TERMS AND CONDITIONS
These terms and conditions form part of your agreement.
1. Terms of lease
1.1 Commencement
We offer to lease you the goods specified in the lease schedule (the goods) on these terms and conditions and the lease schedule incorporating these terms and conditions. By signing the lease schedule, you accept these terms and conditions. You are not entitled to withdraw your acceptance of the offer unless we agree to it. This lease becomes binding on us only when signed by us (or such other date as specified by us), irrespective of any payment of money or delivery of the goods.
1.2 Rent
(a) We lease the goods to you for the rent and term specified in the lease schedule. You must pay the lease money free of all deductions and without set-off irrespective of any loss, damage, destruction, forfeiture, defect, unsuitability, failure to operate, or anything else relating to the goods.
(b) Payments are to be made by direct debit. Until the lease money is paid in full, you must sign and maintain a direct debit authority to allow us to debit an account from which payments will be made. You must keep that account open and ensure that it has sufficient funds available to meet your payment obligations. You authorise us to obtain any payment due under this lease using the direct debit authority.
1.3 Interest
You must pay to us interest on any money payable under this lease not paid on the due date (without affecting the obligation to pay) at the default rate calculated from the earlier of the date the money is due, or the cost or expense is incurred by us and compounded monthly in arrears on the same day of each month as the commencement date of this lease.
1.4 Payment Dates
If any payment is due:
(a) on a day which is not a business day; or
(b) on a day which is the 29th, 30th or 31st of a month with no such date, the payment must be made on or before the next business day. However, if that means that the payment is due in the next calendar month, your payment is due on the last business day of the current calendar month.
1.5 Acquisition of Goods
We have appointed you our agent for the purposes of the acquisition, certification of title, and delivery of the goods. You warrant to us that the goods are suitable for your intended use. Upon purchase of the goods, we will acquire free and unencumbered title to the goods. You indemnify us against any claims by any person (including by you) of any nature in relation to the condition, merchantability, suitability, title, operation, installation, assembly or delivery of the goods. You acknowledge, and it is fundamental to this lease that we have agreed, to purchase the goods for the sole purpose of leasing the goods to you, and you indemnify us from any loss however arising from this lease (other than as a result of our own error, mistake, fraud, negligence, wilful misconduct or omission).
1.6 Delivery of goods
Before delivery of the goods, you must pay the deposit amount, if any, specified in the lease schedule. By signing the lease schedule, you acknowledge delivery of the goods. You must pay all costs of delivery and arranging delivery of the goods. The failure to obtain delivery of the goods for any reason does not affect your obligation to pay the lease money.
1.7 Expiry of lease, holding over and offer to purchase
(a) On the expiry date, you must deliver the goods to a location nominated by us during ordinary business hours and pay to us the balance, if any, of the money payable under this lease. Following the expiry date or other termination of this lease, we may without any prior demand and on providing reasonable notice take possession of the goods and for that purpose may, after providing any notice required by the law, enter any premises where the goods are located.
(b) If this lease continues beyond the expiry date, and you have not returned the goods to us you must continue to pay the rent at the rate and at the frequency specified in the lease schedule without prejudice to our rights arising from the failure to return the goods on the expiry date. We may agree to an extension of the term of this lease at your request.
(c) At any time before or after the expiry date, you may offer to purchase the goods from us. We may accept or reject your offer at our sole discretion.
(d) If you choose not to offer to purchase the goods, or if we do not accept an offer by you to purchase the goods, the terms of clauses (a) and (b) of this clause apply.
1.8 Early termination of lease by you
(a) You may terminate this lease at any time before the expiry date by providing us with notice in writing and returning the
goods to a location nominated by us during ordinary business hours. If you terminate this lease before the expiry date,
you must immediately pay to us the balance due. If you return the goods to us and pay the balance due, we will give you credit for the value.
(b) We may also terminate this lease if there is a default - see clause 3.2.
2. Your promises
2.1 Insurance
(a) You must insure and keep insured the goods for their full insurable value under a comprehensive policy in a form and substance satisfactory to us. The policy must cover any risks stipulated by us in the names of the lessor and you, with an insurer approved by us. You must promptly send to us a copy of each certificate of renewal of insurance upon our request. You must provide evidence of the insurance upon our request.
(b) We can apply any money received from any insurance claim over the goods or received from an insurer following cancellation of a policy toward payment of the balance due.
2.2 Loss and destruction
(a) If the goods are lost, destroyed or damaged, any proceeds from insurance must be paid to us unless we agree to the proceeds being used to repair or replace the goods. Any goods repaired or substituted will be goods subject to this lease. You must notify us and every insurer promptly of any damage to or destruction of the goods and must take all steps necessary to preserve all rights under any insurance, including the timely making of claims.
(b) If there is a total loss, we may by notice terminate this lease, in which case you must pay to us:
(i) the balance due; less
(ii) any amount we receive as a payout from any insurer in respect of the total loss.
(c) If we receive any amount from an insurer after you have paid the balance due after total loss, we will refund that amount to you.
2.3 Repair and use
You must:
(a) register and keep registered any goods which are normally registered with a registry;
(b) take proper care of the goods and keep them in good repair, condition and working order and furnish all replacement parts (which upon fitting become part of the goods);
(c) on termination or expiry of this lease, deliver up the goods to us in good repair, condition and proper working order, with only reasonable wear and tear excepted;
(d) comply with any notice from us requiring repair;
(e) use the goods in accordance with the instructions and recommendations of the manufacturer and only permit the goods to be operated by properly licensed or qualified personnel;
(f) not use the goods for any purpose not disclosed to us;
(g) not alter or add to the goods without our prior written consent;
(h) use the goods at your own risk (we are not liable for any damage or loss you suffer arising from the use of the goods);
(i) only permit the goods to be used or operated in the manner and for the purposes for which the goods were designed and manufactured and in accordance with any laws; and
(j) not use or operate or permit the goods to be used or operated when they are out of proper repair.
You acknowledge that we have no obligations with respect to the repair, maintenance or other responsibility in relation to the custody and repair of the goods.
2.4 Dealing with leased goods
(a) You must promptly notify us of any change of address of you or of the premises where the goods are situated stored or garaged. You must not take the goods outside Australia. If a location is specified in the lease schedule, the goods must not be removed from that location other than for its intended use without our prior written consent, which will not be unreasonably withheld;
(b) You must not mortgage, charge, sell, lease, part with possession, permit a lien to arise, or otherwise deal with the goods or this lease or attempt or purport to do so.
2.5 Costs and expenses
On demand by us, you must pay all reasonable costs (including legal costs as between solicitor and client), expenses and other amounts reasonably incurred or paid by us in respect of this lease or any security arising as a result of any default by you or the exercise or purported or attempted exercise of any of our rights or powers, including our reasonable internal administration costs. You must also pay any stamp duty, registration fees, or other duty or taxes arising directly or indirectly in respect of this lease, any security or any variation of this lease.
2.6 Other chattels
If any other chattels are affixed to the goods, then those chattels form part of the goods and are subject to this lease.
2.7 Indemnity
You indemnify us and our officers, agents, and employees from and against all actions, claims, demands, losses, interest, fees, damages, reasonable costs and expenses of any nature which we or our officers, agents or employees sustain or incur, or for which we become liable at any time (but excluding any liability, cost, loss or expense to the extent due to our error, mistake, omission, fraud, wilful misconduct or negligence), arising from:
(a) any failure by you to perform any of the provisions of this lease;
(b) any loss or damage occasioned by or liability incurred by us or you in the exercise, non-exercise or purported exercise of any of our powers, rights and privileges contained in or implied by this lease;
(c) any rates, taxes, charges, outgoings and assessments that are payable or become due in respect of the goods and any liability to any competent authority in respect of any breach of duty or law relating to the goods;
(d) the loss, damage or destruction of the goods by any cause, including lawful confiscation;
(e) your failure to notify us of any defect in the goods;
(f) any injury to persons or property arising directly or indirectly from the goods including their use and operation;
(g) our ownership of the goods; and
(h) use of the goods in breach of any law.
Any amount due under this clause will form part of the lease money.
2.8 Approvals by relevant authorities
You must obtain all approvals necessary for the use and operation of the goods and must comply with all laws, rules and regulations of any competent authority in relation to the use and operation of the goods.
2.9 Inform us of location of goods
You must inform us where the goods are located, and in whose possession, within seven days of written request by us.
2.10 Our right to inspect goods
You will permit us or our agents to inspect and test the goods from time to time and to enter premises where the goods are located for that purpose. We will provide you with reasonable notice of the inspection.
2.11 Our right to affix name to goods
If we request, you must affix to the goods any plates or marks indicating that the goods are our property. You must allow the plates or marks to remain affixed and must not obliterate, deface or cover them up.
2.12 Warranties
You warrant to us that to the best of your knowledge and belief:
(a) all information given by you to us is true and correct;
(b) every statement and representation in relation to the goods is accurate; and
(c) all negotiations in relation to the supply of the goods were conducted between you and the supplier and were conducted in good faith and in the ordinary course of business.
2.13 Goods not to be deemed fixtures
(a) You must not attach, affix or secure the goods to any land or premises without our prior written consent.
(b) If the goods are affixed, attached or secured to land or premises owned by you (with or without our consent), the goods are deemed not to be fixtures and may be removed by us upon providing reasonable notice in accordance with the provisions of this lease, and we may enter on the land or premises for that purpose and will not be liable in respect of loss or damage arising from entry or removal (but excluding any liability, cost, loss or expense to the extent due to our error, mistake, omission, fraud, wilful misconduct or negligence).
(c) If the goods are affixed, attached or secured to land or premises not owned by you (with or without our consent), before affixing, attaching or securing the goods, we may request, acting reasonably, that you obtain and provide to us the written consent of the owner and any mortgagee or charge of the land or premises to the entry and removal of the goods at any time by us.
3. Default
3.1 Events of default
Events of default comprise monetary events of default and non-monetary events of default. A monetary event of default is an event of default that occurs as a result of your failure to make a payment. Each of the following is a monetary event of default:
(a) you do not pay any money due to us under this lease contract by the due date for payment; Each of the following is a non-monetary event of default:
(b) you default in the performance of any non-monetary payment provision of this lease, and if the default is capable of remedy, you do not rectify that default within 30 days of our notice requiring you to do so;
(c) you or a guarantor become bankrupt;
(d) you or a guarantor no longer have legal capacity;
(e) it becomes unlawful for you or us to continue with this lease contract;
(f) you breach clause 2.4 of this lease;
(g) you give us information, or make a representation or warranty to us, that is materially incorrect or misleading (including by omission), and is such that we would not have provided the lease, or would only have provided the lease on different terms, if we had known the correct information;
(h) you use the leased goods for an illegal or improper purpose, or to finance an illegal or improper activity;
(i) you do not maintain insurance required by any agreement with us;
(j) you or any person on behalf of you breaches any material undertaking at any time given to us;
(k) you are an individual and you become bankrupt or are jailed;
(l) all or any part of the goods are lost, destroyed, damaged, taken out of your control, of reduced value or utility, or we believe acting reasonably that your ability to maintain possession of the goods has been impaired; or
(m) an insurer under a policy required to be taken out to insure the goods cancels the insurance or disclaims liability for any reason.
3.2 Rights on default
(a) At any time after an event of default occurs, we can take any of the actions listed below. Acting reasonably, we will allow you an opportunity to remedy an event of default if such event of default is capable of being remedied. We do not lose any rights or forgive any event of default unless we do so in writing. We can take action even if we do not do so promptly after an event of default occurs. We can exercise these rights with or without taking possession of the goods. If we hold security, we can enforce any one of these securities first or all of them at the same time.
(i) Terminate this lease.
(ii) Exercise any right, power or privilege conferred by law, equity, this lease, or any other collateral document.
(iii) Perform any of your obligations under this lease.
(iv) Enter any premises and take possession of the goods (with or without terminating this lease).
(v) Terminate this lease in respect of some of the goods only and re-determine the rent and the term for the remaining goods. You must execute any documents required by us to reflect the variation of the terms of this lease but any change is effective even if you do not execute those documents.
(b) You must pay all reasonable costs of and incidental to repossession, storage and return of the goods. If this lease has not been terminated, the obligation to pay rent continues while the goods are in our possession.
(c) On termination of this lease by us under this clause, you must pay to us the balance due.
(d) If we recover the goods and all money due to us has been paid, we will give you credit for the value.
4. General
4.1 Variation
(a) Acting reasonably and after providing any notice required by the law, we may do any of the following at any time:
(i) introduce new fees and charges or vary existing fees and charges; or
(ii) vary the rental if there has been a change in the taxation of this lease; or
(iii) vary the frequency, number or method of calculation of, or time for payment of, any payment due under this lease.
(b) Acting reasonably, we may vary any term of this lease by giving you any notice as required by law.
4.2 Claims
If we receive a claim in relation to the use of the goods (including, for example, fines, infringement notices or claims for damage), we may provide the relevant person or authority with your personal information so that the person or authority can seek redress directly from you. By signing the lease schedule, you consent to us disclosing your personal information for this purpose.
4.3 Title to the goods
The goods are owned by us and nothing in this lease confers on you any right, property or interest in or to the goods other than as lessee.
4.4 Notices
(a) We may give you a notice by personal delivery, prepaid ordinary post or electronically sent to your address shown in the lease schedule, or sent to your last address known to us. We may also give a notice in any other way authorised by law.
(b) The notice may be signed by any employee, solicitor or agent on our behalf.
4.5 Warranties
To the fullest extent permitted by law, all statutory and other implied terms, conditions and warranties relating to the goods are excluded and negatived. To the extent that an implied term, condition or warranty cannot be excluded and, subject to the qualifications in section 64A of Schedule 2 (Australian Consumer Law) of the Competition and Consumer Act 2010 (Cth) or any other statute, our liability for any breach of any terms, conditions or warranties so implied is limited to one of the following as determined by us:
(a) the replacement of the goods or the supply of equivalent goods or payment of the cost of replacement; or
(b) the repair of the goods or the payment of the cost of repair.
4.6 Warranties
No failure or delay or course of dealing in relation to any right power or privilege under this lease operates as a waiver.
4.7 Statutes
If the law requires us to give you notice before exercising rights, we may not have to give notice if:
(a) we believe on reasonable grounds that you have disposed of the goods (or intend to) contrary to the terms of this lease;
or
(b) we cannot locate you after making reasonable attempts to do so; or
(c) you are insolvent; or
(d) we are authorised by a court.
If any of the provisions of this lease are illegal or become illegal at any time, the affected provisions will cease to have effect, but the balance of this lease will remain in full force and effect.
4.8 Brokers
You may be introduced to us by a broker, agent, dealer or other person. You consent to the payment by us of any commission or fee to that person. You acknowledge that any introducing broker, agent or dealer is not our agent for any purpose and that no representation or course of conduct or dealing by any introducing broker, agent or dealer binds us. Any amount paid to such a person may be included in the amount financed by this lease.
4.9 Assignment
(a) We may assign, novate or otherwise deal with our rights or obligations (or both) to the goods under this lease and any collateral security (or any one or part of them). You must execute any documents which in our opinion are reasonably necessary for those purposes. You hereby irrevocably authorise us to sign any of that documentation on your behalf,including a substitution agreement to novate this lease to a new lessor.
(b) You must not assign, transfer or deal with your rights or obligations under this lease or any security without our prior
written consent.
4.10 Disclosure
We may disclose to a potential assignee, novate, participant or any other person information about this lease, you and the goods. By signing the lease schedule, you consent to us disclosing your personal information for this purpose.
4.11 Consent and approval
If our consent or approval is required, we will not unreasonably withhold or delay our consent or approval. We may impose conditions in providing our consent or approval which are reasonably necessary to protect our legitimate business interests.
4.12 Severability
If any term, agreement or condition of this lease or the application of any term, agreement or condition of this lease to any person or circumstance is or becomes illegal, invalid or unenforceable in any jurisdiction, it will be severed, and neither the remaining terms, agreements and conditions nor the application, validity and enforceability of the severed term, agreement or condition in any other jurisdiction will be affected.
4.13 Authority to complete and date
You irrevocably authorise us to date and complete any blank spaces and otherwise to complete this lease.
4.14 Governing law
This lease is governed by and construed in accordance with the law for the time being in force in the place where this lease is entered in to. You agree to submit to the non exclusive jurisdiction of the courts of that place.
4.15 Taxes
We may vary the rental if there is any change to the taxation rate or depreciation rate applicable to the transaction contemplated by this lease or anything else which changes our return on funds employed under this lease. Instead of a variation, we may require you to pay to us on demand the amount of any additional cost.
4.16 Debit and set-off
You irrevocably authorise us at our discretion and without notice to you to:
(a) debit or charge any of the lease money to any account conducted by with us; and
(b) set off any of the lease money against any money payable by us to you.
We need not allow any set-off between the lease money and any credit balance of yours. Any surplus money paid to us will not carry interest.
4.17 Interest on judgment
If a liability under this lease becomes merged in a judgment or order, then you as an independent obligation must pay interest calculated at the default rate to us on the amount of that liability from the date it becomes payable until it is paid both before and after the judgment or order despite the bankruptcy or insolvency of you.
4.18 GST
(a) If GST is payable by a supplier (or by the representative member for a GST group of which the supplier is a member) on any supply made under or in relation to this lease, the recipient must pay to the supplier an amount (GST amount) equal to the GST payable on the supply. The GST amount is payable by the recipient in addition to and at the same time as the net consideration for the supply.
(b) If a party is required to make any payment or reimbursement, that payment or reimbursement must be reduced by the amount of any input tax credits or reduced input tax credits to which the other party (or the representative member for a GST group of which it is a member) is entitled for any acquisition relating to that payment or reimbursement.
(c) This clause is subject to any other specific agreement regarding the payment of GST on supplies.
5. PPSA provisions
5.1 Application of this clause
(a) You acknowledge that we have a security interest under the PPSA in respect of the goods, any insurance policy over the goods (including any insurance taken out by you) or insurance proceeds received with respect to the goods, and you authorise us to register one or more security interests under the PPSA in respect of this lease.
5.2 Powers
(a) The rights and powers conferred on us by this lease or the law are in addition to any rights and powers conferred by the PPSA.
(b) For the avoidance of doubt, in addition to the powers under section 125 of the PPSA, we may take any action after default authorised by this lease or the law, including delaying any disposal, leasing or action to retain any of the goods.
6. Interpretation
6.1 Definitions
Some terms are defined in the lease schedule. In this lease, unless the contrary intention appears: balance due means
(a) the rental up to and including the next rental payment date; plus
(b) if the calculation is made for a time before the expiry date the rental from the next rental payment date to expiry date discounted to the next rental payment date at the discount rate; plus
(c) if the goods are not returned to us the value; plus
(d) our enforcement expenses and costs incurred by us in the repossession, seizure, storage and valuation of the goods, cost and expenses in connection with the sale or attempted sale of the goods, and costs and expenses in connection with our enforcement or attempted enforcement of this lease; plus
(e) any other lease money due but unpaid; plus
(f) interest calculated at the default rate on the above amounts on daily balances from the date of termination to the date of payment. business day is a day that is not a Saturday or Sunday, or a Queensland or Commonwealth public holiday on which banks are generally not open to conduct business in Queensland.
discount rate means the rate implicit in this lease as reasonably determined by us;
expiry date means the date specified in the lease schedule;
guarantor means anyone who at any time guarantees to us the payment of all or any part of the amount you owe us, and includes any guarantor specified in this loan contract;
GST means any tax, levy, charge or impost implemented under the A New Tax System (Goods and Services Tax) Act 1999 (Cth) (GST Act) or an Act of the Parliament of the Commonwealth of Australia substantially in the form of, or which has a similar effect to, the GST Act;
lease money means the rent payments shown in the lease schedule and any other money due under this lease; next rental payment date means the date on which the next rental payment is due after the termination date;
PPSA means the Personal Property Securities Act 2009 (Cth);
total loss means if we determine (acting reasonably) that the goods have been stolen and not recovered or have been damaged beyond economical repair;
value means:
(g) the proceeds of the sale or other disposal of the goods received by us or at our election the value of the goods as reasonably determined by us (which may be nil); less
(h) all expenditure (including any GST , legal and other costs and expenses) incurred by us in the repossession, seizure, storage and valuation of the goods, cost and expenses in connection with the sale or attempted sale of the goods, and costs and expenses in connection with our enforcement or attempted enforcement of this lease, including all internal costs.
6.2 Interpretation
In this lease, unless the context otherwise requires:
(a) clause and subclause headings are for reference purposes only;
(b) the singular includes the plural and vice versa;
(c) words denoting any gender include all genders;
(d) reference to a person includes any other entity recognised by law and vice versa;
(e) where a word or phrase is defined its other grammatical forms have a corresponding meaning; and
(f) an agreement, representation or warranty on the part of two or more persons binds them jointly and severally.