CAP FENCING- TERMS AND CONDITIONS FOR

TEMPORARY POOL FENCE HIRE AGREEMENT

 

    1.     Application

These Terms and Conditions (Hire Terms) apply to all supplies of Temporary Pool Fencing by Cap Fencing.

    2.     Definitions

Approvals” means all approvals required by any Authority to permit the full and proper performance of Cap Fencing’s obligations under these Hire Terms;

Authority” includes any government or governmental, administrative or judicial body;

Cap Fencing” means Cap Fencing Pty Ltd ABN 33 123 901 995;

Claim” includes direct and indirect, actual, contingent, present or future claims, demands, actions, suits and proceedings for any remedy of whatever nature and however arising;

Confidential Information” means information, in whatever form, relating to any business, products, markets, operations, processes, techniques, technology, forecasts, strategies or any other matter;

Contract” means a contract resulting from the acceptance of an Order by Cap Fencing;

Corporations Act” means Corporations Act 2001 (Cth);

Customer” means the customer set out in any quotation or, if none, whose property the fencing is delivered to;

Delivery Address” means the place for delivery of Temporary Pool Fencing;

Delivery Date” means the date for delivery of Temporary Pool Fencing;

“GST” has the same meaning as in the GST Law;

“GST Law” means A New Tax System (Goods and Services Tax) Act 1999 (Cth) and associated laws;

“Hire Completion Date” means the date for return of Temporary Pool Fencing in a Contract to Cap Fencing;

“Hire Fee” means Cap Fencing’s charges plus GST;

Holding Over” means any term beyond the Initial Hire Term where the Temporary Pool Fencing remains at the Delivery Address with the agreement of Cap Fencing;

“Initial Hire Term” means the term starting on the Delivery Date and finishing on the Hire Completion Date;

Initial Hire Fee” is the Price for the Initial Hire Term;

Insolvency Event” means any of the following, or any analogous, events: (a) the Customer disposes of its assets, operations or business other than in the ordinary course of business; (b) the Customer ceases, or threatens to cease, carrying on business; (c) the Customer is unable to pay the Customer’s debts as they fall due; (d) any step is taken by a creditor to take possession or dispose of the Customer’s assets, operations or business; (e) any step is taken for the Customer to enter into any arrangement or compromise with creditors; or (f) any step is taken to appoint an administrator, receiver, manager, trustee, provisional liquidator or liquidator of any part of the Customer’s assets, operations or business;

Intellectual Property Rights” means any rights in confidential information, copyright, trademarks, service marks, designs, patents, circuit layouts, plant varieties, business names, domain names, inventions, trade secrets or other results of intellectual activity;

Liability” means any loss, liability, cost, payment, damages, debt or expense;

Order” means any written, electronic or verbal order for Temporary Pool Fencing;

Personnel” means a family member, employee, servant, contractor, subcontractor, agent, partner, director or officer of a Party;

PPSA” means the Personal Property Securities Act 2009 (Cth);

Price” means the price quoted, or if not quoted, Cap Fencing’s current Temporary Pool Fencing prices; and

Temporary Pool Fencing” means the temporary pool fence, any parts or accessories, and any delivery, assembly or removal supplied by Cap Fencing under the Contract.

    3.                 Request for Quote

3.1              The Customer, or authorized person, may request a Temporary Pool Fencing quote from Cap Fencing.

3.2              All information, instructions, reports, drawings, plans, specifications, property details and relevant facts must be provided at the time any quotation is requested.

3.3              Any quotation provided by Cap Fencing does not constitute an offer to supply.

3.4              Unless otherwise stated, any quotation will remain valid for 30 days provided that Cap Fencing may withdraw or vary it prior to acceptance.

    4.     Contract

4.1              A Customer may make an Order for Temporary Pool Fencing orally, electronically, in writing or by making payment of a quoted Initial Hire Fee. For an Order to be acceptable to Cap Fencing, Cap Fencing may require it in a particular form or for it to contain all information reasonably required by Cap Fencing. Such information may include the completion of 2 step verification procedures, proof of identification, email, telephone or address details, or provision of credit card or other personal details. No Order will be binding on Cap Fencing unless Cap Fencing accepts it.

4.2              Any Order will constitute acceptance of, and agreement to, these Hire Terms by the Customer.

4.3              If Cap Fencing accepts an Order, the Parties will have created a binding Contract and Cap Fencing will supply the Temporary Pool Fencing, and the Customer must pay the Price in accordance with the Contract (including these Hire Terms), but the Contract will be subject to: (a) the availability of materials and labour necessary to supply the Temporary Pool Fencing; and (b) (unless otherwise stated) the Customer, or authorized person, making full payment of the Initial Hire Fee.

4.4              A binding Contract will also be deemed to have formed, incorporating these Hire Terms, if payment of an Initial Hire Fee is made and the Temporary Pool Fencing is delivered to the Delivery Address.

4.5              The Customer can’t cancel an Order or Contract and must pay to Cap Fencing any costs, loss or expense, including for loss of income, incurred by Cap Fencing resulting from the Customer purporting to do so.

4.6              If Cap Fencing considers any information, instructions, reports, drawings, plans, specifications, properties or facts are insufficient to enable Cap Fencing to supply the Temporary Pool Fencing, the Customer must, at its cost, provide such further information as Cap Fencing considers reasonably necessary.

4.7              Cap Fencing can rely on the accuracy of any information, instructions, reports, drawings, plans, specifications, properties and facts provided to it.

4.8              If there are any errors in any information, instructions, reports, drawings, plans, specifications, properties or facts provided by the Customer, Cap Fencing can vary the Price to compensate for any additional time or equipment required to provide the Temporary Pool Fencing.

4.9              The Customer will be responsible for the quantities in any Order and Cap Fencing will not be liable to the Customer if more or less of the Temporary Pool Fencing is ordered than for the intended purpose.

4.10            Cap Fencing may cancel a Contract at any time prior to delivery of the Temporary Pool Fencing with no liability other than to repay the Price already paid.

    5.                 Price

5.1              Unless otherwise stipulated, Cap Fencing will invoice and payment of the Initial Hire Fee must be made before the Temporary Pool Fencing is delivered.

5.2              Unless otherwise stipulated, the Price quoted is inclusive of GST, delivery and (if assembly assistance is provided) labour charges.

5.3              The Customer must not withhold, make deductions from, or set-off, payment of any money owed to Cap Fencing for any reason.

5.4              Cap Fencing may charge, in addition to the Price, any other fees or charges that Cap Fencing reasonably incurs in the provision of the Temporary Pool Fencing and notifies to the Customer from time to time.

5.5              If the Contract ends before the end of the Initial Hire Term, no refund of any part of the Initial Hire Fee will be payable.

    6.                 Delivery of Temporary Pool Fencing

6.1              If Cap Fencing is to deliver or assist with assembly of Temporary Pool Fencing, Cap Fencing: (a) will charge for such as quoted or otherwise in Cap Fencing’s price list or, for a third party cost, the cost incurred by Cap Fencing; (b) will endeavor to do so on the Delivery Date; (c) may leave or assemble the Temporary Pool Fencing at the Delivery Address whether or not any person is present to accept delivery; and (d) may charge further delivery charges if the Customer doesn’t receive delivery at the Delivery Address on the Delivery Date or as otherwise agreed.

6.2              Unless stipulated otherwise, Cap Fencing will only deliver or assist with assembly of Temporary Pool Fencing during Cap Fencing’s usual business hours.

6.3              Cap Fencing may deliver or assist with assembly of Temporary Pool Fencing in separate instalments.

6.4              The Customer or their Personnel must be at the Delivery Address on the Delivery Date, but Cap Fencing does not need to obtain a signed acknowledgment from any person at the Delivery Address.

6.5              Cap Fencing may deliver Temporary Pool Fencing even if there is nobody at the Delivery Address. Cap Fencing isn’t liable for loss suffered by the Customer after delivery to the Delivery Address.

6.6              The Customer must provide safe access for Cap Fencing and Cap Fencing may refuse to deliver or assist with assembly of Temporary Pool Fencing if Cap Fencing considers it would be unsafe to do so.

6.7              The signature on a delivery docket from someone believed by Cap Fencing to be authorised by the Customer will be prima facie evidence the Temporary Pool Fencing delivered complies with the Contract.

6.8              The Customer must inspect any Temporary Pool Fencing immediately on delivery. If assistance with assembly is provided, the Customer must ensure that the Customer completes the installation of the equipment and any necessary modifications to the surrounding areas they require. Cap Fencing is not an installation contractor and is not responsible for ensuring that the Temporary Pool Fencing has been completely assembled and installed so as to meet any statutory or other requirements of the Customer.

6.9              Cap Fencing is not liable for any failure or delay in delivery or assembly of Temporary Pool Fencing occasioned by any strike, lockout, shortage of stock, shortage or lack of labor, delays in transit, fire, flood, hostility, civil commotion or other causes whether or not beyond the control of Cap Fencing.

    7.                 Risk

7.1              The risk will pass to the Customer, and the Customer will have accepted, the Temporary Pool Fencing immediately once the Temporary Pool Fencing is assembled or delivered to the Delivery Address.

7.2              If the Customer collects the Temporary Pool Fencing, the risk will pass to the Customer, and the Customer will have accepted, the Temporary Pool Fencing immediately once the Temporary Pool Fencing is placed on the Customer’s or their Personnel’s vehicle.

    8.                 Title and Collection

8.1              Cap Fencing remains the owner of the Temporary Pool Fencing and retains full right and title to it.

8.2              The Customer may use the Temporary Pool Fencing during the Initial Hire Term and any Holding Over subject to: (a) Continued compliance with the Contract; (b) Payment of the Initial Hire Fee and Price payable for any Holding Over; and (c) Cap Fencing’s consent to any applicable Holding Over.

8.3              Unless clause 8.2 applies to any Holding Over, any time after the Hire Completion Date Cap Fencing can dissasemble and remove the Temporary Pool Fencing.

8.4              The Customer: (a) is only a fiduciary bailee of the Temporary Pool Fencing; (b) must ensure the Temporary Pool Fencing is kept separate and identifiable from other chattels; (c) must not grant an interest in the Temporary Pool Fencing to a third party; (d) (upon breach of Contract by the Customer or after the Initial Hire Term) must return or make available for collection, the Temporary Pool Fencing on request and authorises Cap Fencing to enter any land where it is located and take possession of the Temporary Pool Fencing.

8.5              Cap Fencing may repossess, retain, deal with or sell the Temporary Pool Fencing at its discretion.

8.6      Cap Fencing may, for the purposes of clause 8.3, enter any land and remove the Temporary Pool Fencing including by detaching it from any property or land. The Customer indemnifies Cap Fencing from any loss or damage suffered by Cap Fencing or claims brought against Cap Fencing arising out of Cap Fencing retaking possession of the Temporary Pool Fencing.

    9.         Security for Payments

9.1              The Customer must pay the Price and any other amounts payable to Cap Fencing on the date specified in the Contract or, if not specified, within seven days of invoice (the Due Date), even if before the Delivery Date.

9.2              If the Customer does not pay Cap Fencing by the Due Date, Cap Fencing can; (a) charge interest on the monies due at 5%pa above the Reserve Bank of Australia Cash Rate, calculated daily and compounded monthly from the Due Date until paid; (b) suspend the supply or retake possession of the Temporary Pool Fencing.

9.3              Cap Fencing may lodge caveats over the Customer’s property, register Cap Fencing’s interests, and take any other action to secure Cap Fencing’s rights.

9.4              On request, the Customer must sign any documents, provide any information and do anything else reasonably required by Cap Fencing to ensure that Cap Fencing’s interests are able to be registered.

9.5              The Customer fully indemnifies Cap Fencing for all loss due to dishonored payments (including bank fees), and legal, debt recovery, agent or other expenses incurred with any enforcement or recovery actions (or attempts) taken by Cap Fencing under these Hire Terms.

9.6              Cap Fencing may use any credit card details, cheque, deposit, cash or other security from the Customer in payment of any of the Customer’s liabilities under a Contract. By giving Cap Fencing its credit card details, the Customer permits Cap Fencing to deduct monies from that credit card for any outstanding money or, loss or damage to the Temporary Pool Fencing.

    10.              What the Customer Must Do

10.1            The Customer Must: (a) ensure the proper installation of Temporary Pool Fencing (even if Cap Fencing assists with assembly); (b) maintain the Temporary Pool Fencing in good working order and repair (except normal wear and tear); (c) permit Cap Fencing to erect a sign at the Delivery Address for the Initial Hire Term; (d) comply with any recommendations in relation to assembly and use of the Temporary Pool Fencing; (e) only use the Temporary Pool Fencing in a proper manner; (f) keep the Temporary Pool Fencing at the Delivery Address except with Cap Fencing’s written consent; (g) keep the Temporary Pool Fencing under the personal control of the Customer or its Personnel; (h) notify Cap Fencing immediately if the Temporary Pool Fencing is lost, stolen or damaged; and (i) pay for the replacement or repair of any damaged, lost, stolen or destroyed Temporary Pool Fencing.

    11.              What the Customer Must Not Do

11.1            The Customer must not: (a) alter, add to or install anything on the Temporary Pool Fencing without Cap Fencing’s consent; (b) cause or allow the Temporary Pool Fencing to become a fixture to land; (c) allow any security interest over the Temporary Pool Fencing; or (d) alter or cover up any insignia, number, mark or identifying plate on the Temporary Pool Fencing.

    12.              Force Majeure

Cap Fencing is not liable for any failure or delay in performing its obligations if the failure or delay is due to any cause beyond Cap Fencing’s reasonable control. If such circumstances continue for 14 days Cap Fencing may terminate any affected Contract without penalty.

    13.              Confidential Information and IP

13.1            The Customer will not use, or disclose, any Confidential Information disclosed to the Customer.

13.2            All Intellectual Property Rights and Confidential Information owned by Cap Fencing will remain Cap Fencing’s and is not assigned to the Customer.

13.3            If Cap Fencing supplies anything containing Intellectual Property Rights or Confidential Information to the Customer, Cap Fencing grants a non-exclusive, non-transferrable, right to the Customer solely so the Customer can use the Temporary Pool Fencing.

13.4            The Customer warrants that Cap Fencing’s use of anything supplied by the Customer will not infringe the Intellectual Property Rights of any other party.

    14.              Approvals

If an Approval is required to use the Temporary Pool Fencing, the Customer must obtain it at its expense.

    15.              Warranties

15.1            The Temporary Pool Fencing is NOT a complete barrier system that meets the standards under the Swimming Pools Act 1992 (NSW).

15.2            Only the equipment comprising the Temporary Pool Fencing, on collection, delivery or assembly, is structurally and dimensionally suitable for meeting the Swimming Pools Act 1992 (NSW) standards. This warranty may immediately cease if: (a) a change in legislation, regulations, standards or rules make the Temporary Pool Fencing no longer be compliant; or (b) (due to it being only temporary equipment) the length of time or amount or nature of use causes undue wear and tear of the Temporary Pool Fencing or for it to degrade, come apart, or cease to function properly; or (c) the Temporary Pool Fencing is altered, tampered with, or changed without Cap Fencing’s explicit consent.

15.3            Cap Fencing: (a) does not warrant the Temporary Pool Fencing meets the Swimming Pools Act 1992 (NSW) standards as it is not responsible for installation and has no control over factors such as surrounding areas and ground surface and conditions, even if they are apparent or made known prior to delivery or assembly; (b) does not warrant the Temporary Pool Fencing is fit for any other purpose, whether or not made known to Cap Fencing or any member of Cap Fencing’s Personnel; and (c) excludes all other conditions and warranties except those that cannot be excluded by law.

    16.              Liability

16.1            Cap Fencing’s liability is limited to; (a) arranging to replace, repair, or resupply the Temporary Pool Fencing; or (b) (for any Liability or Claim) the Price paid under the Contract(s) giving rise to such liability.

16.2            Cap Fencing is not liable for any indirect or consequential loss even if is in the reasonable contemplation of the Parties (including loss of profits, revenue, production, business, opportunity, access to markets, goodwill, reputation, publicity, or use) or any remote, abnormal or unforeseeable loss.

16.3            The Liability limiations do not apply: (a) where personal injury or death is directly caused by Cap Fencing; or (b) in the case of fraud.

16.4            Each Party must mitigate any loss it suffers.

    17.              Release and Indemnity

The Customer indemnifies Cap Fencing and Cap Fencing’s Personnel from Liability or Claims in relation to: (a) the accuracy of information provided by the Customer or its Personnel to Cap Fencing; (b) the Customer’s breach of Contract; (c) the negligence or willful misconduct of the Customer or its Personnel; (d) Cap Fencing or its Personnel delivering Temporary Pool Fencing in accordance with the Customer’s instructions; (e) Cap Fencing or its Personnel entering the Delivery Address; (f) damage to property during any delivery of Temporary Pool Fencing not due to Cap Fencing’s gross negligence; (g) Temporary Pool Fencing not being fit for a particular purpose; (h) any tests or assessments in relation to the Temporary Pool Fencing; (i) the Customer or its Personnel causing delay; (j) resupply of Temporary Pool Fencing, or rework, as a result of actions or omissions of the Customer or any third party; (k) the Customer or its Personnel not accepting delivery; and (l) the Customer or its Personnel purporting to cancel any Order or Contract.

    18.              Termination

Cap Fencing may immediately terminate, or suspend, any Contract and the Customer must immediately pay all money owed to Cap Fencing if: (a) the Customer breaches the Contract and does not remedy the breach within 7 days of receiving a notice from Cap Fencing; (b) a Customer’s breach of Contract can’t be remedied; (c) the Customer ceases to occupy the Delivery Address; or (d) an Insolvency Event occurs.

    19.              Miscellaneous

(a)                                   The Parties agree: (a) the parties are contractors and nothing else; (b) amendments and waivers must be express, agreed and in writing; (c) Cap Fencing’s rights under a Contract do not exclude any other rights; (d) the actions of persons authorized by the Customer will bind the Customer; (e) if any provision is unenforceable, the provision will be severed; (f) the Customer must notify Cap Fencing if there is a change in control (as understood in the Corporations Act) of the Customer; (g) Cap Fencing may assign any rights to any third party but the Customer may only assign any rights with Cap Fencing’s consent.

19.2            In these Hire Terms: (a) the headings don’t affect interpretation; (b) the singular includes the plural and vice versa; (c) other grammatical forms of defined words have a corresponding meaning; (d) documents include the documents as novated, altered, supplemented or replaced; (e) a Party includes the Party’s executors, administrators, heirs, successors in title, permitted assigns and substitutes; (f) a person includes any legal entity; (h) a reference to a law includes other instruments under the law and any consolidations, amendments, re-enactments or replacements; (i) a word or expression defined in the Corporations Act has the meaning as it is in the Corporations Act; (j) the meaning of general words is not limited by specific examples introduced by “including”, “for example” or similar expressions; (k) any obligation on two or more Parties binds those Parties jointly and severally; (l) undertakings not to do something will include an undertaking not to permit or suffer the doing of that act or thing; (m) a rule of construction does not disadvantage a Party because the Party was responsible for the preparation of these Hire Terms; and (n) if a day which an event must occur is not a business day, the next business day will apply.