transmission to the fax number of the other party as stated in this contract (if any), on receipt of confirmation of the transmission;
(e) if sent by email to the other party’s last known email address.
20.2 Any notice that is posted shall be deemed to have been served, unless the contrary is shown, at the time when by the ordinary course of post, the notice would have been delivered.
21.1 If the Client at any time upon or subsequent to entering in to the contract is acting in the capacity of trustee of any Trust (“Trust”) then whether or not the Contractor may have notice of the Trust, the Client covenants with the Contractor as follows:
(a) the contract extends to all rights of indemnity which the Client now or subsequently may have against the Trust and the trust fund;
(b) the Client has full and complete power and authority under the Trust to enter into the contract and the provisions of the Trust do not purport to exclude or take away the right of indemnity of the Client against the Trust or the trust fund. The Client will not release the right of indemnity or commit any breach of trust or be a party to any other action which might prejudice that right of indemnity;
(c) the Client will not without consent in writing of the Contractor (the Contractor will not unreasonably withhold consent), cause, permit, or suffer to happen any of the following events;
(i) the removal, replacement or retirement of the Client as trustee of the Trust;
(ii) any alteration to or variation of the terms of the Trust;
(iii)any advancement or distribution of capital of the Trust; or
(iv)any resettlement of the trust property.
22.1 The failure by either party to enforce any provision of these terms and conditions shall not be treated as a waiver of that provision, nor shall it affect that party’s right to subsequently enforce that provision. If any provision of these terms and conditions shall be invalid, void, illegal or unenforceable the validity, existence, legality and enforceability of the remaining provisions shall not be affected, prejudiced or impaired.
22.2 These terms and conditions and any contract to which they apply shall be governed by the laws of New South Wales, the state in which the Contractor has its principal place of business, and are subject to the jurisdiction of the Sydney Courts in New South Wales.
22.3 Subject to clause 14, the Contractor shall be under no liability whatsoever to the Client for any indirect and/or consequential loss and/or expense (including loss of profit) suffered by the Client arising out of a breach by the Contractor of these terms and conditions (alternatively the Contractor’s liability shall be limited to damages which under no circumstances shall exceed the Price).
22.4 The Contractor may licence and/or assign all or any part of its rights and/or obligations under this contract without the Client’s consent.
22.5 The Client cannot assign or licence without the written approval of the Contractor.
22.6 The Contractor may elect to subcontract out any part of the provision services but shall not be relieved from any liability or obligation under this contract by so doing. Furthermore, the Client agrees and understands that they have no authority to give any instruction to any of the Contractor’s sub-contractors without the authority of the Contractor.
22.7 The Client agrees that the Contractor may amend these terms and conditions by notifying the Client in writing. These changes shall be deemed to take effect from the date on which the Client accepts such changes, or otherwise at such time as the Client makes a further request for the Contractor to provide Equipment on hire to the Client.
22.8 Neither party shall be liable for any default due to any act of God, war, terrorism, strike, lock-out, industrial action, fire, flood, storm or other event beyond the reasonable control of either party.
22.9 Both parties warrant that they have the power to enter into this contract and have obtained all necessary authorisations to allow them to do so, they are not insolvent and that this contract creates binding and valid legal obligations on them.
