1.1 In these Terms, words importing the singular include the plural and vice versa. References to a party includes a corporation, trust, partnership, unincorporated body, government and local authority or agency, or other entity whether or not it comprises a separate legal entity, and a reference to a party to this document includes the party's successors, permitted substitutes and permitted assigns. Any terms used in these Terms have the same meaning as in the Tax Invoice.
1.2 In these Terms:
(a) “ACL” means the Australian Consumer Law located in Schedule 2 of the CCA;
(b) “CCA” means the Competition and Consumer Act 2010 (Cth) and all related regulations, as amended from time to time;
(c) “Collection Address” means the address specified in the Tax Invoice as the address where the Customer may collect and return the Equipment;
(d) “Confidential Information” means all information not in the public domain as at the date of the Hire Agreement whether oral, in writing, or recorded in any other medium or mode of storage in relation to the parties to the Hire Agreement and includes (without limiting the generality of the following):
(i) all pricing information and any other commercially sensitive or confidential information relating to the Credit Application Form;
(ii) information and material proprietary or confidential to either party including Intellectual Property Rights;
(iii) all information (regardless of how it is recorded or stored) relating to the business of either party, including any subsidiaries, clients and suppliers; and
(iv) any other information particular to either party’s business
that is commercially sensitive;
(e) “Corporations Act” means the Corporations Act 2001 (Cth) as amended from time to time;
(f) “Customer” means the person, firm, organisation, or corporation hiring the Equipment from EMS as set out in the Tax Invoice;
(g) “Delivered” means:
(i) the delivery and set up (if applicable) of the Equipment by EMS at the Delivery Address; or
(ii) the collection by the Customer from EMS at the Collection Address,
and the signing by the Customer of EMS’s standard form acknowledging delivery or collection of the Equipment;
(h) “Delivery Address” means the address specified in the Tax Invoice as the address where the Equipment is set up, or to be set up, once Delivered;
(i) “Delivery Date” means the date specified in the Tax Invoice as the date the Equipment is to be Delivered;
(j) “Deposit” means an amount equal to 30% of the Hire Amount;
(k) “EMS” means Events Made Special Pty Ltd as trustee for the EMS Trust, trading as Events Made Special;
(l) “Equipment” means all equipment supplied by EMS to the Customer as set out in the Tax Invoice and includes all additional items supplied with the Equipment which may not be listed in the Tax Invoice, but which are required for the Equipment to function or fulfil its purpose(including but not limited to shot bags, cables, and lights);
(m) “Force Majeure Event” means any cause or circumstance beyond EMS’s reasonable control, including but not limited to, any lack of production capacity or raw materials, strikes, lock- outs, labour disputes, accidents breakdowns and plant shutdowns, pandemic, epidemic, storm, tempest, fires, floods, earthquakes or other natural calamity, acts of God or public enemy, malicious or accidental damage, delays in transport, breakdowns in machinery or restrictions or prohibitions by any government or any semi-government authorities or embargoes, or a Government Authority’s direction in regard to any communicable disease including COVID-19 that materially affects a party;
(n) “GST” means the tax payable on a Taxable Supply within the meaning of the GST Act;
(o) “GST Act” means the A New Tax System (Goods and Services Tax) Act 1999 (Cth) as amended from time to time, and any related Act imposing such tax or legislation that is enacted to validate, recapture, or recoup such tax;
(p) “Government Authority” means a local, State or Federal government, or a Minister or government department of each of those governments, a corporation or authority constituted for a public purpose, a holder of an office for a public purpose, and an agent or employee of such a body;
(q) “Hire Agreement” means the agreement comprised by these Terms and the Tax Invoice;
(r) “Hire Amount” means all amounts payable by the Customer to EMS in relation to the supply of the Equipment or the Services, including any applicable GST specified in the Tax Invoice;
(s) “Insolvency Event” means in relation to a Party:
(i) a receiver, receiver and manager, trustee, administrator, another controller (as defined in the Corporations Act) or similar official is appointed over any of the assets or undertaking of the other Party;
(ii) the Party suspends payment of debts generally;
(iii) the Party is or becomes unable to pay its debts when they are due or is or becomes unable to pay its debts or is presumed to be insolvent within the meaning of the Corporations Act;
(iv) the Party enters into or resolves to enter into any arrangement, composition or compromise with, or assignment for the benefit of, its creditors or any class of them;
(v) the Party ceases to carry on business or threatens to cease to carry on business;
(vi) a resolution is passed, or any steps are taken to appoint, or to pass a resolution to appoint, an administrator; or
(vii) an application or order is made for the winding up, or dissolution of the other Party or a resolution is passed, or any steps are taken to pass a resolution for the winding up or dissolution of the other Party, otherwise than for the purpose of an amalgamation or reconstruction that has the prior written consent of the first Party;
(t) “Intellectual Property” means all intellectual and industrial property or protected rights throughout the world (whether present or future rights), including in or in relation to copyright, (including copyright in templates, policies, activity plans, procedures, user application documents, patient agreements, forms, training manuals), moral rights, patents, trademarks, circuit layouts, trade names, confidential information, know-how, procedures, trade secrets, registered or unregistered designs, database rights, business and domain names, plant varieties, and other results of intellectual activity in the industrial, commercial, scientific, literary or artistic fields, whether or not registrable, registered or patentable whether or not any of them is registered and including applications for registration of any such thing, of or relating to a party including:
(i) any application or right to apply for registration of any of these rights;
(ii) any registration of any of those rights or any registration of any
application referred to in paragraph (i); and
all renewals and extensions of these rights;
(u) “Intellectual Property Rights” means any rights at law to own or be registered under any statutory regime as the proprietor of any Intellectual Property;
(v) “Party” means either EMS or the Customer, and “Parties” means both of them;
(w) “Return Date” means the date specified in the Tax Invoice as the date the Equipment is to be Returned;
(x) “Returned” means:
(i) the pack up (if applicable) and collection of the Equipment by EMS from the Customer at the Delivery Address; or
(ii) the return of the Equipment by the Customer to EMS at the Collection Address,
and the Equipment is back in EMS’s possession and control;
(y) “Services” means services supplied by EMS to the Customer in relation to the Equipment;
(z) “Tax Invoice” means the tax invoice issued to the Customer by EMS in relation to the Equipment and Services;
(aa) “Taxable Supply” has the meaning given to the term in the GST Act; and
(bb) “Terms” means these Terms and Conditions of Hire.
2. Agreement Terms
2.1 The Customer is taken to have accepted and is immediately bound, jointly and severally, by these Terms at the time the Customer requests the hire of Equipment;
2.2 Unless other terms and conditions are expressly accepted by EMS by means of a written amendment to these Terms signed by EMS and referring specifically to the Terms to be amended, these Terms shall exclude and supersede all prior or subsequent discussions, representations and arrangements, and any other oral or written terms and conditions whether or not the same are endorsed upon, delivered with, or referred to by the Customer.
3. Hire of EMS Equipment
3.1 The hire of the Equipment commences from the Delivery Date and continues until the Return Date (“Hire Period”). The obligations under the Hire Agreement only end once the Equipment is Returned and fit for the purpose of hire again, and includes all weekends and public holidays during that period.
3.2 The Customer acknowledges and agrees that while EMS will endeavour to have the Equipment Delivered and Returned on the Delivery Date and Return Date respectively, such dates are subject to change at short notice due to operational and/or weather circumstances.
3.3 The Customer is entitled to use the Equipment in accordance with these Terms for the Hire Period in consideration for the Hire Amount.
3.4 Any extension of the Hire Period must be agreed to by EMS and EMS reserves its rights to refuse to extend the Hire Period.
3.5 A minimum Hire Period of 3 days applies to all Equipment unless the Customer is otherwise advised by EMS on or before the Delivery Date.
3.6 The Customer agrees that The Equipment is to be Returned by the Return Date, or upon demand from EMS and the Customer agrees that the Hire Agreement may be terminated at any time by EMS without giving any reason.
3.7 The Customer acknowledges that EMS has the right to inspect the Equipment at all times during the Hire Period and to allow this, the Customer gives EMS the right to enter any property where the Equipment may be located.
3.8 The Customer acknowledges that where Equipment is Returned early by the Customer, or where EMS retakes possession of the Equipment in accordance with clause 17, the total Hire Amount will apply.
3.9 The Customer may, upon giving EMS not less than 5 business days’ notice prior to the Delivery Date, reschedule the Hire Period to other available dates (within the following 6 month period from the Delivery Date) at no extra cost provided the length of the Hire Period is not extended.
3.10 For the purposes of clause 3.9, if:
(a) the Customer gives less than 5 business days’ notice and reschedules the Hire Period to other available dates (within the following 6 month period from the Delivery Date) EMS will charge a rescheduling fee of $250.00;
(b) the Customer reschedules the Hire Period to dates outside the 6 month period from the Delivery Date, the Customer shall be deemed to have cancelled the booking and the provisions of clauses 4.3 and 5.1 shall apply;
(c) in either the case of clause 3.10(a) or (b), if;
(i) the Hire Period is lengthened, a further Hire Amount for the additional days hire will be payable and the Customer will be required to pay a correspondingly increased Hire Amount;
(ii) the Hire Period is shortened, there may, at the sole discretion of EMS, be a reduction in the Hire Amount.
3.11 The Customer acknowledges that EMS may make, create, store, record, transmit or reproduce photographs, electronic images and videography of the Equipment once setup at the Delivery Address and the Customer consents that EMS, or its authorized third parties, may use these photographs, electronic images or
videography for marketing and promotional purposes without identification or compensation of any kind.
4. Payment for Hire
4.1 The Customer agrees to pay EMS the Hire Amount (inclusive of all charges for the Equipment to be Delivered and Returned by EMS if applicable) specified in the Tax Invoice for the Equipment for the Hire Period.
4.2 The Hire Amount must be paid in full to EMS before the Equipment is Delivered, failing which the Customer will be deemed to have cancelled their booking.
4.3 The Customer agrees to pay the Hire Amount in full when placing the order for the Equipment. The Customer further acknowledges and agrees that that an amount equal to 30% of the Hire Amount is a genuine pre-estimate of the loss to EMS resulting from the Customer’s cancellation (or deemed cancellation) of their booking, including factors such as EMS’s transaction costs, legal costs, finance costs, cost of recovery and lost opportunity.
5. Other Charges
5.1 A cancellation fee may be charged by EMS where the Equipment has been reserved by booking and the Customer cancels the booking without reasonable notice, or fails to take delivery of the Equipment. An amount equal to 30% of the Hire Amount may at the sole discretion of EMS be forfeited to EMS in payment of the cancellation fee.
5.2 EMS may charge the Customer a fee at their discretion for any payment of the Hire Amount made by credit card.
5.3 In addition to the Hire Amount and charges set out in the Hire Agreement, the Customer is responsible for:
(a) any physical damage to the Equipment;
(b) reasonable fees associated with any necessary cleaning or repairs on return of the Equipment that may be required where the Equipment is Returned in a poor or unclean state;
(c) EMS’s additional fees and charges where:
(i) the proposed site for installation of the Equipment is not level;
(ii) the proposed site for installation of the Equipment does not allow for truck and forklift access if required;
(iii) the Customer requires that the Equipment be delivered and/or installed further than a 100 metre walk from EMS’s parked vehicle; and/or
(iv) the Customer requires that the Equipment be delivered and/or installed on a level other than ground floor and/or where stairs, lift access or similar is required;
(d) additional charges if the proposed site is not ready by the arranged date and time for the Equipment to be Delivered or Returned; and
(e) consumables and/or fines arising out of use of the Equipment.
5.4 If the Customer does not pay the Hire Amount in full by the due date, EMS may:
(a) charge the Customer, in addition to any other costs recoverable under these Terms, interest of 1.5% compounding monthly on the total outstanding balance; and
(b) charge the Customer 100% of all costs and expenses incurred by EMS in recovering any unpaid amounts under the Hire Agreement, along with interest of 1.5% compounding monthly.
5.5 If the Customer requires:
(a) the Equipment to be Delivered by EMS delivering it to, and setting it up (if applicable) at, the Delivery Address; and
(b) the Equipment to be Returned by EMS packing it up (if applicable) at, and collecting it from the Delivery Address,
EMS may charge the Customer an additional delivery/collection fee, and which in that case the applicable fee will be set out in the Tax Invoice.
5.6 If EMS is required to retake possession of the Equipment in accordance with clause 17, the Customer will be liable for EMS’s costs to recover the Equipment.
6. Loss and Damage
6.1 The Customer must:
(a) take adequate and reasonable precautions to protect the Equipment against theft or burglary;
(b) not use or operate the Equipment negligently or outside of the design parameters, for a purpose other than the Equipment’s intended purpose, any instructions or directions by EMS given to the Customer for the proper use of the Equipment;
(c) not use or operate the Equipment in an abusive, unsound, or unlawful manner; and
(d) only use and operate the Equipment in accordance with these Terms.
6.2 EMS are not liable to the Customer in any way for any use of the Equipment that is in breach of the Hire Agreement.
6.3 The Customer will be responsible for any loss or damage to the Equipment irrespective of how the loss or damage occurred, including all wear and tear, during the Hire Period.
6.4 EMS gives no guarantee as to the condition, safety or suitability of the Equipment. The Customer releases EMS from any liability for any loss or damage caused by any break down or failure of the Equipment.
6.5 The Customer acknowledges and agrees that the Equipment is in the Customers possession and control once Delivered.
6.6 The Customer is liable for the payment of the new purchase price of any Equipment not
Returned to EMS.
6.7 The Customer agrees to fully reimburse EMS in the event of any damage or loss of the Equipment.
6.8 EMS acknowledges and agrees that EMS will notify the Customer of any personal goods or property belonging to the Customer, and that the Customer has left with the Equipment, and is collected with the Equipment within a reasonable period. The Customer agrees that it will collect these goods or property within 14 days of notification, after which EMS may choose to dispose of the goods at the discretion of EMS.
7. Repair of the Equipment
7.1 EMS may, upon receiving notice of a breakdown or failure of the Equipment, in its complete discretion:
(a) take all necessary steps to repair or have the Equipment repaired;
(b) provide suitable replacement Equipment as soon as reasonably practicable after receiving notification from the Customer and may elect to cover the delivery costs of providing replacement Equipment, where EMS deems that any breakdown or failure is not the result of misuse by the Customer or use inconsistent with these Terms; and/or
(c) terminate the Hire Agreement and refund the Customer any part of the Hire Amount that relates to the period that the Equipment is not capable of use in the Hire Period.
7.2 The Customer agrees that:
(a) EMS’s liability for loss or damages that arise from a breakdown or failure of the Equipment is limited to the Hire Amount and EMS are not responsible for any consequential loss or damages incurred by the Customer or a third party arising from the breakdown or failure of the Equipment; and
(b) EMS are not obliged to repair or replace the Equipment.
8. Personal Property Securities Act 2009 (“PPSA”)
8.1 In relation to any security interest constituted or contemplated in relation to any proceeds arising from the supply of Equipment by EMS, the Customer consents to EMS effecting and maintaining a registration on the Personal Property Securities Register (“PPSR”) (in the manner EMS considers necessary.
8.2 The Customer also agrees to sign any documents and provide all cooperation to EMS required to facilitate that registration and maintenance. At EMS’s sole discretion, EMS may register a financing statement or financing change statement in respect of a security interest at any time. The Customer's right to receive notice of a verification statement regarding the registration of a security interest on the PPSR in respect of Equipment supplied on account is hereby waived.
8.3 The Customer agrees:
(a) not to register a security interest in respect of the Equipment by lodging a finance statement on the PPSR;
(b) not to grant a security interest to a third party in respect of the Equipment;
(c) not to take any steps in respect of the Equipment that is adverse to EMS’s ownership of the Equipment;
(d) to waive any rights that it might have in respect of the Equipment to register a security interest or grant a security interest to a third party; and
(e) not to register a financing change statement in respect of a security interest contemplated or constituted by this Agreement or in favour of a third party, without EMS’s prior written consent.
8.4 The Customer will pay all costs, expenses and other charges incurred, expended or payable by EMS in relation to the filing of a financing statement or financing change statement in connection with this Agreement.
8.5 If Chapter 4 of the PPSA would otherwise apply to the enforcement of a security interest arising under or in connection with this Agreement and sections 115(1) or 115(7) of the PPSA allows for contracting out, then the following provisions of the PPSA will not apply and the Customer will have no rights under them:
(a) in respect of section 115 (1) - section 95 (to the extent of notices to the granter); section 96; section 118 (to the extent of notices to the granter); sections 121(4), 125, 130, 132(3Xd), 132(4), 135, 142 and 143; and
(b) in respect of section 115(7) - sections 127, 129(2), 129(3), 130(i), 132, 143(s), 135, 136(3), 136(4), 136(5), 137 and 275(7Xc).
8.6 The Customer and EMS agree not to disclose information of the kind referred to in section 275(1) of the PPSA.
8.7 For the sake of clarity, the Equipment supplied is the collateral and the security agreement is this Agreement pursuant to the PPSA.
8.8 In respect of the PPSA, goods means all of the Equipment supplied to the Customer from time to time, provided that:
(a) (but solely for the purpose of the application of the PPSA) where the Equipment supplied is the Customer's inventory, then all references to Equipment in these Conditions shall in respect of that Equipment, be read as references to inventory for so long as they are held as inventory; and
(b) where the Equipment supplied is not, or is no longer held as, the Customer's inventory, then all references to Equipment in these Conditions shall, in respect of that Equipment means the Equipment described in any one or more of the relevant order form. packing slip or invoice (or its equivalent, whatever called) prepared by EMS and relating to those goods, on the basis that each such order form. packing slip or invoice (or its equivalent) is deemed to be assented to by the Customer, incorporated in and form
part of these Terms and Conditions; and
(c) unless the context requires otherwise, includes all proceeds of such Equipment and any product or mass which the Equipment subsequently become part of.
8.9 The Customer agrees that in the event of external administration of the Customer, the Customer will disclose the quantity or volume of Equipment as at the date of appointment of the external administrator.
8.10 Money received from the Customer in connection with the Hire Agreement may be applied by EMS towards the Customer's obligations under any security interest contemplated or constituted by the Hire Agreement in any way as EMS determines.
8.11 The Customer agrees to notify EMS immediately in writing of any material change to the information contained in or associated with this Agreement.
8.12 The Customer must not create, purport to create or allow to be created any security interest in the Equipment supplied under any circumstances.
9. On Hire to Third Parties or use by Third Parties
9.1 The Customer must not, without the prior written approval of EMS:
(a) on-hire the Equipment to any third party under any circumstances; or
(b) permit the Equipment to be used by anyone other than the Customer.
9.2 For the sake of clarity, unless the prior written approval of EMS has been obtained:
(a) on hire to third parties; and
(b) use by third parties,
is expressly prohibited under the Hire Agreement.
10. Customer warranties
10.1 The Customer warrants that:
(a) they have the right, power and authority to enter into and perform the obligations in accordance with the Hire Agreement;
(b) they will use the Equipment in accordance with the Terms;
(c) the Equipment will only be used for its intended purpose and in accordance with any instructions and recommendations whether they are supplied by EMS or posted on the Equipment in regard to its operation, maintenance and storage;
(d) the Equipment will not be used for any illegal purpose or activity;
(e) they will ensure that all persons operating or erecting (if the persons operating or erecting the Equipment are not EMS employees or contractors) or using the Equipment are instructed in its safe and proper use;
(f) they agree, at their own cost, to operate, maintain, store and transport the Equipment strictly in accordance with any instruction provided by EMS and with due care and diligence;
(g) they will ensure that the Equipment will be stored in a safe and secure environment and where available, they agree to store the Equipment in locked buildings or sheds;
(h) if the Equipment is to be Delivered by the Customer collecting it from EMS at the Collection Address, the Customer must transport the Equipment in a vehicle that is clean and fit for purpose, and the Customer further acknowledges that EMS takes no responsibility for the Customer’s transportation of the Equipment nor the Customer’s securing of their load comprising the Equipment, and further that EMS reserve the right not to allow the Customer to load the Equipment if the Customer’s vehicle for transporting the Equipment is not clean or fit for purpose in EMS’s sole opinion;
(i) they will not, without EMS’s prior written permission, move any Equipment that has been set up by EMS when Delivered (except in the case of an emergency for the protection of the Equipment) or tamper with, repair or modify the Equipment in any way, or permit another to do so;
(j) they agree that the Equipment has been received by the Customer clean and in good working order, unless they have notified EMS immediately upon becoming aware that the Equipment is not clean and in good working order;
(k) when the Equipment is Returned, it will be clean, undamaged, and in good working order; and
(l) subject to clause 8, the Customer will not create or allow to be created any security interest in the Equipment.
(m) it will provide EMS with a safe work environment and will advise EMS of any matters that may impact the ability of EMS to supply the Equipment in a safe matter. Should there be a matter which detracts from the ability of EMS to supply the Equipment safely, EMS may refuse the supply.
11. Exclusions and limitation of liability
11.1 The Customer expressly agrees that use of the Equipment is at the Customer’s risk. To the full extent allowed by law, EMS’s liability for breach of any term implied into these terms of trade by any law are excluded.
11.2 EMS gives no warranty in relation to the Equipment provided to the Customer. Under no circumstances is EMS liable to the Customer or any other persons for any loss, damages, costs, expenses or other claims (including consequential damages and loss of profits or loss of revenue) as a result of any defect, deficiency in the Equipment, discrepancy or variation in the Equipment provided, or failure of the Equipment.
11.3 Any advice, recommendation, information, assistance or service given by EMS in relation to the provision of the Equipment to the Customer is
given in good faith and is believed to be accurate, appropriate and reliable at the time it is given. Such advice, recommendation, information, assistance or service is given without any warranty or accuracy, appropriateness or reliability. EMS is not liable for any loss suffered by the Customer as a result of the Customer’s reliance on such, advice, recommendation, information, assistance or service.
11.4 The ACL may give to the Customer certain consumer guarantees, which cannot be restricted, limited or varied.
12. Customer Indemnities
12.1 To the full extent permitted by law, the Customer releases, discharges, indemnifies and keeps EMS indemnified from any claims or demands made or action (and includes but is not limited to, any legal costs incurred by EMS in relation to meeting any claim, or demand, EMS is liable for in connection with any such claim or demand) commenced by any persons (including but not limited to the Customer) against EMS or, for which EMS is liable, in connection with any loss arising from or incidental to:
(a) the provision of Equipment to the Customer under the Hire Agreement or the subject matter of these Terms; and/or
(b) or consequent on the use or misuse of the Equipment during the Hire Period.
12.2 Without limiting clause 12.1, the Customer agrees that to the full extent permitted by law, no warranties are given by EMS in respect of the Equipment. Any liability of EMS pursuant to any warranty which cannot be excluded by law will not exceed either the cost of repairing the Equipment or for the cost of resupplying the Equipment, at EMS’s sole discretion.
13. Customer Responsibilities
13.1 The Customer must:
(a) if the Equipment requires power, to provide a power supply to the Equipment that is safe and has an appropriate and functioning safety switch of a quality, and fitted, to meet Australian standards.
(b) if the Equipment is damaged, notify EMS within 24 hours of becoming aware of the damage;
(c) if there is a breakdown or failure of the Equipment, immediately stop using the Equipment and notify EMS;
(d) take all necessary steps to prevent injury occurring to persons or property as a result of the condition of the Equipment;
(e) take all necessary steps to prevent any further damage to the Equipment itself;
(f) use the Equipment only for its intended purpose, safely, lawfully and in accordance with any instructions, or directions from EMS and in a manner that is consistent with these Terms; and
(g) keep the Equipment clean, in a good condition and at the end of the Hire Period it is to be Returned clean, undamaged and in good working order.
14. Customer Liability
14.1 The Customer will assume all risks and liabilities for, and in respect of, the Equipment and for all injuries to or deaths of persons and any damage to property howsoever arising from the Customer's possession, use, maintenance, repair, storage or transport of the Equipment.
15.1 To the extent permitted by law, EMS disclaims all liability for and does not give any warranties to the Customer as to the condition of the Equipment.
16. EMS own the Equipment
16.1 The Customer acknowledges that EMS retains title to the Equipment (which shall not be deemed to be a fixture), and that the Customer has rights to use the Equipment as a mere bailee only. The Customer agrees that the Customer has no rights to pledge EMS credit in connection with the Equipment, or use the Equipment as security.
16.2 The Customer agrees not to sell, offer to sell, assign, sub-let, charge, lend, pledge, mortgage, let or hire or otherwise part with or attempt to part with personal possession of, or create any security interest over, the Equipment.
16.3 The Customer agrees not to conceal, alter or make any addition to the Equipment.
16.4 The Customer agrees not to transfer or assign any of its rights or obligations under the Hire Agreement without EMS’s prior written consent.
17. Customer default
17.1 EMS may retake possession of the Equipment if:
(a) the Customer fails to pay any Hire Amount in full by the due date;
(b) the Customer permits any act or omission where EMS’s rights to the Equipment may be prejudiced;
(c) the Customer is the subject of an Insolvency Event;
(d) EMS reasonably suspects that the Customer is not using or operating the Equipment as required or permitted pursuant to these Terms;
(e) the Customer is in breach of any provision of the Hire Agreement or these Terms; or
(f) the Hire Period ends and the Equipment is not Returned.
17.2 All costs incurred by EMS in repossessing the Equipment are to be paid by the Customer.
17.3 In the case of repossession the Customer agrees to grant EMS permission to enter any premises where the Equipment listed in the Hire Agreement is situated to remove that Equipment.
17.4 In addition to EMS’s right to retake possession,
EMS are entitled (in EMS’s sole discretion), following any breach of any provision of the Hire Agreement by the Customer, to terminate the Hire Agreement and/or sue for recovery of any damages or charges or loss suffered by EMS.
18. End of Hire Period
18.1 The Customer must ensure the Equipment is Returned to EMS by the Return Date.
18.2 Where Equipment is not Returned, on the Return Date, the Customer will be charged for any Equipment not Returned, at a pro-rata rate as per the Tax Invoice.
18.3 If the Equipment is not Returned in a clean condition, the Customer agrees to pay a reasonable cleaning fee (to be determined by EMS).
19. Force Majeure
19.1 Subject to clause 19.3, EMS will not be responsible for any delay in the Equipment being Delivered or Returned due to a Force Majeure Event.
19.2 If circumstances beyond EMS’s control prevent or hinder its provision of the Equipment, EMS is free from any obligation to provide the Equipment while those circumstances continue. EMS may elect to terminate this Hire Agreement or keep the agreement on foot until such circumstances have ceased.
19.3 Nothing in clause 19.1 will limit or exclude the Customer responsibilities and liabilities under the Hire Agreement for Equipment that is lost, stolen, or damaged during the Hire Period, or has broken down or become unsafe to use as a result of the Customer’s conduct or negligence or breach of the Hire Agreement.
20.1 As security for the Customer obligations and liabilities under the Hire Agreement, the Customer agrees to charge all of the Customer's legal and equitable interests (both present and future) of any nature, however held, in any and all real property.
20.2 The Customer agrees to sign any documents and do all things reasonably required by EMS to register a mortgage security or other instrument of security (including a caveat noting EMS’s interest) over any real property and if the Customer fails to do so immediately, the Customer irrevocably appoints any solicitor engaged by EMS to be the Customer’s lawful attorney to sign and register such instruments of security.
20.3 The Customer agrees to indemnify EMS on an indemnity basis against all costs and expenses incurred by EMS in connection with the preparation and registration of any such instrument of security.
21.1 Nothing in these Terms is intended to exclude, restrict or modify rights which the Customer may have under the CCA or any other legislation which may not be excluded, restricted, or modified by agreement.
21.2 A party waives a right under these Terms only if it does so in writing. EMS does not waive a right simply because it fails to exercise the right, delays exercising the right or only exercises part of the right. A waiver of one breach of a term of these Terms does not operate as a waiver of another breach of the same term or any other term.
21.3 The covenants, agreements and obligations contained in the Hire Agreement will not merge or terminate upon the termination of the Hire Agreement and to the extent that they have not been fulfilled or satisfied or are continuing obligations they will remain in force and effect.
21.4 If a provision in these Terms is wholly or partly invalid or unenforceable in any jurisdiction, that provision or the part of it that is invalid or enforceable must, to that extent, and in that jurisdiction, be treated as deleted from these Terms. This does not affect the validity or enforceability of the remaining provisions in that jurisdiction, or of the deleted provision in any other jurisdiction.
21.5 EMS may assign or otherwise deal with the benefit of any contract made pursuant to these Terms without the consent of the Customer.
21.6 The Hire Agreement is governed by the laws of the State of Queensland and each party submits to the exclusive jurisdiction of the Queensland Courts for all purposes.
21.7 The Customer acknowledges that:
(a) it and/or its signatory has the authority to enter into the Hire Agreement and sign on behalf of the Customer; and
(b) it has read, understood, and agrees to the Hire Agreement.