Affitto.com.au

Terms and Conditions

GENERAL TERMS

CONDITIONS OF DRY HIRE

DRY HIRE TERMS AND CONDITIONS (MAY 2019)

INTRODUCTION

This Agreement consists of the following documents:

(a) these General Terms and Conditions of Dry Hire;

(b) the Schedule; and

(Agreement).

1. DEFINITIONS

In this Agreement:

(a) “Additional Charges” means any additional charges arising from or incidental to this Agreement, including:

(i) any administration fees or interest charged by Affitto; and

(ii) disposal costs (including hydrocarbon and tyre carcasses); and

(iii) any charges specified in Item 5 of the Schedule payable by the Hirer where the Equipment is used for more than the Usage Allowance;

(b) “Affitto” means Affitto Equipment Solutions Pty Ltd as trustee for the Affitto Equipment Solutions Unit Trust ABN 99 114 237 113 trading as Affitto Equipment Solutions;

(d) “Deposit” means the deposit specified in item 3 of the Schedule (if any);

(e) “Dry Hire” means the lease of the Equipment to the Hirer without an operator or labour provided by Affitto;

(f) “Equipment” means the equipment described in item 4 of the Schedule;

(g) “Fixed Period” means the period of time specified in Item 6b) of the Schedule;

(h) “Guarantor” means the person or persons specified as guarantors in Item 2 of the Schedule;

(i) “Hire Fee” means the hire fee specified in item 3 of the Schedule or as otherwise agreed by the parties;

(j) “Hire Period” means the set hire period specified in Item 6a) of the Schedule, or otherwise means a hire period of at least 2 years;

(k) “Hirer” means a person, firm, organisation or corporation hiring Equipment from Affitto specified in item 1 of the Schedule and includes any officer, employee or agent of the Hirer who signs this or any other document purportedly on the Hirer’s behalf may be taken by Affitto as having full authority to sign on Affitto’s behalf, and includes the Hirer’s executors, administrators, successors and permitted transferees and assigns;

(l) “Location” means the place specified in item 7 of the Schedule or such other place agreed in writing by the parties from time to time that the Equipment may be used or, as the context requires, the premises or address at which the Hirer and Affitto have agreed in writing from time to time that the Equipment will be kept, used or stored (as the case may be);

(m) “Major Repairs” means any repairs to a value of more than $2,000 plus GST per incident, subject to clause 6.2;

(n) “Operating Instructions” means any operating instructions or manuals provided with the Equipment;

(o) “Schedule” means the Schedule annexed to this Agreement;

(p) “Usage Allowance” means the Usage Allowance specified in Item 5 of the Schedule.

2. GRANT AND HIRE PERIOD

2.1 Grant

Affitto agrees to lease the Equipment to the Hirer on a Dry Hire basis.

2.2 Hire Period

(a) The Hirer shall lease the Equipment for the Hire Period.

(b) Affitto may, in its discretion, agree to extend the Hire Period in writing.

3. HIRE FEE AND PAYMENT

3.1 Hire Fee and Deposit

(a) The Hirer shall pay the Hire Fee and Additional Charges in accordance with this Agreement during the Hire Period, and until the Equipment is returned to Affitto in accordance with clause 10.3.

(b) Where required, the Hirer must pay the Deposit on or before the Commencement Date. Affitto reserves the right not to provide

the Equipment to the Hirer if the Hirer fails to pay the Deposit in full.

(c) The Hire Fee and Additional Charges may be varied by Affitto from time to time by way of written notice to the Hirer.

3.2 Payment

The Hire Fee and Additional Charges shall be payable strictly in accordance with following:

(a) payment of the Hire Fee and any Additional Charges are payable within 30 days of the date of each invoice provided to the Hirer by Affitto which will be provided on a monthly basis;

(b) the Hirer must pay the Hire Fee and any Additional Charges by direct electronic payment to a bank account nominated by Affitto or such other method of payment as agreed between the parties;

(c) if the Hirer does not pay any amount payable in accordance with this Agreement by the due date, in addition to any other rights Affitto may have under this Agreement, Affitto reserves the right to charge the Hirer an amount equal to 8% compounded daily on any amounts that remain due and payable until the date of payment of those amounts in full.

3.3 Hirer’s other payments

Unless otherwise agreed by the parties in writing, the Hirer must pay:

(a) all repair and operating expenses in respect of the Equipment including (without limitation) the cost of fuel and lubricant, the cost of replacement parts and accessories, transportation, labour and the costs of complying with any requirements referred to in clause 6.1; and

(b) an administration fee calculated at 10% of the relevant invoice, where Affitto arranges or organises any repairs, cleaning or other related tasks which the Hirer would have otherwise been required to arrange under this Agreement.

4. INSTALLATION AND DELIVERY

4.1 Delivery

(a) Unless otherwise agreed, transportation costs to and from the Location, including the supply of additional labour, equipment, materials and transportation expenses and other requirements are at the cost of the Hirer.

(b) Unless otherwise specified, the Hirer is responsible for the supply of all necessary craneage, labour and other handling equipment to offload, assemble, erect, dismantle and load the Equipment at the Location or in any other location.

4.2 Prior Inspection

(a) The Hirer agrees as between the Hirer and Affitto that the Hirer, on talking delivery of the Equipment, will accept the Equipment on an “as is” basis with all faults and defects (if any) and that the General Condition Report provided by Affitto shall be conclusive evidence of the state of the Equipment.

(b) The Equipment will be deemed to have been accepted as suitable for the Hirer’s requirements unless the Hirer has provided Affitto with written notification to the contrary within 36 hours of the delivery or collection of the Equipment. The failure to provide such notice will irrevocably constitute acceptance of the Equipment by the Hirer for all purposes of this Agreement and will bind the Hirer absolutely that the Equipment has been fully and unconditionally accepted by the Hirer for the purposes of this Agreement.

(c) The Hirer acknowledges that Affitto may acquire or will acquire the Equipment for the sole purpose of this Agreement. Accordingly, if the Hirer fails to accept the Equipment in accordance with this clause 4, the Hirer will pay Affitto as and by way of liquidated damages the sums the Hirer would have been liable to pay under this Agreement had the Hirer accepted the Equipment and then immediately returned them to the Affitto.

4.3 Installation, mobilisation and demobilisation

(a) If applicable, the Affitto will notify the Hirer prior to the Commencement Date as to whether the Equipment is to be installed, mobilised and de-mobilised by the Affitto or the Hirer

(b) All Operating Instructions will be supplied to the Hirer with the Equipment.

(c) If installation or delivery is to be undertaken by Affitto, delivery and installation charges may apply at Affitto’s discretion.

5. TITLE TO EQUIPMENT

The Hirer acknowledges that in all circumstances Affitto retains title to the Equipment (even if the Hirer goes into liquidation or becomes bankrupt during the Hire Period) and it is not deemed to be a fixture.

6. HIRER’S OBLIGATIONS

6.1 Service and Maintenance

The Hirer must, unless otherwise specified as the responsibility of Affitto in the Schedule:

(a) subject to clause 6.2, at all times ensure that the Equipment is serviced, maintained and stored in accordance with best practice, manufacturers recommendations, Operating Instructions and guidelines or other reasonable directions of Affitto from time to time and ensure that the Equipment is stored properly and in proper working order and condition and in good substantial repair;

(b) at the earlier of once per month or every 156 hours, repair and service the Equipment which shall include checking and if required, repairing or adjusting to a satisfactory condition fluid levels, electrical wiring, electrical switches, lights, leaks, vee belts, tyre/undercarriage wear, ground engaging tools (GET), bucket/tray;

(d) at the Hirer’s cost, repair general wear and tear to all tyres (measure in/measure out) and dispose of tyre carcasses;

(e) attend to all engine valve set adjustments as per manufacturer’s guidelines;

(f) complete weekly running sheets (in a form acceptable to Affitto) of the Equipment to be returned to Affitto on a periodic basis notified by Affitto to the Hirer during the Hire Period;

(g) the Hirer shall complete the manufacturer’s oil sampling analysis at every oil change period on all compartments in the Equipment and provide SOS sampling records;

(h) at its own expense supply all fuel, oil, lubricants and grease necessary for the operation, service and maintenance of the Equipment;

(i) promptly replace all parts which may from time to time become worn out, lost, stolen, compulsorily acquired, destroyed, seized, confiscated, damaged beyond repair or permanently rendered unfit for use by damage or obsolescence. All replacement parts will be the property of Affitto;

(j) at its own expense, service and keep the Equipment clean;

(k) must provide all fuel, oil, water and other consumables necessary for the operation of the Equipment;

(l) repair all tyre and track wear.

6.2 Affitto’s Servicing

(a) Unless specified in the Schedule, Affitto shall be responsible for all Major Repairs including the costs for such repairs, unless any such Major Repairs which may be required are caused either directly or indirectly by the Hirer as reasonably determined by Affitto in its sole discretion.

(b) Affitto reserves the right to take possession of the Equipment in the instance that the Hirer fails to comply with any conditions in clause 6.1 or if Affitto wishes to implement its own servicing or, if it decides, to undertake Major Repairs to the Equipment and the Hirer must promptly provide the Equipment to Affitto (or its agents or subcontractors) for such purpose.

6.3 Indemnity

The Hirer shall indemnify Affitto for any loss or damage (including loss of income or other consequential loss) caused either directly or indirectly to the Equipment, with respect to or arising from:

(a) the Hirer’s failure to comply with clause 6.1 and 6.2;

(b) the misuse of the Equipment or use of the Equipment contrary to the obligations of the Hirer under this Agreement;

(d) damage or wear to the Equipment caused by the Hirer’s usage of the Equipment, which in the opinion of Affitto, is abnormal or excessive.

6.4 Notice of damage

The Hirer must provide written notice as soon as practicable to Affitto in the event that there is any significant or serious damage or disrepair to the Equipment or the operation of the Equipment. Affitto also reserves the right to provide notice to the Hirer requiring the Hirer to repair or service the Equipment if, in Affitto’s reasonable opinion, the Equipment is damaged or may cause further damage or disrepair to the Equipment with further use.

6.5 General obligations

The Hirer must:

(a) use the Equipment in a skilful and proper manner and only for the purposes and within the capacity for which the Equipment was designed;

(b) unless otherwise specified in the Schedule, provide its own Ground Engaging Tools;

(c) accept full responsibility and liability for the safe-keeping of the Equipment and indemnify Affitto for all loss, theft or damage of the Equipment however caused and without limiting the generality of the foregoing, whether or not such loss, theft or damage is attributable to any abandonment of any Equipment, negligence, failure or omission of the Hirer;

(d) ensure that any person using the Equipment operates the Equipment safely and in accordance with the Operation Instructions and all relevant statutes, regulations and by-laws that apply to the Equipment;

(e) ensure that the Equipment is stored safely and securely and is protected from theft, seizure or damage;

(f) comply in all respects with all applicable laws, regulations, requirements and rules reasonably necessary for the safe and lawful operation of the Equipment, including the obtaining of any required permits or authorisations required for the use of the Equipment;

(g) not in any way part with possession of the whole or part of the Equipment, nor sell, assign, mortgage, pledge, sub-lease, lend, grant a ‘security interest’ in or otherwise deal with the whole or part of the Equipment without the express written consent of Affitto;

(h) inform Affitto immediately if any items or part of the Equipment are stolen, lost, destroyed or damaged;

(i) not remove or cover up any plates or other marks that Affitto may affix or cause to be affixed to the Equipment to indicate that the Equipment is the property of Affitto.

6.6 Records

(a) The Hirer must keep complete and proper records with respect to those obligations of the Hirer specified in clause 6 and provide such records to Affitto on demand.

(b) Affitto will provide to the Hirer all relevant copies of inspections of the Equipment and relevant certificates of the Equipment.

7. BREAKDOWN

Where the Equipment becomes unusable or unsafe to use in accordance with the Operation Instructions, the Hirer must:

(a) immediately stop using the Equipment;

(b) take all necessary steps to prevent injury to the Hirer or any other persons or property as a result of the condition of the Equipment;

(d) not repair or attempt to repair the Equipment without Affitto’s prior written approval.

8. AFFITTO’S OBLIGATIONS

Affitto shall:

(a) ensure that the Equipment, if required, remains licensed and registered during the Hire Period; and

(b) if applicable, ensure that the insurances specified in clause 9 are effected and maintained during the Hire Period.

9. INSURANCE

9.1 Affitto’s insurance

Unless otherwise specified in the Schedule, Affitto will effect and maintain in the name of Affitto the following insurances:

(a) Third party risks: insurance against all third party risks including liability for damage or injury of any kind to any property or person and also against other risks to the full extend required by law by a policy inuring for the benefit of Affitto;

Public risk: public risk insurance relating to the Equipment for an indemnity (including damage to property of any person) of not less than $20,000,000.00;

(c) Motor vehicle insurance and/or plant and equipment insurance as required by Affitto as specified in the Schedule at the required limit specified in the Schedule;

(d) Transit insurance: as required by Affitto as specified in the Schedule at the required limit specified in the Schedule;

(e) any other insurance Affitto requires the Hirer to take out and maintain or as required by law for the Hirer to take out and maintain.

9.2 The Hirer’s Insurance

The Hirer must take out and maintain full comprehensive motor vehicle insurance (at its sole cost), and must ensure that Affitto is listed as an interested party (as owner of the vehicle) on that policy.

9.3 Hirer’s Reimbursement

The Hirer must reimburse Affitto for the costs and expenses with respect to the same insurances specified in clause 9.1 on demand.

10. TERMINATION

10.1 Termination by Affitto

(a) Notwithstanding any other condition of this Agreement, and without prejudice to any other remedies Affitto may have against the Hirer, Affitto may terminate this Agreement at any time without notice:

(i) where the Hirer is subject to any winding up petition or order, appointment or receiver, official management, assignment, arrangement, or compromise for the benefit of creditors, an act of bankruptcy any action taken or threatened to be taken to place the Hirer in bankruptcy, a judgement which is unsatisfied or partly unsatisfied, a sequestration order, a writ or execution or where the Hirer ceases to carry on business, without notice;

(ii) where the Hirer breaches this Agreement (including, but not limited to, any requirement or obligation of the Hirer under clause 13) and the Hirer has failed to remedy that breach within 7 days of written notice being provided to the Hirer, such notice specifying the breach and requiring rectification of the breach;

(iii) where the Hirer breaches any other agreement between Affitto and the Hirer and the Hirer has failed to remedy that breach within 7 days of written notice being provided to the Hirer, such notice specifying the breach and requiring rectification of the breach;

(iv) where the Hirer fails to pay any amount payable to Affitto under this agreement within 5 days of the date that those monies become due and payable;

(v) the Hirer is convicted of a serious offence;

(vi) any judgment or process is entered against the Hirer and is not satisfied forthwith;

(vii) the Equipment is either misused (in the opinion of Affitto), abandoned, condemned, seized or appropriated by any lawful authority or person and not released within 21 days.

(b) Affitto may terminate this Agreement at any time and for any reason by providing at least 30 days’ notice in writing to the Hirer, provided that Affitto does not provide such notice during the Fixed Period.

10.2 Costs and expenses

The Hirer must, on demand, reimburse Affitto for all costs, charges, expenses, fees, disbursements (including all legal costs on an indemnity basis) paid or incurred by Affitto of or incidental to:

(a) any breach, default or repudiation of this Agreement by the Hirer; and

(b) the exercise or attempted exercise of any right, power, privilege, authority or remedy of Affitto under or by virtue of this Agreement, including all amounts incurred in preparation and service of a notice under this Agreement and in repossessing the Equipment from the Hirer under the terms of this Agreement and in enforcing this Agreement generally.

10.3 Return of Equipment

(a) Upon the expiration or termination of this Agreement pursuant to this Agreement, the Hirer must, subject to any alternative

arrangements agreed between the parties, immediately deliver the Equipment to Affitto at the Hirers expense and in the same condition as the Equipment was originally delivered to the Hirer.

(b) If the Equipment is not returned to Affitto within a period of time as notified to the Hirer by Affitto, Affitto shall be entitled to take possession of the Equipment without notice for which purpose the Hirer hereby authorises Affitto, its servants and agents to enter upon any land or premises of the Hirer or under its control upon which the Equipment is situated at the time of termination to search such premises and to remove the Equipment therefrom.

(i) the Hirer shall remain liable to pay the Hire Fee and any Additional Charges up to and including the date the Equipment is returned to Affitto;

(ii) the Equipment must be returned to a location nominated by Affitto, in its sole discretion.

(d) Upon the return of the Equipment under this clause 10.3, if Affitto arranges any repairs or maintenance to the Equipment which the Hirer was otherwise required to undertake in accordance with this Agreement, the Hirer acknowledges and agrees that:

(i) Affitto may arrange such repairs itself; and

(ii) the Hirer must reimburse Affitto for any costs it incurred, in accordance with Affitto’s payment terms and including any Additional Charges which may apply.

10.4 Termination by the Hirer

Subject to clause 10.3, the Hirer may terminate this Agreement at any time and for any reason by providing at least 30 days’ notice in writing to Affitto, provided that the Hirer does not provide such notice during the Fixed Period.

11. INDEMNITIES AND EXCLUSION OF LIABILITIES

11.1 Indemnity

The Hirer shall indemnify Affitto and Affitto’s directors, agents, servants, sub-agents, subcontractors and employees against all liability, loss, claims, actions, suits, demands, costs, expenses, including all legal costs and expenses in any way arising out of any or all of the following:

(a) the use of the Equipment by the Hirer during the Hire Period irrespective of whether caused by the negligence of the Hirer, its servants or agents or by negligence of any other person whatsoever or howsoever arising out of the condition of the Equipment or the use to which it is put;

(b) the repair and maintenance, storage or possession of the Equipment;

(d) the delivery, selection, purchase, acceptance or rejection, ownership, repair or operation of the Equipment and by whomever used or operated (other than Affitto);

(e) the seizure, distress, execution or other legal process, confiscation or forfeiture of the Equipment.

11.2 Survival of indemnities

The indemnities specified in clause 11.1 and any other indemnities provided in this Agreement will continue in full force and effect notwithstanding the termination or expiration of this Agreement.

12. EXCLUSION OF LIABILITIES, WARRANTIES AND CONDITIONS

To the extent that the Commonwealth, State and Territorial laws permit:

(a) all express and implied conditions, terms, warranties and representations which are not expressly contained in this Agreement are hereby excluded;

(b) any warranty, condition, description or representation, whether express or implied, as to the description, state, quality, merchantability or fitness of the Equipment for the purpose for which it is hired is hereby excluded; and

(c) Affitto shall not be responsible or liable to the Hirer, whether on grounds of breach of contract, contractual duty or negligence, for any loss or damage that the Hirer may directly or indirectly sustain or suffer arising from defects in or miscalculation, breakdown or failure of performance of the Equipment, and the Hirer hereby exonerates and releases Affitto from all claims and

demands in respect thereof and for all and any indirect losses or special damages whatsoever or howsoever arising.

13. PPSA

13.1 For the purposes of this clause 13, “PPSA” means the Personal Property Securities Act 2009 (Cth) and the Personal Property Securities Regulations 2010 (Cth), as amended from time to time.

13.3 If the Equipment may be subject to the PPSA, then Affitto may effect and maintain registration of a ‘security interest’ (as that term is defined in the PPSA) in the Equipment and the proceeds arising in respect of any dealing in the Equipment. The Hirer must do any thing (such as obtaining consents and signing documents) which Affitto requires for the purpose of:

(a) creating and registering Affitto’s security interest including (but not limited to) providing details of any item of collateral sufficient to complete registration of the security interest in accordance with the PPSA;

(b) ensuring that Affitto’s security interest is and remains enforceable, perfected and otherwise effective under the PPSA;

(c) enabling Affitto to gain first priority (or any other priority agreed to by Affitto in writing) for its security interest;

(d) enabling Affitto to exercise its rights in connection with the security interest or the PPSA.

13.4 Affitto’s rights under this Agreement are in addition to and not in substitution for Affitto’s rights under any other law (including the PPSA) and Affitto may choose whether to exercise rights under this Agreement, and/or under such other law, in its discretion. For the avoidance of doubt, any security interest that Affitto may have in the Equipment will attach to ‘proceeds’ in accordance with the PPSA.

13.5 To the extent that Chapter 4 of the PPSA applies to any security interest under this Agreement, the following provisions of the PPSA are “contracted out” of in accordance with section 115 of the PPSA and shall not apply: sections 95, 96, 121(4), 125, 130, 129(2), 129(3), 132(3)(d), 132(4), 135, 142 and 142.

13.6 In addition to any rights conferred upon Affitto under the PPSA, the Hirer agrees and acknowledges that in addition to those rights, Affitto shall, if the Hirer is in default of this Agreement, have the right to seize, purchase, take possession or apparent possession, retain, deal with or dispose of any goods (including the Equipment), not only under those provisions under the PPSA but also, as additional and independent rights under this Agreement. The Hirer agrees that Affitto may exercise any of its rights under this clause 13.6 in any way it deems fit including (in respect of dealing and disposal) by private or public sale, lease or licence.

13.7 Pursuant to section 157(3) of the PPSA, the Hirer waives its rights to receive a verification statement in relation to registration events in respect of commercial property pursuant to section 157(1) of the PPSA.

13.8 Affitto and the Hirer agree not to disclose information of the kind that can be requested under section 257(1) of the PPSA.

13.9 The Hirer must not dispose or purport to dispose of, or create or purport to create or permit to be created any ‘security interest’ in the Equipment without the express written consent of Affitto.

13.10 The Hirer must not lease, hire, sub hire, bail, lend or part with possession of the Equipment (Sub-hire) without the express written consent of Affitto, in its absolute discretion. In the instance that Affitto consents to a Sub-hire in writing, the Sub-hire must be in writing and in a form acceptable to Affitto and must be expressed to be subject to the rights of Affitto under this Agreement. The Hirer must not vary the Sub-hire arrangement or terms without Affitto’s consent in writing.

13.11 The Hirer must ensure that the Hirer is provided at all times (and where the Hirer requests) with up to date information about the Sub-hire including the identity of the sub-hirer, the terms of and state of accounts and payment under the Sub-hire and the location and condition of the Equipment.

13.12 The Hirer must take all steps including registration under the PPSA, as may be required, to:

(a) ensure that any security interest arising under or in respect of the Sub-hire is enforceable, perfected and otherwise effective under the PPSA;

(b) enabling the Hirer to gain (subject always to the rights of Affitto) first priority (or any other priority agreed by Affitto in writing) for the security interest;

13.13 To assure the Hirer’s performance of its obligations under this clause 13 and this Agreement, the Hirer hereby gives to Affitto an irrevocable power of attorney to do anything Affitto considers the Hirer should do under this Agreement. Affitto may recover from the Hirer the cost of doing anything under this clause 13, including registration fees.

14. GUARANTEE

14.1 In consideration of Affitto hiring the Equipment to the Hirer, the Guarantor (or where there more than one Guarantor, each of the Guarantors):

(a) unconditionally and irrevocably guarantees and continues to guarantee to Affitto that the Hirer will:

(i) pay the Hire Fee, Additional Charges and all other amounts to be paid under this Agreement in accordance with the terms of this Agreement; and

(ii) comply with all the other terms of this Agreement on its part to be complied with; and

(b) as separate undertakings:

(i) agrees to indemnify and keep indemnified Affitto against any liability, loss, claims, actions, suits, demands, costs, expenses, including all legal costs and expenses, suffered or incurred by Affitto arising from or in connection with any breach of this Agreement; and

(ii) as principal debtor, agrees to pay to the Hirer on demand an amount equal to any liability, loss, claims, actions, suits, demands, costs, expenses referred to in the preceding paragraph (b)(i).

14.2 The guarantee and indemnity specified in clause 14.1 continues in force until the Hirer complies with all of its obligations under this Agreement.

14.3 The Guarantor agrees to pay to Affitto on demand Affitto’s costs and expenses, including legal costs, relating to any action taken under this guarantee and indemnity.

15. CHARGE

Despite anything to the contrary contained herein or any other rights which Affitto may have, the Hirer and each of the Guarantors charge their interest in any property in the name of the Hirer or the Guarantor with the due payment of any monies and interest owing to Affitto by the Hirer, and in the case of real property consents to Affitto registering an absolute caveat against the interest in any such property or properties to further secure the repayment of those monies and interest payable to Affitto pursuant to this Agreement.

16. GOODS AND SERVICES TAX

(a) In this clause the expressions “adjustment note”, “consideration”, “GST”, “input tax credit”, “supply”, “tax invoice”, “recipient” and “taxable supply” have the meaning given to those expressions in the A New Tax System (Goods and Services Tax) Act 1999.

(b) Unless otherwise stated, all amounts payable or any consideration to be provided under this Agreement are exclusive of GST.

(c) Notwithstanding any other provision in this Agreement, if GST is imposed on any supply made under the Agreement, the supplier may in addition to the consideration, varied in accordance with clause 16(d), recover an amount equal to the consideration multiplied by the current GST rate. Payment of the additional amount will be made at the same time as payment for the taxable supply subject to the supplier delivering a valid tax invoice to the recipient at or before the time of payment.

(d) If:

(i) a variation in the rate of any GST is associated with the abolition or reduction of any tax, duty, excise or statutory charge which directly or indirectly affects the costs of a supplier in respect of any supply made under the Agreement, the consideration payable for the supply will be varied so that the supplier’s net financial position in respect of the supply remains the same;

(ii) any contract entered into by a party to the Agreement with a third party involves supplies being made, the cost of which will affect the cost of any supplies made under or in connection with this Agreement, that contract must include a clause in equivalent terms to clause 16(d)(i) of the Agreement.

(e) If this Agreement requires a party to reimburse or indemnify the other party for any expense, loss or outgoings, including the Reimbursable Expenses (“expense”) the amount required to be paid b the first party will be the sum of:

(i) the amount of the expense net of input tax credits (if any) to which the other party is entitled in respect of the expense (“net amount”); and

(ii) if the other party’s recovery from the first party is a taxable supply, any GST payable in respect of that supply.

(f) If a GST inclusive price is charged or varied, the recipient can withhold payment of the GST until the supplier provides a valid tax invoice or adjustment note as appropriate.

16. SPECIAL CONDITIONS

Any special conditions specified in the Schedule or otherwise as agreed between the parties form part of this Agreement. In the event of any inconsistency between the special conditions and the provisions in this Agreement, the special conditions shall prevail.

17. SEVERABILITY

In the event of any part of this Agreement becoming void or unenforceable, whether due to the provision of any statute or otherwise, then that part shall be severed from this Agreement, to the intent that all parts that shall not be or become void or unenforceable shall remain in full force and effect and be unaffected by any such severance.

18. COUNTERPARTS

(a) This Agreement may be executed in any number of counterparts, all of which (taken together) constitute one instrument. A party may execute this Agreement by signing any counterpart.

(b) A party who has executed a counterpart of this Agreement may exchange that counterpart with another party by faxing it or otherwise providing a copy to that other party.

19. ENTIRE AGREEMENT

This Agreement issued to the Hirer together with the Schedule and any annexure comprises the entire agreement between the parties.

20. GOVERNING LAW AND JURISDICTION

This Agreement is governed by the laws of Western Australia and the Commonwealth of Australia and each party irrevocably submits to the non-exclusive jurisdiction of the Courts of Western Australia.

21. VARIATION

(a) Affitto may at any time vary the Agreement by providing the Hirer with not less than 30 days written notice of its intention to do so, in which instance the Hirer may either elect to terminate this Agreement on not less than 30 days written notice to Affitto of the same or if no such notice is given by the Hirer then this Agreement shall continue as so varied by Affitto. Any other variation of this Agreement must be agreed to in writing by Affitto and the Hirer.

(b) For the avoidance of doubt, the Hirer acknowledges and agrees that if the Hirer fails to immediately return the Equipment following the expiry of the 30 day notice period, Affitto may continue to charge the Hire Fee, as varied by Affitto

Terms and Conditions

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