This Part B is to be read with the separate Part A and both comprise the entire Agreement between you and us. The meaning of certain words and phrases are set out in the Dictionary at the end of these Terms and Conditions. Any Special Conditions that apply will be set out in Section 6 of Part A. Any additional Schedules or Annexures will be attached to Part A only if applicable. 1. COMMENCEMENT 1.1 This Agreement commences on the Commencement Date. 1.2 Any prepayment of money by you to us, or the delivery of the Goods to you, before the Commencement Date is merely conditional. 2. DELIVERY OF THE GOODS 2.1 It is your obligation to obtain delivery of the Goods. You must notify us if you have not taken delivery of the Goods within 7 days of the Commencement Date. 2.2 If you take delivery of the Goods before the Commencement Date, you do so at your own risk. 2.3 If you decide not to proceed with this Agreement after taking delivery of the Goods, you may be liable to the Manufacturer or Supplier of the Goods if you do not return or purchase them. 3. OWNERSHIP OF THE GOODS 3.1 On the Commencement Date we will own the Goods and you only have a right to use them under this Agreement. 3.2 Your possession, keeping, use or operation of the Goods is at your own risk. 4. POSSESSION AND USE OF THE GOODS 4.1 You may only use the Goods for business purposes. 4.2 You must: (a) Keep the Goods in good order and repair (reasonable wear and tear excepted); (b) Use, operate, service and maintain the Goods properly and in accordance with the Supplier s and/or Manufacturer s recommendations; (c) Keep the Goods in your possession or control unless we agree in writing otherwise; (d) Advise us of the location of the Goods if we reasonably ask; (e) Notify us immediately if the Goods are lost, stolen or damaged beyond economic repair; (f) Comply with all relevant laws and regulations relating to the possession, keeping, use, operation or licensing of the Goods; and (g) Allow us to enter any premises under your control, upon us giving you reasonable notice, to inspect or test the Goods. 4.3 You must not: (a) Alter or make any addition to the Goods without our consent in writing; (b) Use the Goods for any purpose other than for which they were designed; (c) Sell, dispose of, sub-hire or sub-lease, part with possession of or encumber the Goods, without our consent in writing; or (d) Allow the Goods to become a fixture to land. 4.4 If you sell or dispose of the Goods in breach of this Agreement, we are entitled to the proceeds of the sale or disposal of the Goods and you hold those proceeds and the rights to them on trust for us. 4.5 During the Term of the Agreement, we allow you to have the benefit of any Supplier, Manufacturer or statutory warranty in relation to the Goods. 5. SUB-HIRE OR SUB-LEASE OF THE GOODS 5.1 You may only sub-hire or sub-lease the Goods to a third party if we consent in writing. 5.2 If we consent to you sub-leasing or sub-hiring the Goods to a third party: (a) You must register a Security Interest on the PPSR in respect of the sub-hire or sub-lease of the Goods where the sub-hire or sub-lease is for an indefinite period or a period greater than 12 months and otherwise do all things reasonably necessary to obtain the highest ranking priority possible in respect of your Security Interest and to reduce the risk of another person acquiring an interest free of such Security Interest; (b) You must not allow the sub-hirer or sub-lessee to sell, dispose of, further sub-hire or sub-lease, part with possession of, grant or permit to exist any Security Interest in the Goods in favour of a third party or otherwise encumber the Goods, without your consent in writing; (c) You must indemnify us and keep us indemnified against any loss, claim, liability, damage, cost or expense we may suffer arising from the sub-hire or sub-lease (except to the extent caused or contributed to by our fraud, gross negligence or wilful misconduct); (d) You must promptly do all things reasonably necessary to protect your rights under the sub-hire or sub-lease and our rights under this Agreement if any sub-hirer or sublessee breaches any provision of the sub-hire or sub-lease; (e) You must not, without our consent in writing, sell, assign or otherwise deal with any of your rights in respect of the sub-hire or sub-lease, or grant a Security Interest to any person other than us in any of your rights in respect of the sub-hire or sub-lease; and (f) If reasonably requested by us, you must promptly give us all original documents relating to the sub-hire or sublease. 5.3 You irrevocably appoint us and each of our officers and managers jointly and severally as your attorneys with the power to do anything which you are able to do under any sub-hire or sub-lease in relation to the Goods. 6. RENTAL PAYMENTS 6.1 If the Frequency of Monthly Usage Charges is monthly in advance, you must pay us: (a) The first Minimum Usage Charge, the Documentation and Establishment Fee and the PPSR Registration and Search Fee on the Commencement Date; (b) The subsequent Monthly Usage Charges at monthly intervals from the Commencement Date until the expiry of the Initial Term; and (c) If the Specified Usage for a month is exceeded, we will send you an invoice setting out the Excess Usage Charge for that applicable month. Any such Excess Usage Charge will be invoiced to you and payable to us in the following month as applicable; and For the avoidance of doubt, it is acknowledged that the Minimum Usage Charge for each month is payable for each month whether or not you have achieved the Agreed Minimum Use Per Month for that month. 6.2 All Monthly Usage Charges are to be paid by direct debit unless we agree otherwise. 6.3 If a Monthly Usage Charge is payable on a day that is not a Business Day, then it is payable on the first Business Day following that day. 6.4 Your obligation to pay us the Monthly Usage Charges under this Agreement is absolute and unconditional and you must not exercise or seek to exercise any right or claim to withhold payment or claim any deduction or set-off. 6.5 You must continue to pay us the Monthly Usage Charges despite: (a) Your failure to take delivery of the Goods; or (b) Any breakdown, accident, theft, loss or damage to the Goods. p1 of 6
6.6 If we are not the Supplier or Manufacturer of the Goods, you must continue to pay us the Monthly Usage Charges despite any defect in the Goods. 7. OVERDUE MONTHLY USAGE CHARGES AND INTEREST 7.1 If you do not pay us the Monthly Usage Charges when they are due: (a) You must pay us the Monthly Usage Charge Default Fee on our demand; and (b) If we demand it, you must pay us interest at the Overdue Rate on those Monthly Usage Charge amounts which are overdue for the period they are overdue. 8. GST, TAXES & DUTIES 8.1 You must pay us on our demand: (a) Any applicable taxes, duties, fees or charges relating to this Agreement, any transaction evidenced under it or the Goods; (b) Any GST relating to: (i) Any supply under or in connection with this Agreement; and (ii) If applicable, our purchase of the Goods to the extent that we are unable to claim an Input Tax Credit. 9. INSURANCE AND CASUALTY EVENTS 9.1 You must effect and maintain insurance for: (a) The Goods for their full insurable value against loss or damage due to fire, accident, theft and such other occurrences as a prudent owner of the Goods would obtain; and (b) The Goods against any liability for personal injury or property damage arising from your possession and use of the Goods. 9.2 Unless we agree otherwise, you must ensure that our interest as owner of the Goods is noted on all relevant insurances. You must provide us with evidence of your insurance arrangements relating to the Goods if we reasonably ask. 9.3 You must not do or allow anything which may prejudice any insurance relating to the Goods. 9.4 You authorise us to receive and apply any insurance moneys relating to any loss, damage or liability referred to in clause 9.1 that we may suffer or incur and you appoint us as your attorney to recover or compromise any claim, loss or damage under the relevant insurances and to give effectual releases and receipts. 9.5 If the Goods are lost, stolen, destroyed or damaged beyond economic repair (Affected Goods), then, we may terminate this Agreement in respect of the Affected Goods in which case, you must pay to us on demand: (a) The amounts referred to in clause 20.1 referable to the Affected Goods; and (b) An amount equal to the residual value of the Affected Goods assumed by us in calculating the Minimum Usage Charges, discounted to its present value by applying a discount rate equal to the Implicit Rate in this Agreement minus 2% per annum. 9.6 If you pay us the amounts referred to in clause 9.5: (a) This Agreement will continue to apply to the remaining Goods and we will notify you of the adjusted Cost Per Use (and thereby the Monthly Usage Charges) (calculated on a pro-rated basis) that will apply as from the next due date for payment of the Monthly Usage Charge; and (b) We will make a pro-rata adjustment to any Rental Payments already paid in respect of the Affected Goods for the period from receipt of the payment referred to in clause 9.5 to the next date on which a Monthly Usage Charge falls due. 9.7 If you pay us the amounts referred to in clause 9.5 and we receive any insurance proceeds in respect of the Affected Goods, we will credit to you such proceeds (net of GST) to the extent of the payment received from you. 10. SERVICE & MAINTENANCE (IF APPLICABLE) 10.1 You acknowledge that you will enter into or have entered into a Service and Maintenance Agreement with a Service Provider in relation to the Goods and the Monthly Usage Charges include an amount for the Maintenance and Service Charges payable to the Service Provider under the Service and Maintenance Agreement for your use of the Goods. 10.2 You authorise us to collect the Service and Maintenance Charges from you and remit them to the Service Provider. 10.3 We will tell you if the Service Provider increases the Service and Maintenance Charges under the Service and Maintenance Agreement to reflect any increased cost to the Service Provider of providing Service and Maintenance. If you agree, we will increase the Monthly Usage Charges correspondingly to include any such increase in the Service and Maintenance Charges. 10.4 If you do not agree to us increasing the Monthly Usage Charges to cover any increase in the Service and Maintenance Charges, you will still be liable to the Service Provider for those increased Service and Maintenance Charges. 10.5 To the full extent permitted by the ACL and other applicable laws, we are not responsible for the Service and Maintenance of the Goods. If there is a dispute in relation to the Service and Maintenance Agreement: (a) To the full extent permitted by the ACL and other applicable laws, your sole rights and remedies are against the Service Provider; (b) You are not entitled to any abatement or deduction of any moneys payable by you to us under this Agreement relating to the rental of the Goods only without the Service and Maintenance Charges; and (c) You must continue to pay us the Monthly Usage Charge amounts relating to the rental of the Goods only under this Agreement. 10.6 We will stop collecting the Service and Maintenance Charges with the Monthly Usage Charges from you if: (a) You give us 20 Business Days written notice to cease doing so; (b) We give you 20 Business Days written notice of our intention to cease doing so; or (c) You are in dispute with the Service Provider in relation to the Service and Maintenance Charges. 10.7 If we stop collecting the Service and Maintenance Charges with the Monthly Usage Charges from you: (a) We will notify you of the part of the Cost Per Use for each Function relating to the rental of the Goods only and require you to make payments for each subsequent month based on a reduced Cost Per Use which excludes any component for Service and Maintenance Charges; in which case you must pay the Minimum Usage Charge and any Excess Usage Charge for each subsequent month based on the reduced Cost Per Use notified by us; (b) You will be liable directly to the Service Provider for the Service and Maintenance Charges payable under the Service and Maintenance Agreement; and (c) In all other respects this Agreement and your obligations under it shall continue unchanged. 11. SOFTWARE 11.1 If there is any Software included in or funded under this Agreement: (a) The Monthly Usage Charges are calculated as if the cost of the Software forms part of the cost of the Goods; (b) Where the context permits, the definition of Goods is taken to include Software for the purposes of this Agreement; (c) If we acquire the Software, we will do so as your agent, unless agreed otherwise; and (d) Where applicable, and depending on the product type of the Software, there may be ongoing licensing fees relating to the Software which may vary as a result of the circumstances dictated by the licence owner, p2 of 6
Manufacturer or Supplier of the Software during the Term of the Agreement. If this occurs, we will adjust the amount of the Monthly Usage Charge accordingly. 12. TERM OF THE AGREEMENT 12.1 The Term of the Agreement is for: (a) The lesser of: (i) The Maximum Initial Term; and (ii) The period from the Commencement Date to the date when the Total Agreed Volume for all Functions (as calculated in accordance with clause 12.2), is reached before the end of the Maximum Initial Term; and (b) Any Renewal Term(s), if applicable, unless terminated earlier in accordance with this Agreement. 12.2 For the purpose of calculating Total Agreed Volume for all Functions, once the Total Agreed Volume for a particular Function has been reached, any Excess Usage for that Function is to be applied toward the Total Agreed Volume of the other Functions. 12.3 Your obligations under this Agreement apply during the Initial Term and continue to apply during any applicable Renewal Term(s). If you do not return the Goods within 7 days of the expiry of the Initial Term in accordance with this Agreement, the Term of the Agreement will automatically renew. 13. AUTOMATIC RENEWAL TERMS & NOTICE 13.1 If you do not return the Goods in accordance with clauses 14.1 and 14.2 within 7 days of the expiry of the Initial Term, the Term of the Agreement will automatically renew at the expiry of the Initial Term for successive further terms of 1 month each (each a Renewal Term), at the same charges (pro-rated if applicable) and otherwise on the same terms and conditions as applied immediately prior to expiry of the Initial Term, until you return the Goods in accordance with clauses 14.1 and 14.2 below at any time during a Renewal Term. Unless we agree otherwise, you must return the Goods within 7 days of the expiry of the Initial Term or at any time during a Renewal Term (as applicable), otherwise, the Term of the Agreement will automatically renew. 14. RETURNING THE GOODS 14.1 Unless we agree otherwise, within 7 days of the expiry of the Initial Term, or at any time during a Renewal Term, or on earlier termination of this Agreement, as the case may be, you must deliver the Goods at your expense to us or to a person or address we nominate. 14.2 When returning the Goods, you must return any related operating manuals and ensure that the Goods are in good order, repair and condition (reasonable wear and tear excepted). 14.3 Unless we agree otherwise, if you do not return the Goods to us in accordance with clauses 14.1 and 14.2: (a) We or our representatives may repossess the Goods, in which case you must pay to us on demand our Repossession Costs; and (b) You will remain liable to pay us on demand Monthly Usage Charges (pro-rated if applicable) for each month, or part of a month, you remain in possession of the Goods (to the extent that such charges are not otherwise payable during that period under clause 13). 15. EVENTS OF DEFAULT 15.1 If any of the following occur, you will be taken to have committed an Event of Default and breached this Agreement: (a) You fail to pay on time any Monthly Usage Charge within 2 Business Days of its due date; (b) You fail to keep insurance in respect of the Goods in accordance with clause 9; (c) You make a representation to us in connection with this Agreement which is false or misleading in a material respect; (d) You cease to carry on your business or a material part of it without our prior written consent or there is a material change in your ownership which is not notified to us in writing within 5 Business Days of such change; (e) An Insolvency Event occurs; (f) You encumber, sub-hire or sub-lease, part with possession of, sell or otherwise dispose of the Goods, in breach of your obligations under clause 4.3(c); (g) You render inoperative or adjust any Meter on the Goods to give incorrect Meter Readings; or (h) You fail to otherwise comply with any of your other obligations under this Agreement. 16. ESSENTIAL TERMS & REPUDIATION 16.1 Without limiting the essentiality of any other term of this Agreement, the following Events of Default are essential terms of this Agreement: (a) Your obligation to pay any Monthly Usage Charge within 2 Business Days of its due date; (b) Your obligation to carry on your business at all times; (c) Your obligation to remain solvent; and (d) Your obligation to not encumber, sub-hire or sub-lease, part with possession of, sell or otherwise dispose of the Goods, without our consent in writing. 17. DEFAULT TERMINATION BY NOTICE 17.1 If an Event of Default occurs that is not an essential term of this Agreement, we will give you written notice requiring you to remedy that Event of Default within 14 days. If you do not remedy that Event of Default within that time, we may terminate this Agreement by giving written notice to you. 17.2 If we breach our obligations under this Agreement, you may give us written notice requiring us to remedy that breach within 14 days. If we do not remedy that breach within that time, you may terminate this Agreement by giving written notice to us. 18. DEFAULT TERMINATION BY REPUDIATION 18.1 If you breach an essential term of this Agreement, you will be taken to have repudiated this Agreement. 18.2 If you repudiate this Agreement, we may terminate this Agreement by giving written notice to you. 19. VOLUNTARY EARLY TERMINATION & PAYOUT 19.1 Provided an Event of Default is not subsisting, you may terminate and pay out this Agreement before the end of the Term by: (a) Giving written notice to us of the proposed date of termination (which date must not be later than the end of the Maximum Initial Term); (b) Paying us on demand all of the amounts calculated in accordance with clause 20.1; and (c) Unless we agree otherwise, returning the Goods at your expense to us or to a person or address we nominate in accordance with clauses 14.1 and 14.2. 19.2 If you ask, we will provide you with the amount payable to terminate and pay out this Agreement. 20. CALCULATION OF TERMINATION & PAYOUT AMOUNTS 20.1 If this Agreement is terminated for any reason, you must pay us on demand: (a) Any Monthly Usage Charges or other amounts which are past due and unpaid; (b) Liquidated loss of bargain damages being the aggregate of each Minimum Usage Charge (net of GST) that would have been payable to the end of the Maximum Initial Term (net of any future Service and Maintenance Charges that we reasonably determine will not be incurred), discounted to their present value by applying a discount rate equal to the Implicit Rate minus 2% per annum; p3 of 6
(c) The Early Termination Fee; and (d) Any Break Costs. 20.2 You acknowledge that the Early Termination Fee relates to those costs (in addition to any applicable Break Costs) that we incur as result of this Agreement being terminated or paid out before the end of the Maximum Initial Term and may be calculated with reference to an allowance for (without limitation): (a) Our cost of the staff member(s) who will calculate and provide you with the payout amount; (b) Our cost of providing premises and information technology used in calculating the payout amount and terminating this Agreement; and (c) Our overhead for processing the early termination and payout of this Agreement which would not have been incurred if this Agreement had run its full Initial Term. 20.3 You acknowledge that we may incur Break Costs as a result of breaking our own funding arrangements in relation to this Agreement. By way of example only, if the Swap Rate provided to us by Westpac Banking Corporation (Swap Rate) on the Commencement Date is more than the applicable Swap Rate on the day this Agreement is terminated, we may suffer a loss. Break Costs may be calculated by multiplying the aggregate of each future Minimum Usage Charge (less the amount relating to the Implicit Rate) that would have been payable to the end of the Maximum Initial Term by the percentage difference between the Swap Rates. 20.4 You acknowledge that the amounts referred to in clauses 21.1 to 21.3 are genuine pre-estimates of our actual losses we will suffer if this Agreement is terminated before the end of the Maximum Initial Term. Break costs could be substantial, particularly if interest rates fall between the Commencement Date and the date this Agreement is terminated. You should contact us for an estimate, or the amount, of the break costs if you are considering paying out this Agreement early before the end of the Initial Term. 21. INDEMNITIES 21.1 You agree to indemnify us from and against all loss, liability, cost or expense (including legal expenses on a full indemnity basis), arising from, or in respect of: (a) Loss or damage to the Goods (to the extent not otherwise recoverable under this Agreement); (b) Personal injury, death or property damage in connection with the Goods or their possession, operation or use; (c) The early termination of this Agreement (to the extent not otherwise recoverable under this Agreement); and (d) Any breach or default by you of this Agreement or any steps taken by us in administering, exercising, enforcing or preserving our rights under this Agreement. 21.2 A party s liability to indemnify any other party shall be reduced to the extent that the other party caused or contributed to the first mentioned party s loss, liability, cost or expense by that other party s fraud, gross negligence or wilful misconduct. 21.3 The indemnities in this Agreement are continuing obligations independent of a party s other obligations under this Agreement. 22. NO WAIVER 22.1 No waiver of any default, breach or repudiation of this Agreement by a party shall affect the rights of that party in respect of any further or continuing default, breach or repudiation. 23. AMENDMENT AND VARIATION 23.1 Subject to clauses 24.1 and 24.2, this Agreement may be amended only if the parties agree in writing. If the amendment is substantial (for example - adding or removing Goods, increasing the Monthly Usage Charge amount or extending the term of this Agreement), we may ask you to sign an Acknowledgment of Variation and you pay to us on demand the Agreement Variation Fee. 23.2 Any variation is only effective from the Variation Commencement Date. 24. BLANKS & CORRECTIONS 24.1 You authorise us to complete any blank spaces appearing in this Agreement relating to: (a) The Commencement Date; or (b) The quantity, brand, model numbers, serial numbers and information identifying the Goods. 24.2 You also authorise us to correct any manifest or typographical errors in this Agreement so long as those corrections do not result in a significant change in your obligations under this Agreement. 24.3 If the description of the Goods in this Agreement signed by you before the Commencement Date is different to the Goods delivered to you and not capable of amendment under clause 24.2, we will contact you to obtain your consent to amend this Agreement. You agree that you will not unreasonably withhold your consent. 24.3 If the Monthly Usage Charge amount changes either before or at the Commencement Date, we will contact you to obtain your consent to amend this Agreement. You agree that you will not unreasonably withhold your consent. 25. ASSIGNMENT 25.1 Subject only to your rights under this Agreement, we may sell, assign, novate, or otherwise deal with our rights, interests and obligations under this Agreement and in relation to the Goods, without giving notice to you or any Guarantor and without obtaining your consent or the consent of any Guarantor. However, we will give such notice and obtain such consent prior to effecting any such sale, assignment, novation or dealing that would be materially detrimental to you. 25.2 You must not assign or novate your rights, interests and obligations under this Agreement to another person without our prior written consent, which consent will not be unreasonably withheld if that other person meets our credit eligibility and other relevant criteria. 25.3 This Agreement binds a party s successors, executors, administrators and assigns. 26. AGENCY 26.1 You acknowledge that: (a) We may enter into this Agreement as principal or as agent for another person; (b) We may enter into this Agreement as agent for a principal funder who is a passive financier; (c) Any such agency may not be disclosed to you; and (d) Such other person or principal funder may have or acquire an interest in or ownership of the Goods. 27. PERSONAL PROPERTY SECURITIES ACT 2009 27.1 For the purposes of the PPS Act, this Agreement is a Security Agreement and creates a Security Interest in the Goods, proceeds from the Goods and, if applicable, any other specified property. 27.2 To the extent permitted by the PPS Act, you agree: (a) To waive your rights to receive any notice or statement under the PPS Act; and (b) That the enforcement provisions in the PPS Act do not apply to the enforcement of our Security Interest. 27.3 You agree to: (a) Us registering our Security Interest on the PPSR in any manner we consider appropriate; (b) Do anything we reasonably request of you to register, p4 of 6
perfect and continue perfection of our Security Interest and so that our Security Interest is, and remains, fully effective and has the priority required by us; (c) Not grant, register, or permit to be registered, any Security Interest in the Goods in favour of a third party without our written consent; and (d) Reimburse us for any costs or expenses we incur relating to the registration, perfection or enforcement of our Security Interest in the Goods. 27.4 We and you agree that neither we nor you will disclose any information of the kind described in section 275(1) of the PPS Act without the other party s consent, unless: (a) Disclosure is permitted under section 275(7)(b) to (e) of the PPS Act; (b) Disclosure is required by law; or (c) Disclosure is required to our assignees or funders. 28. CROSS-COLLATERALISATION 28.1 For the purpose of securing payment of any moneys owing or due by you to us under this Agreement or any other finance agreement or financial accommodation you have with us (including any guarantee, indemnity or security), you agree that any collateral, security or security interest supporting your obligations under any of them shall be collateral, security or security interest supporting all of them. 29. PERMITTED EXCLUSIONS AND LIMITATIONS 29.1 You acknowledge and agree that you have satisfied yourself as to the condition and suitability of the Goods for your purposes and the validity of any Manufacturer s or Supplier s warranties. All express and implied terms, conditions, warranties and guarantees (except those set out in this Agreement) which might apply to or arise out of this Agreement, are excluded to the extent allowed by the ACL and other applicable laws, and we do not give any guarantee, representation or warranty as to the quality, merchantability, acceptability, fitness for purpose, condition, description, assembly, manufacture, design, performance or safety of the Goods. 29.2 To the full extent permitted by the ACL and other applicable laws, we are not liable for any loss or damage relating to or arising from your possession, keeping, use or operation of the Goods (including, without limitation, personal injury, death or property damage) or for any indirect, consequential or economic loss or damage (including, without limitation, loss of profit) arising under or in connection with this Agreement, except to the extent caused or contributed to by our fraud, gross negligence or wilful misconduct. 29.3 In any event, to the full extent permitted by the ACL and other applicable laws, our liability under or in relation to this Agreement or the Goods, is limited, at our option, to one or more of the following: (a) In the case of goods supplied, to one or more of the following (as we determine): the replacement or the cost of replacement of the Goods or equivalent Goods or the repair or the cost of the repair of the Goods; (b) In the case of services supplied, to one or more of the following (as we determine): supplying the services again or paying the cost of having the services supplied again. 29.4 For the avoidance of doubt, nothing in this Agreement is intended to exclude, restrict or modify any rights or remedies which you may have under the ACL or any other applicable law which cannot be excluded, restricted or modified. 30. TRUSTEES 30.1 If you enter into this Agreement in your own right and as trustee of a trust, you warrant that: (a) You are authorised to enter into this Agreement and perform your obligations under it as trustee of the trust; (b) The entering into this Agreement is for the due and proper administration and for the benefit of the beneficiaries of the trust; and (c) You have the right to be indemnified fully out of the trust s property before the trust s beneficiaries for all liabilities you incur under this Agreement. 30.2 You must tell us before: (a) You cease being a trustee of the trust; (b) A new trustee is appointed; or (c) Any re-settlement or distribution of the capital of the trust occurs. 31. OTHER ACKNOWLEDGMENTS 31.1 You acknowledge and confirm that: (a) As at the Commencement Date there are reasonable grounds to believe that you are able to pay your debts as and when they fall due; (b) This Agreement may be subject to end value insurance, end value buy-back arrangements or other arrangements between us and certain third parties, and that these matters may not be, and are not required to be, disclosed to you; (c) We may pay to or receive from a third party a commission, brokerage or fee to, and such commission, brokerage or fee may be included in the Monthly Usage Charges; (d) All of our rights under this Agreement are in addition to our rights under the general law; and (e) We may set off without notice any amount held by us on any account of yours against any amount owing by you to us or any of our related bodies corporate. 32. NOTICES 32.1 A notice to a party under this Agreement must be in writing and: (a) Delivered and left at the party s last known address; (b) Sent by pre-paid express post to the party s last known address; (c) Sent by facsimile transmission to the party s last known facsimile number; or (d) Sent by email to the party s last known email address. 32.2 A notice is deemed to have been served: (a) In the case of delivery, on the day it is delivered; (b) In the case of posting, on the 3rd Business Day following the date of posting; (c) In the case of facsimile transmission, when the transmission report states that it was sent in full and without error; or (d) In the case of email, when the email is received by the recipient s email server and successfully delivered to the recipient s email in-box. 33. SEVERANCE 33.1 If any provision, or part of a provision, contained in this Agreement is rendered void, invalid or unenforceable, then that provision, or part of a provision, shall be severed from this Agreement without affecting the remaining provisions, or parts of a provision. 34. JURISDICTION 34.1 This Agreement shall be governed by the laws in force in the State of New South Wales. The parties submit to the nonexclusive jurisdiction of the Courts and Tribunals of that State and any Courts of appeal from them. 35. INTERPRETATION 35.1 In this Agreement: (a) The singular includes the plural and vice versa; (b) Any gender includes the other genders; (c) Person includes a firm, body corporate, unincorporated associated or any other body or entity; (d) A reference to a section, clause, Part, Annexure or Schedule is a reference to a section, clause, Part, Annexure or Schedule in this Agreement; (e) Headings are for convenience only and do not affect interpretation; and (f) References to statutes include all statutes amending, consolidating or replacing such statutes and includes any subordinated legislation issued under them. p5 of 6
DICTIONARY In this Agreement, the following words and terms have the following meanings: Agreed Minimum Use Per Month means, for a Function for a month, the number of Uses stated to be the Agreed Minimum Use Per Month for that Function as specified in the Financial Table. Acknowledgment of Variation means the form of that name signed by you and us agreeing to a variation of this Agreement. ACL means The Australian Consumer Law as set out in Schedule 2 of the Competition and Consumer Act 2010 (Cth). Agreement means this MAPS MPS Agreement. Agreement Variation Fee means the Agreement Variation Fee as set out in the Financial Table, which relates to the fee payable to vary this Agreement under clause 23. Annexure means an annexure to this Agreement. Break Costs means any costs or loss incurred by us or any person who has funded the purchase of the Goods arising from the early termination of this Agreement, which may be calculated by reference to (among other things, if applicable) the matters referred to clause 20.3. Business Day means a day that is not a Saturday, Sunday or gazetted as a public holiday in New South Wales. Commencement Date means the Commencement Date referred to at the start of this Agreement. Cost Per Use means, for a Function, the Cost Per Use inclusive of GST for that Function as specified in the Financial Table. Cost Per Excess Use means for a Function, the Cost Per Excess Use inclusive of GST for that Function as specified in the Financial Table. Documentation and Establishment Fee means the Documentation and Establishment Fee as set out in the Financial Table and relates to our internal assessment and documentation costs. Early Termination Fee means the Early Termination Fee as set out in the Financial Table, which relates to our prevailing administrative fee for early terminations, and which may be calculated by reference to (among other things, if applicable) the matters referred to in clause 20.2. Excess Usage means, for a Function for a month, the number of Uses made in excess of the Agreed Minimum Use Per Month for that Function. Excess Usage Charge means the sum of the excess usage charge payable under this Agreement for each Function (being the Excess Usage for that Function multiplied by the Cost Per Excess Use for that Function). Financial Table means the Financial Table in Section 2 of Part A. Frequency of Monthly Usage Charges means how often and when the Monthly Usage Charges are to be made under this Agreement as set out in the Financial Table. Function means a black, colour and/or other function(s) that has been selected in the Financial Table. Goods means the goods referred to in Section 3 of Part A or, if applicable, any Annexure and includes any replacement parts, attachments or accessories and, where the context permits, includes any part of such goods. GST has the same meaning as in the A New Tax System (Goods and Services Tax) Act 1999 (Cth). Guarantor means the Guarantor(s) referred to in Section 8 of Part A and, where the context permits, includes each of them and any one or more of them. Implicit Rate means the rate of return expected by us on this Agreement on the assumption that this Agreement runs its full Maximum Initial Term, calculated by reference to (among other things, if applicable) and includes our cost of funding the Agreement, brokerage and a margin to calculate the Minimum Usage Charges payable under this Agreement. Initial Term means the lesser of the Maximum Initial Term and the period from the Commencement Date to the date when the Total Agreed Volume for all Functions (as calculated in accordance with clause 12.2) is reached. Input Tax Credit has the same meaning as in the A New Tax System (Goods and Services Tax) Act 1999 (Cth). Insolvency Event means: (a) The making of an order, the passing of a resolution or the calling of a meeting to consider your winding up, dissolution or bankruptcy; (b) The appointment of a receiver and manager, administrator, liquidator, other external controller or bankruptcy trustee in relation to you or any of your property; or (c) The entering into an arrangement, reconstruction or composition with all or any class of your creditors. Manufacturer means the manufacturer of the Goods. Maximum Initial Term means the fixed Maximum Initial Term of this Agreement as set out in the Financial Table. Meter means the unit meter on the Goods. Meter Reading means the unit meter reading from the Meter. Minimum Usage Charge means the sum of the minimum usage charge payable under this Agreement for each Function (being, for a month, the Agreed Minimum Use Per Month for that Function multiplied by the Cost Per Use for that Function. Monthly Usage Charge means, for a month, the sum of the Minimum Usage Charge and any applicable Excess Usage Charge. Monthly Usage Charge Default Fee means the Monthly Usage Charge Default Fee as set out in the Financial Table, which relates to the fee payable to us in the event payment for a Monthly Usage Charge dishonours or is not paid on time, and which may be calculated by reference to (among other things, if applicable) our banking and internal administration costs of processing and reconciling the dishonour or missed payment and contacting you. Overdue Rate means the rate of interest being 2% per annum above the Implicit Rate on the date that a payment fell due, and calculated daily. party means you, us or the Guarantor as the context requires and parties means you, us and the Guarantor. Payment Date means the date on which a Monthly Usage Charge is payable. PPS Act means the Personal Property Securities Act 2009 (Cth) and any associated legislation. PPSR means the Personal Property Securities Register under the PPS Act. PPSR Registration and Search Fee means the PPSR Registration and Search Fee as set out in the Financial Table, and which may relate to: (a) The registration of our Security Interest(s) under this Agreement on the PPSR; and (b) Searching the PPSR to ascertain priority of our Security Interest(s) under this Agreement. Renewal Term means a renewal term as referred to in clause 13.1. Repossession Costs means all costs and expenses incurred by us in repossessing the Goods and in storing, repairing, insuring, valuing and disposing of, the Goods. Schedule means any Schedule to this Agreement. Security Agreement has the same meaning as in the PPS Act. Security Interest has the same meaning as in the PPS Act. Service and Maintenance means the monitoring, installation, maintenance, repair, servicing or providing of consumables in relation to the Goods (and includes any one or more of those services). Service and Maintenance Agreement means an agreement for Service and Maintenance in relation to the Goods. Service and Maintenance Charges means those charges, if applicable, for Service and Maintenance of the Goods and which may be included in the Monthly Usage Charges. Service Provider means the provider of Service and Maintenance under a Service and Maintenance Agreement and may include the Supplier or Manufacturer. Software means a licence granted by a third party to use computer software. Special Conditions means the special conditions, if any, that apply to this Agreement as set out in Section 6 of Part A. Specified Usage means the Agreed Minimum Use Per Month for each Function. Supplier means the supplier of the Goods. Swap Rate has the meaning set out in clause 20.3. Term of the Agreement or Term means the Term of this Agreement as referred to in clause 12.1. Total Agreed Volume means, for a Function, the number of Uses equal to the Total Agreed Volume for that Function as specified in the Financial Table. Use means one print, copy or other use of the Goods, provided that a use involving paper larger than A4 shall be regarded as two Uses for the purposes of this Agreement. Variation Commencement Date means the date that the parties agree any variation to this Agreement takes effect. p6 of 6