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Terms and Conditions of Rental

Crown Equipment Pty Ltd

AGREEMENT

In these terms and conditions a reference to the “rental agreement” is taken to be a reference to the agreement between Crown and the Customer set out in the proposal and accepted by the Customer, any invoice issued by Crown pursuant to that proposal, these terms and conditions of rental and any other document notified by Crown to the Customer as forming part of the rental agreement.

 

CUSTOMER OBLIGATIONS

The Customer agrees:

1. to pay the rental and such other amounts as are owing by the Customer to Crown at rates as invoiced by Crown within seven (7) days of the date of the invoice, or on other payment terms agreed in writing with Crown;

2. to pay for the cost of repairs due to damage which includes, but is not limited to, all accidental tyre and component damage that is not fair wear and tear and which affects the equipment’s operational, aesthetic or safety capability. Crown’s determination of fair wear and tear is based on the publication issued by the Australian Industrial Truck Association (AITA), The AITA Forklift Fair Wear and Tear Guide, a copy of which is available online at aita.net.au or can be provided to the Customer upon request, or such other guide as determined by Crown from time to time and notified to the Customer;

3. to pay for all other proper charges whether incurred by Crown or the Customer, including transportation costs, registration costs (if registration is required by the Customer) and government imposed duties, taxes and imposts including PPSA charges:

4. that if the Customer’s use of an item of equipment exceeds the annual maximum operating hours for that item of equipment for any nominated period (as set out in the proposal or in the absence of any such specification then a period of twelve (12) months) then the Customer agrees to pay the overtime usage charge at the rate set out in the proposal or as notified by Crown to the Customer from time to time;

5. that all amounts payable for a supply under this rental agreement are quoted exclusive of GST (unless otherwise stated). If any amount payable under this rental agreement is the consideration for a taxable supply in respect of which the supplier is liable to pay GST, the amount payable will be increased by the amount of the GST payable in respect of the taxable supply, and the additional amount will be payable at the same time as the consideration is payable;

6. to ensure that all persons operating the equipment are suitably instructed in its safe and proper use and that the equipment is used only by properly qualified, competent, and where necessary, trained and/or licensed persons, and to comply with any operational manuals and instructions provided by Crown with respect to the equipment and generally with all relevant laws and legal obligations concerning the use of the equipment;

7. to operate the equipment safely, strictly in accordance with the law, only for its intended use, and in accordance with any manufacturer’s instructions whether supplied by Crown or posted on the equipment;

8. to satisfy itself that the equipment is suitable for its purposes;

9. to conduct a thorough hazard and risk assessment before using the equipment and comply with all Occupational Health and Safety laws relating to the equipment and its operation;

10. to promptly notify Crown of any loss or damage to the equipment or to any person or other property;

11. to continue to pay rental until:

(a) in the case where there is no agreed rental period – when Crown is notified by the Customer that the rental has ended and the Customer has obtained a rental expiry number from Crown and the equipment is returned to Crown; or
(b) in the case where there is an agreed rental period:

(i) the expiry of the agreed rental period, or when the equipment is returned to Crown (whichever occurs later); or
(ii) subject to clauses 18 and 19 of these terms and conditions, at the time the equipment is returned to Crown before the expiry of the rental, provided however that Crown has first agreed in writing to the return of the equipment before the expiry of the agreed rental period;

12. that each and every obligation imposed upon the Customer under this rental agreement is an essential term and the Customer acknowledges and agrees that if the Customer is in breach of this rental agreement Crown has the right to terminate the rental agreement and recover the equipment, any arrears of rent and any other loss and or damages suffered by Crown as a result of the Customer’s breach;

13. that the equipment remains at all times the property of Crown and that the Customer is entitled to possession of the equipment during the rental period as bailee only;

14. to insure the equipment against fire, accident, theft, and such risks as Crown may determine, including third party liability, under a comprehensive insurance policy, for the full insurable value of the equipment during the rental period and (if Crown shall require) to deliver to Crown the certificate of currency or other evidence of the insurance policy as Crown may reasonably require;

15. to indemnify Crown in respect of:

(a) any breach of these terms and conditions by the Customer; and
(b) all loss of and/or damage to the equipment arising from loss or theft of the equipment whilst on rental; and

16. to indemnify and keep indemnified Crown from and against all claims, demands, losses or expenses of any nature whatsoever for the injury or death to any person or damage to any property howsoever incurred as a result of the use of the equipment by any person, during rental or transit, except and only to the extent that such losses, damage or injuries were caused by any wilful or negligent act or omission of Crown or its agents.

17.  (a) The Customer agrees that all risks and liabilities imposed on the Customer under this rental agreement commence at the start of and continue until the end of the interim period.

(b) The “interim period” will commence on the earlier of the date on which the equipment is delivered to the Customer or the rental period begins, and will continue until the later of the date of the expiry of the rental period or the date on which Crown

(i) collects, or
(ii) accepts the return of, the equipment.

UPGRADES AND EARLY TERMINATION

Crown:

18. will permit the Customer to upgrade or downgrade the equipment prior to the expiry of the agreed rental period on the terms agreed by the parties and notified to the Customer by Crown in writing. In this event, the Customer is liable for all transportation costs arising from the exercising of this flexibility option and the agreed rental period and all terms and conditions of the existing rental agreement will apply; and

19. where the Customer returns the equipment prior to the expiry of the rental period without consent, Crown may impose an early termination fee equal to 65% of the rent that Crown would have received during the remainder of the rental period and the Customer acknowledges and agrees that this amount is a fair and accurate representation of the loss and or damages that will be suffered by Crown as a result of the early termination of the rental agreement.

FIRE & THEFT WAIVER

Where the Customer has agreed to the fire and theft waiver, the Customer may limit its liability to Crown and Crown will agree subject to clauses 21, 22 and 23, to waive its right to claim against the Customer for any loss of or damage to the equipment which is caused by fire or theft (the “Waiver”).

21. The Waiver will only apply where:

(a) the Customer has paid the Fire and Theft Waiver Fee (the “Waiver Fee”) within the time period required by Crown;
(b) the Customer is not in default under this rental agreement and or any other agreement with Crown and has paid all monies required to be paid by it to Crown;
(c) that in each instance where the Customer seeks to limit its liability in accordance with the terms of the Waiver, the Customer pays a sum of $2,000 for each item of equipment which is the subject of the Waiver;
(d) where the loss or damage arises from theft of the equipment, the Customer has first reported the theft to Crown and the police within 24 hours of the loss and or damage and provided evidence of such police report to Crown within three (3) days;
(e) that the Customer has provided such further evidence and or assistance (including completing and signing any documentation, application or claim form required by Crown) as Crown may reasonably require to determine the veracity of the Customer’s claims and to mitigate any loss or damage suffered by Crown.

22. The Waiver does not apply in the following circumstances:

(a) loss or damage resulting from or attributable to overloading, exceeding rated capacity, misuse, abuse or negligence of the operator;
(b) loss or damage resulting from attributable to improper and/or unauthorised servicing of the equipment;
(c) loss or damage due to misappropriation or wrongful conversion by the Customer or its employees, agents or any person to whom the equipment is entrusted by the Customer;
(d) loss or damage attributable to or caused by use or operation of the equipment in contravention of any of the conditions of this agreement;
(e) loss or damage attributable to or caused by use or operation of the equipment in violation of any laws (Commonwealth or State) or relevant Standards or Codes of Practice or industry practice;
(f) loss or damage which could have been reasonably prevented by the Customer; or
(g) loss or damage attributable to flood, tempest, storm, hail, earthquake, explosion or water damage.

23. The Customer acknowledges and agrees that:

(a) the Waiver Fee is not an insurance premium;
(b) the Waiver is not an insurance contract; and
(c) the Waiver is not effective until Crown confirms in writing that the Customer has satisfied the requirements of the Waiver.

PERSONAL PROPERTY SECURITIES ACT (PPSA)

24. (a) The Customer acknowledges and agrees that:

(i) this rental agreement constitutes a Security Agreement for the purposes of the PPSA; and
(ii) for the purpose of securing the payment of all moneys and the performance of all other obligations owed to Crown it grants a Security Interest in:

(A) all equipment supplied under this rental agreement from Crown to the Customer;
(B) all equipment previously supplied by Crown to the Customer (if any);
(C) all equipment that will be supplied in the future by Crown to the Customer under any other agreement; and
(D) all proceeds (if any) received by the Customer in relation to the equipment, and Crown may register its Security Interest on the Register;

(iii) Crown may, at the Customer’s request, supply equipment to the Customer from time to time by way of rental, sale, consignment, hire purchase or on such other terms as the parties may agree. The Customer grants a Security Interest in favour of Crown in respect of all equipment supplied by Crown to the Customer to secure the payment of all moneys and performance of all other obligations owed to Crown.

(b) The Customer undertakes to:

(i) 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 Crown may reasonably require to:

(A) register a Financing Statement or Financing Change Statement in relation to a Security Interest on the Register;
(B) register any other document required to be registered by the PPSA; or
(C) correct a defect in a statement referred to in clause (b)(i)(A) or (b)(i)(B).

(c) The Customer must not serve an Amendment Demand on Crown under part 5.6 of the PPSA seeking to remove or amend a Financing Statement lodged by Crown under the terms of this rental agreement until such time that all obligations owing by the Customer to Crown, actual and contingent, have been satisfied.

(d) “PPSA” is the Personal Property Securities Act (2009) and ‘Amendment Demand’, ‘Register’, ‘Purchase Money Security Interest’, ‘PPS Lease’, ‘Security Agreement’, ‘Security interest’ and ‘Verification Statement’, ‘Financing Statement’ and ‘Financing Change Statement’; will have the meanings for those terms as defined in the PPSA.

(e) Crown is not required to give any notice under the PPSA (including the notice of a Verification Statement) to the Customer unless the notice required by PPSA cannot be excluded.

(f) The Customer agrees that it is liable for any costs incurred by Crown (on a full indemnity basis) in accordance with this clause 24, including and without limitation any costs incurred by Crown in registering a Financing Statement or a Financing Change Statement on the Register or perfecting its Security Interest in the equipment.

LIABILITY

25.

(a) To the fullest extent permitted by law, any liability of Crown to the Customer including but not limited to the liability for special, consequential or incidental damages or for breach of any term, condition, warranty, undertaking, inducement, guarantee or representation whether express, implied, statutory or otherwise relating to these terms and conditions or to the goods will be limited at Crown’s option, to any one or more of the following:

(i) the replacement of equipment or the supply of equivalent equipment;(ii) the repair of the equipment;
(iii) the payment of the cost of replacing the equipment or acquiring equivalent equipment; or
(iv) the payment of the cost of having the equipment repaired.

(b) To the fullest extent permitted by law and subject to clause 25(a), Crown will under no circumstances be liable to the Customer for any loss, damage or expense, sustained or incurred by the Customer or any other party, whether direct or indirect, special, consequential, incidental or punitive losses or damages whether in contract, tort (including withoutlimitation negligence), equity, under statute or on any other basis, and whether or not such loss or damage was foreseeable. The term “consequential damages” will include, but not be limited to, economic loss including actual or anticipated profits, business interruption, loss of use, revenue, reputation and/or data, costs incurred, and loss or damage to property or equipment.

(c) In addition to the limitation of liability set out in this clause 25 and clause 26 below, Crown will not be liable to the Customer for any direct, indirect or consequential losses (including loss of profits) due to failure of the equipment.

FORCE MAJEURE

26. Crown will not be liable to the Customer or deemed to be in breach of this rental agreement by reason of delay or performance, or failure to perform any of Crown’s obligations, if the delay or failure was due to any cause beyond Crown’s reasonable control including but not limited to:

(a) explosion, flood, tempest, earthquake, volcano, fire or accident;
(b) war or threat of war, sabotage, insurrection, civil disturbance or requisition;(c) acts, restrictions, regulations, laws, prohibitions, or measures of any kind of any local or federal governmental authority;
(d) defective performance of carriers;
(e) import or export regulations or embargoes;
(f) strikes, lock-outs or other industrial actions or trade disputes (whether involving employees of Crown or a third party);
(g) difficulties in obtaining raw materials, labour, fuel, or parts of machinery; or
(h) failure or breakdown in machinery.

GENERAL

27.

(a) This rental agreement will be constructed and governed in all respects by the laws of the state of New South Wales and each party submits to the non exclusive jurisdiction of the courts of New South Wales.
(b) Crown may, at any time, serve notices (including invoices) by electronic mail at the Customer’s nominated email address and that notice is treated as duly given on the date that is the later of:

(i) that date the electronic mail bears; or
(ii) the date that it is received at or capable of retrieval from the nominated email address, if a business day, otherwise on the next business day.

(c) The Customer must not assign its rights or obligations under this rental agreement without prior written consent of Crown.
(d) In the event that any provision of this rental agreement is held invalid or unenforceable, the remaining provisions of this agreement will remain in full force and effect.
(e) Crown reserves the right to, on each annual anniversary of this rental agreement, increase the total rental per unit for the following year by an amount equal to the higher of:

(i) 4%; and
(ii) the Consumer Price Index All Groups (Sydney).

(f) No failure or delay by Crown to exercise any right or remedy provided under this rental agreement or by law will constitute a waiver of that or any other right or remedy, nor will it preclude or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy will preclude or restrict the further exercise of that or any other right or remedy.
(g) This rental agreement constitutes the entire agreement between Crown and the Customer and supersedes any previous agreement relating to the equipment.