Swiftscaff Pty Ltd (ACN 112 016 127)

Terms and Conditions of Hire of Swiftscaff Scaffolding

1. Definitions

1:1 “Company” means Swiftscaff Pty Ltd.

1:2 “Goods” means the Goods and services being the subject of the Hire Contract.

1:3 “Hire contract” means any hire transaction between the Company and the Hirer detailed overleaf on the invoice or hire order.

1:4 “Hirer” means the person entering a hire contract with the Company.

2. Conditions precedent

2:1 These conditions apply to all hire of the Company's Goods despite any contrary terms in any of the Hirer's documents and these terms and conditions constitute the entire agreement between the parties to the exclusion of all other conditions. Signing the hire order overleaf and/or acceptance of delivery of the Goods indicates the Hirer's acceptance of these conditions unamended and, for the avoidance of doubt, no representations, inducements, promises or agreements between the parties will be of any effect in varying these terms and conditions unless in writing and signed by both parties.

2:2 The Hirer guarantees that the Goods will be used for the purpose of a business or trade.

3. Additional Costs

3:1 The Goods are hired on condition that the Hirer shall pay any additional costs or expenses not specifically provided for in this hire contract including without limitation, any tax, stamp duty, fee, levy or charge of any nature whatsoever imposed in respect of the hire.

3:2 The Hirer agrees to pay all additional costs, fees and charges arising from inaccuracies in hire orders, instructions or information given by the Hirer to the Company.

3:3 Unless otherwise agreed in writing, all handling and transport costs must be paid by the Hirer.

4. Payment

4:1 All invoices, additional costs and any other charges must be paid net thirty (30) days from date of invoice. Labour payments strictly 14 days from Invoice date.Overdue accounts shall bear interest thereafter until payment at the rate prescribed for judgment by the Penalty Interest Rate Act 1983.

4:2 Where delivery of Goods to any site is in incomplete loads, pro-rata progress payments are to be paid to the Company.

5. Installation & Erection

5:1 Unless otherwise agreed in writing, erection of any Goods shall be performed by a third party ("Erector/Installer of Goods"), for whom the Company acts as agent. The Hirer agrees that it will enter into any contract as may be reasonably be required for the erection of the Goods directly with the Erector/Installer of Goods.

5:2 The Company shall bear no responsibility whatsoever for:

(a) any and all breaches by the Erector/Installer of Goods of any agreement between it and the Hirer; and

(b) any act of negligence by the Erector/Installer of Goods.

5:3 The Hirer and the Company agree that the Erector/Installer of Goods shall be fully liable for any and all loss, damage or injury howsoever caused to any premises, to any person and to any third party and whether by the Erector/Installer of Goods or any of its servants, agents or representatives. For the avoidance of doubt, such loss, damage or injury includes any loss, damage or injury caused directly or indirectly by the negligence of the Erector/Installer of Goodsor any of its servants, agents or representatives.

5:4 Where engineer's computations are required, the costs of any such computations shall be borne by the customer.

5:5 It is the responsibility of the Hirer to ensure a sound foundation (roof base) free from tunneling underground pipe work, basements and the like and that the area is clear and free from debris for the erection of Goods. The Hirer is solely responsible and liable to compensate the Company for any damage to the Goods caused by:

(a) circumstances which would be likely to affect the Goods, which were not advised to the Company beforehand in writing;

(b) substances or undermining;

(d) circumstances where the ground is not consolidated to safely carry the structure.

5:6 Where deviations occur between drawings or data supplied by the Hirer and actual on-site requirements, the Hirer shall be liable for any additional costs incurred.

6. Promotion Materials/Drawings

6:1 Drawings and sketches alike do not represent permits and approvals of the appropriate authorities and are guides only.

6:2 All drawings and sketches remain the Company's property and may not be copied or reproduced in any way.

7. Warranties

7:1 Subject to clauses 7.2 and 7.3 of these Terms, the Company warrants Goods against defects in materials, treatment or workmanship. If the Company receives notice of defects, it must either:

(a) replace the affected Goods or supply equivalent Goods;

(b) repair the affected Goods;

(d) pay any reasonable cost of repairing the Goods,

the choice of which is at its option.

7:2 If the Company, within a reasonable time, fails to comply with clause 7.1 of these Terms and Conditions, the Hirer will be entitled to a refund of any monies paid towards the agreed hire price of the Goods upon return delivery of the Goods to the Company, which is agreed as a reasonable pre-estimate of the Hirer's loss and damage.

7:3 The above warranties do not apply to defects or damage to the Goods arising from any improper use, storage, modification or other misuse including but not limited to:

(a) inproper adjustment, calibration or operation by the Hirer;

(b) the use of accessories, including consumables, hardware or software which were not manufactured by or approved in writing by Company;

(d) any modifications to the Goods which were not authorised in writing by Hirer;

(e) any misuse, neglect or abuse of the Goods by the Hirer or anyone for whom the Buyer has legal responsibility (including a minor);

(f) fair wear and tear; and

(g) any other use of the Goods not in accordance with the directions for use of the Goods, whether by the Hirer or any third party.

7:4 Except to the extent that the exclusion, restriction or modification of certain conditions, warranties and rights is prohibited in the context of these Terms and Conditions by the Trade Practices Act 1974 (Cth) or any equivalent State or Territory legislation or the Vienna Sales Convention as may apply to the supply of Goods hereunder, the above warranties are in lieu of, and the Hirer hereby waives and the Company disclaims, all other warranties, whether written or oral, express or implied, including but not limited to the implied warranties of merchantability and fitness for a particular purpose.

8. Liability

8:1 The Company's liability is limited to payments described in Section seven (7) above.

8:2 Notwithstanding clause 8.1 above in no event will the Company be liable for any of the following:

(a) actual loss or direct damage that is not listed in 7 above;

(b) damage for loss relating to the Purchaser's procurement of substitute products;

8:3 The Hirer shall indemnify the Company against any claim made against the Company by any third party in respect of any lost, damage, death or injury arising from the conduct of the Hirer (including its servants, agents and representatives) or of any third party (including any Erector/Installer of Goods).

8:4 The Hirer shall also indemnify the Company against all losses and costs which the Company may occur due to the Hirer failing to observe its obligations under this contract.

9. Retention of Title

The Hirer and the Company agree that the Goods remain the property of the Company at all times. If the Hirer fails to comply with any of these terms, the Company, without notice, may take possession of the Goods which were the subject of this reservation of title, or trace the proceeds of their sale (as applicable) and recover the full amount owing to Company together with any interest and costs. The Hirer must, to the extent reasonably possible, hold the Goods supplied by Company separately from other Goods held by the Hirer and marked in a way that makes it clear that they are Company's property pending payment in full of all monies herein mentioned. The Company may, without prejudice to any of its other rights and without notice, retake and resume possession of any of the Goods and for that purpose, by its employees or agents, enter the Hirer's premises, or any other such place as the Goods may be, without liability for trespass or any resulting damage, if:

(a) there is a breach of any contract between Company and the Hirer (including a breach of these terms and conditions); or

(b) the Hirer parts with possession of any of the Goods.

The Company may recover the price of the Goods by action, and may apply to wind up or bankrupt the Hirer, if the hire of the Goods is not paid for within Company's usual credit terms, even though property in the Goods has not passed to the Hirer. Consistently with the Hirer's intended use of the Goods, the Hirer must keep the Goods in such condition as the Goods were in when supplied, or in such closest condition as can be reasonably maintained. The provisions of this clause will apply irrespective of any arrangement under which Company provides the Hirer with credit. These provisions apply to the extent of any inconsistency between the two.

10. Wavier

No provision and no breach of any provision shall be deemed waived by reason of any breach hereof.

11. Disputes

If a dispute arises between the parties in relation to or in connection with this Hire Contract, either party may give to the other, notice in writing of the existence of such dispute and the same shall be referred to mediation by of a person to be mutually agreed upon, or failing agreement, a person appointed by the President of the Law Institute of Victoria

12. Delivery

12:1 The Hirer cannot reject the Goods due to short delivery.

12:2 If the Goods are delivered to the Hirer in more than one delivery, such part-load will not relieve the Hirer of its obligation to accept further deliveries of the balance of Goods.

12:3 The Company will make every endeavour to adhere to the dates given for delivery of the Goods but will accept no liability for failure to do so, irrespective of grounds.

13. Prices

13:1 The prices stated in any quotation or Hire order are current and subject to change by the Company without notice.

13:3 Unless otherwise stated in writing, hire rates are based on a minimum period of two (2) weeks.

13:4 The Hirer shall be liable for all charges upon signing the hire order or quotation even if the Goods are unavailable or cannot be used due to events described in Clause 16.

14. Insurance

All Goods delivered to the site are at the Hirer's risk. The Company does not insure the Goods while on site and the Hirer shall ensure that the Goods are adequately insured under an appropriate policy which will be made available for the Company’s inspection on request.

15. Conditions of the Goods

The Hirer shall not damage any signs affixed to the Goods during the period of hire or remove any displays of Company name, address or any other details, nor affix any signs unless authorised by the Company beforehand in writing.

16. Delay or Non-Performance

The Company shall not be responsible for delays in completion of or failure to complete the job in relation to which the Goods are hired, resulting from any act of default beyond the Company’s reasonable control, including but without limiting generality of the following: civil commotion, industrial disputes, strikes, lock-outs, epidemics, inclement weather, war, fire, accidents, government intervention or Acts of God.

17. Return of Goods

At the termination of hire all Goods shall be returned to the Company in good condition. The Hirer shall on demand pay for any Goods damaged or not returned at the current hire price for the affected Goods. Until payment is made Hire charges will continue to accrue plus all expenses and costs incurred by the Company due to such shortages or losses

18. Transfer of Goods

18:1 The Goods must remain in the Hirer’s possession during the Hire period and at the site specified for delivery and must not be transferred to any other location.

18:2 The Hirer must not sell or offer the sale of the Goods, re-hire or deal in any way with the Goods.

19. Termination

In the following instances the termination of this contract will apply without the Company being liable for any costs or penalties:

(a) The Hirer is a company and an application is made to wind up the Purchaser or a Receiver, Receiver and Manager, Official Manager, Agent for Mortgagee or an Administrator is appointed in respect of any part of the Purchaser's property, or an Inspector is appointed to investigate any of its affairs; or

(b) the Hirer makes an arrangement or composition with its creditors or proposes to do so; or

(d) the Hirer ceases or threatens to cease to carry on its business; or

(e) the Hirer has execution levied against any of its assets; or

the Hirer has a mortgagee enter, or seek to