Terms and Conditions

Definitions
1. “A.S” shall mean Malcolm Lightfoot T/A Access Scaffolding (Queensland), its successors and assigns or any person acting on behalf of and with the authority of Malcolm Lightfoot T/A Access Scaffolding (Queensland).
2. “Client” shall mean the Client or any person acting on behalf of and with the authority of the Client.
3. “Guarantor” means that person (or persons), or entity who agrees herein to be liable for the debts of the Client on a principal debtor basis.
4. “Equipment” shall mean Equipment supplied on hire by A.S to the Client (and where the context so permits shall include any supply of services) and is as described on the invoices, quotation, authority to hire, or any other work authorisation forms as provided by A.S to the Client.
5. “Minimum Hire Period” shall mean the Minimum Hire Period as described on the invoices, quotation, authority to hire, or any other forms as provided by A.S to the Client.
6. “Price” shall mean the cost of the hire of the Equipment as agreed between A.S and the Client subject to clause 3 of this contract.
Acceptance
1. Any instructions received by A.S from the Client for the hire of Equipment and/or the Client’s acceptance of Equipment supplied on hire by A.S shall constitute acceptance of the terms and conditions contained herein.
2. Where more than one Client has entered into this agreement, the Clients shall be jointly and severally liable for all payments of the Price.
3. Upon acceptance of these terms and conditions by the Client the terms and conditions are irrevocable and can only be amended with the written consent of A.S.
4. The Client shall give A.S not less than fourteen (14) days prior written notice of any proposed change of ownership of the Client or any change in the Client’s name and/or any other change in the Client’s details (including but not limited to, changes in the Client’s address, facsimile number, or business practice). The Client shall be liable for any loss incurred by A.S as a result of the Client’s failure to comply with this clause.
Price And Payment
1. At A.S’s sole discretion the Price shall be either;
2. as indicated on invoices provided by A.S to the Client in respect of Equipment supplied on hire; or
3. A.S’s quoted Price (subject to clause 3.2) which shall be binding upon A.S provided that the Client shall accept in writing A.S’s quotation within thirty (30) days.
4. A.S reserves the right to change the Price in the event of a variation to A.S’s quotation. Any variation from the plan of scheduled works or specifications (including, but not limited to, any variation as a result of additional works required at the Clients request that are outside of the scope of the original quote or as a result of increases to A.S in the cost of materials and labour) will be charged for on the basis of A.S’s quotation and will be shown as variations on the invoice. Payment for all variations must be made in full at their time of completion.
5. At A.S’s sole discretion a non-refundable deposit may be required.
6. At A.S’s sole discretion a bond may be required which shall be refunded upon return of the Equipment in a condition acceptable to A.S.
7. A.S may submit a detailed payment claim at intervals not less than one week for Equipment on hire and/or work performed up to the end of each week.
8. At A.S’s sole discretion:
9. payment shall be due on delivery of the Equipment; or
10. payment shall be due before delivery of the Equipment; or
11. payment for approved Clients shall be made by instalments in accordance with A.S’s payment schedule; or
12. payment for approved Clients shall be due fourteen (14) days following the end of the month in which a statement is posted to the Client’s address or address for notices.
13. Time for payment for the Equipment shall be of the essence and will be stated on the invoice or any other forms. If no time is stated then payment shall be due seven (7) days following the date of the invoice.
14. The date upon which the Client advises of termination shall in all cases be treated as a full day’s hire.
15. Payment will be made by cash, or by cheque, or by bank cheque, or by credit card (plus a surcharge of up to two and one half percent (2.5%) of the Price), or by direct credit, or by any other method as agreed to between the Client and A.S.
16. GST and other taxes and duties that may be applicable shall be added to the Price except when they are expressly included in the Price.
Hire Period
1. The hire Charges shall commence from the time the Equipment is collected by the Client from A.S’s premises and will continue until the return of the Equipment to A.S’s premises, and/or until the expiry of the Minimum Hire Period, whichever last occurs.
2. If A.S agrees with the Client to deliver and/or collect the Equipment, hire charges shall commence from the time the Equipment leaves A.S’s premises and continue until the Client notifies A.S that the Equipment is available for collection, and/or until the expiry of the Minimum Hire Period, whichever last occurs.
3. No allowance whatsoever can be made for time during which the Equipment is not in use for any reason, unless A.S confirms special prior arrangements in writing. In the event of Equipment breakdown provided the Client notifies A.S immediately, hiring charges will not be payable during the time the Equipment is not working, unless the condition is due to negligence or misuse on the part of or attributable to the Client.
Delivery Of Equipment
1. At A.S’s sole discretion delivery of the Equipment shall take place when:
2. the Client takes possession of the Equipment at A.S’s address; or
3. the Client takes possession of the Equipment at the Client’s address; or
4. A.S’s nominated carrier takes possession of the Equipment in which event the carrier shall be deemed to be A.S’s agent and risk for the Equipment does not pass until the Client takes possession of the Equipment at the Client’s address; or
5. the Client’s nominated carrier takes possession of the Equipment in which event the carrier shall be deemed to be the Client’s agent.
6. At A.S’s sole discretion the costs of Delivery are:
7. included in the Price; or
8. are in addition to the Price; or
9. are for the Client’s account.
10. The Client may provide a representative to check the quantity of Equipment delivered or returned. If the Client does not provide a representative then the delivery docket will provide conclusive evidence as to the quantities delivered or returned and the Client’s representative shall notify A.S forthwith at the time of delivery or return of any discrepancies with the quantities of Scaffolding recorded.
11. The Client shall make all arrangements necessary to take delivery of the Equipment whenever it is tendered for delivery. In the event that the Client is unable to take delivery of the Equipment as arranged then A.S shall be entitled to charge a reasonable fee for redelivery.
12. A.S may deliver the Equipment by separate instalments. Each separate instalment shall be invoiced and paid for in accordance with the provisions in these terms and conditions.
13. A.S shall not be liable for any loss or damage caused in accessing the worksite beyond the control of A.S (including, without limitation, damage to pathways, driveways and concreted or paved or grassed areas).
14. Delivery of the Equipment to a third party nominated by the Client is deemed to be delivery to the Client for the purposes of this agreement.
15. The Client shall be responsible for free access by A.S to the site on which the Equipment is located. If there are any delays due to free access not being available then the Client shall be responsible and shall reimburse A.S for all lost hire fees associated with the Equipment being unavailable. The Client shall also be responsible for all other expenses and costs incurred by A.S due to delays in access to the Equipment. The off-hire receipt will be issued when the Equipment is picked up by A.S or returned to A.S’s premises.
16. The failure of A.S to deliver shall not entitle either party to treat this contract as repudiated.
17. A.S shall not be liable for any loss or damage whatever due to failure by A.S to deliver the Equipment (or any of it) promptly, or at all, where due to circumstances beyond the control of A.S.
Risk
1. A.S retains property in the Equipment nonetheless all risk for the Equipment passes to the Client on delivery.
2. The Client accepts full responsibility for the safekeeping of the Equipment and indemnifies A.S for all loss, theft, or damage to the Equipment howsoever caused and without limiting the generality of the foregoing whether or not such loss, theft, or damage is attributable to any negligence, failure, or omission of the Client.
3. The Client will insure, or self insure, A.S’s interest in the Equipment against physical loss or damage including, but not limited to, the perils of accident, fire, theft and burglary and all other usual risks and will effect adequate Public Liability Insurance covering any loss, damage or injury to property arising out of the Equipment. Further the Client will not use the Equipment nor permit it to be used in such a manner as would permit an insurer to decline any claim.
4. The Client accepts full responsibility for and shall keep A.S indemnified against all liability in respect of all actions, proceedings, claims, damages, costs and expenses in respect of any injury to persons or damage to property arising out of the use of the Equipment during the hire period however arising and whether or not arising from any negligence, failure or omission of the Client or any other persons.
5. Where the Client expressly requests A.S to leave the Equipment outside A.S’s premises for collection or to deliver the Equipment to an unattended location then such Equipment shall be left at the Client’s sole risk and it shall be the Client’s responsibility to ensure the Equipment is insured adequately or at all.
Title
1. The Equipment is and will at all times remain the absolute property of A.S.
2. If the Client fails to return the Equipment to A.S then A.S or A.S’s agent may enter upon and into land and premises owned, occupied or used by the Client, or any premises where the Equipment is situated as the invitee of the Client and take possession of the Equipment, without being responsible for any damage thereby caused.
3. The Client is not authorised to pledge A.S’s credit for repairs to the Equipment or to create a lien over the Equipment in respect of any repairs.
Defects
1. The Client shall inspect the Equipment on delivery and shall within seven (7) days notify A.S of any alleged defect, shortage in quantity, damage or failure to comply with the description or quote. The Client shall afford A.S an opportunity to inspect the Equipment within a reasonable time following delivery if the Client believes the Equipment is defective in any way. If the Client shall fail to comply with these provisions the Equipment shall be presumed to be free from any defect or damage. For defective Equipment, which A.S has agreed in writing that the Client is entitled to reject, A.S’s liability is limited to either repairing or replacing the Equipment, except where the Client has hired Equipment as a consumer within the meaning of the Trade Practices Act 1974 (CWlth) or the Fair Trading Acts of the relevant state or territories of Australia, and is therefore also entitled to, at the consumer’s discretion either a refund of the hire price of the Equipment, or repair of the Equipment, or replacement of the Equipment.
The Commonwealth Trade Practices Act 1974 (“TPA”) and Fair Trading Acts (“FTA”)
1. Nothing in this agreement is intended to have the effect of contracting out of any applicable provisions of the TPA or the FTA in each of the States and Territories of Australia, except to the extent permitted by those Acts where applicable.
Warranty
1. No Warranty is provided by A.S in respect of the condition of the Equipment or its fitness for any particular purpose. The Client shall indemnify and hold harmless A.S in respect of all claims arising out of use of the Equipment.
2. For Equipment not manufactured by A.S, the warranty shall be the current warranty provided by the manufacturer of the Equipment. A.S shall not be bound by nor be responsible for any term, condition, representation or warranty other than that which is given by the manufacturer of the Equipment.
Client’s Responsibilities
1. The Client shall:
2. notify A.S immediately by telephone of the full circumstances of any mechanical breakdown or accident. The Client is not absolved from the requirements to safeguard the Equipment by giving such notification;
3. satisfy itself at commencement that the Equipment is suitable for its purposes;
4. operate the Equipment safely, strictly in accordance with the law, only for its intended use, and in accordance with any manufacturer’s instruction whether supplied by A.S or posted on the Equipment;
5. ensure that all persons operating or erecting the Equipment are suitably instructed in its safe and proper use and where necessary hold a current Certificate of Competency and/or are fully licensed to operate the Equipment and shall provide evidence of the same to A.S upon request;
6. comply with all occupational health and safety laws relating to the Equipment and its operation;
7. on termination of the hire, the Client shall deliver the Equipment complete with all parts and accessories clean and in good order as delivered, fair wear and tear accepted, to A.S by 3.30pm on the day the Equipment is due for return;
8. keep the Equipment in their own possession and control and shall not assign the benefit of the hire contract nor be entitled to lien over the Equipment;
9. not alter or make any additions to the Equipment including but without limitation altering, make any additions to, defacing or erasing any identifying mark, plate or number on or in the Equipment or in any other manner interfere with the Equipment;
10. employ the Equipment solely in its own work and shall not permit the Equipment of any part thereof to be used by any other party for any other work;
11. not fix any of the Equipment in such a manner as to make it legally a fixture forming part of any freehold.
12. Immediately on request by A.S the Client will pay:
13. the new list price of any Equipment that is for whatever reason destroyed, written off or not returned to A.S;
14. all costs incurred in cleaning the Equipment;
15. all costs of repairing any damage caused by the ordinary use of the Equipment up to an amount equal to 10% of the new list price of the Equipment;
16. the cost of repairing any damage to the Equipment caused by the negligence of the Client or the Client’s agent;
17. the cost of repairing any damage to the Equipment caused by vandalism, or (in A.S’s reasonable opinion) in any way whatsoever other than by the ordinary use of the Equipment by the Client;
18. Where A.S is required to erect the Equipment, the Client shall ensure that the site on which the Equipment is to be erected is clear and suitable to accommodate the erected Equipment. The Client is liable to A.S for any costs, or damages which A.S may suffer or incur by reason of the Client’s failure to carry out their obligations hereunder.
19. The Client shall keep the Equipment, complete with all parts and accessories, clean and in good order, and shall comply with any maintenance schedule as advised by A.S, and shall allow A.S (at its sole desertion) to inspect the Equipment at the worksite.
Wet Hire
1. In the event of “wet” hire of the Equipment the operator of the Equipment remains an employee of A.S and operates the Equipment in accordance with the Client’s instructions. As such A.S shall not be liable for any actions of the operator in following the Client’s instructions.
Compliance with Laws
1. The Client and A.S shall comply with the provisions of all statutes, regulations and bylaws of government, local and other public authorities that may be applicable to the works.
2. The Client shall obtain (at the expense of the Client) all licenses and approvals that may be required for the works.
3. The Client agrees that the site will comply with any occupational health and safety laws relating to building/construction sites and any other relevant safety standards or legislation.
Cancellation
1. A.S may cancel these terms and conditions or cancel delivery of Equipment at any time before the Equipment is delivered by giving written notice. On giving such notice A.S shall repay to the Client any sums paid in respect of the Price. A.S shall not be liable for any loss or damage whatever arising from such cancellation.
2. In the event that the Client cancels delivery of the Equipment the Client shall be liable for any loss incurred by A.S (including, but not limited to, any loss of profits) up to the time of cancellation.
Default & Consequences Of Default
1. Interest on overdue invoices shall accrue daily from the date when payment becomes due, until the date of payment, at a rate of two and one half percent (2.5%) per calendar month (and at the Client’s sole discretion such interest shall compound monthly at such a rate) after as well as before any judgment.
2. In the event that A.S’s payment is dishonoured for any reason A.S shall be liable for any dishonour fees incurred by the Client.
3. If the Client defaults in payment of any invoice when due, the Client shall indemnify A.S from and against all costs and disbursements incurred by A.S in pursuing the debt including legal costs on a solicitor and own client basis and A.S’s collection agency costs.
4. Without prejudice to any other remedies A.S may have, if at any time the Client is in breach of any obligation (including those relating to payment) A.S may repossess the Equipment as per clause 7.2, or suspend or terminate the supply of Equipment to the Client and any of its other obligations under the terms and conditions. A.S will not be liable to the Client for any loss or damage the Client suffers because A.S has exercised its rights under this clause.
5. If any account remains overdue after thirty (30) days then an amount of the greater of $20.00 or 10.00% of the amount overdue (up to a maximum of $200) shall be levied for administration fees which sum shall become immediately due and payable.
6. Without prejudice to A.S’s other remedies at law A.S shall be entitled to cancel all or any part of any order of the Client which remains unperformed in addition to and without prejudice to any other remedies A.S may have and all amounts owing to A.S shall, whether or not due for payment, become immediately payable in the event that:
7. any money payable to A.S becomes overdue, or in A.S’s opinion the Client will be unable to meet its payments as they fall due; or
8. the Client becomes insolvent, convenes a meeting with its creditors or proposes or enters into an arrangement with creditors, or makes an assignment for the benefit of its creditors; or
9. a receiver, manager, liquidator (provisional or otherwise) or similar person is appointed in respect of the Client or any asset of the Client.
Security And Charge
1. Despite anything to the contrary contained herein or any other rights which A.S may have howsoever:
2. where the Client and/or the Guarantor (if any) is A.S of land, realty or any other asset capable of being charged, both the Client and/or the Guarantor agree to mortgage and/or charge all of their joint and/or several interest in the said land, realty or any other asset to A.S or A.S’s nominee to secure all amounts and other monetary obligations payable under the terms and conditions. The Client and/or the Guarantor acknowledge and agree that A.S (or A.S’s nominee) shall be entitled to lodge where appropriate a caveat, which caveat shall be released once all payments and other monetary obligations payable hereunder have been met.
3. should A.S elect to proceed in any manner in accordance with this clause and/or its sub-clauses, the Client and/or Guarantor shall indemnify A.S from and against all A.S’s costs and disbursements including legal costs on a solicitor and own client basis.
4. the Client and/or the Guarantor (if any) agree to irrevocably nominate constitute and appoint A.S or A.S’s nominee as the Client’s and/or Guarantor’s true and lawful attorney to perform all necessary acts to give effect to the provisions of this clause 16.1.
Privacy Act 1988
1. The Client and/or the Guarantor/s agree for A.S to obtain from a credit reporting agency a credit report containing personal credit information about the Client and Guarantor/s in relation to credit provided by A.S.
2. The Client and/or the Guarantor/s agree that A.S may exchange information about the Client and the Guarantor/s with those credit providers either named as trade referees by the Client or named in a consumer credit report issued by a credit reporting agency for the following purposes:
3. to assess an application by the Client; and/or
4. to notify other credit providers of a default by the Client; and/or
5. to exchange information with other credit providers as to the status of this credit account, where the Client is in default with other credit providers; and/or
6. to assess the credit worthiness of the Client and/or Guarantor/s.
7. The Client consents to A.S being given a consumer credit report to collect overdue payment on commercial credit (Section 18K (1) (h) Privacy Act 1988).
8. The Client agrees that personal credit information provided may be used and retained by A.S for the following purposes and for other purposes as shall be agreed between the Client and A.S or required by law from time to time:
9. the provision of Equipment on hire; and/or
10. marketing of services by A.S, its agents or distributors in relation to the Equipment; and/or
11. analysing, verifying and/or checking the Client’s credit, payment and/or status in relation to provision of Equipment on hire; and/or
12. processing of any payment instructions, direct debit facilities and/or credit facilities requested by Client; and/or
13. enabling the daily operation of Client’s account and/or the collection of amounts outstanding in the Client’s account in relation to the hire of the Equipment.
14. A.S may give information about the Client to a credit reporting agency for the following purposes:
15. to obtain a consumer credit report about the Client; and/or
16. allow the credit reporting agency to create or maintain a credit information file containing information about the Client.
Building and Construction Industry Payments Act 2004
1. At A.S’s sole discretion, if there are any disputes or claims for unpaid goods and/or services then the provisions of the Building and Construction Industry Payments Act 2004 may apply.
2. Nothing in this agreement is intended to have the affect of contracting out of any applicable provisions of the Building and Construction Industry Payments Act 2004 of Queensland, except to the extent permitted by the Act where applicable.
General
1. If any provision of these terms and conditions shall be invalid, void, illegal or unenforceable the validity, existence, legality and enforceability of the remaining provisions shall not be affected, prejudiced or impaired.
2. These terms and conditions and any contract to which they apply shall be governed by the laws of Queensland and are subject to the jurisdiction of the courts of Queensland.
3. A.S shall be under no liability whatever to the Client for any indirect loss and/or consequential loss and/or expense (including loss of profit) suffered by the Client arising out of a breach by A.S of these terms and conditions.
4. In the event of any breach of this contract by A.S the remedies of the Client shall be limited to damages. Under no circumstances shall the liability of A.S exceed the Price.
5. The Client shall not be entitled to set off against or deduct from the Price any sums owed or claimed to be owed to the Client by A.S.
6. A.S may license or sub-contract all or any part of its rights and obligations without the Client’s consent.
7. A.S reserves the right to review these terms and conditions at any time. If, following any such review, there is to be any change to these terms and conditions, then that change will take effect from the date on which A.S notifies the Client of such change.
8. Neither party shall be liable for any default due to any act of God, war, terrorism, strike, lock-out, industrial action, fire, flood, storm or other event beyond the reasonable control of either party.
9. The failure by the Client to enforce any provision of these terms and conditions shall not be treated as a waiver of that provision, nor shall it affect the Client’s right to subsequently enforce that provision.