Commercial Leasing Terms and Conditions
- The Lessor has agreed at the request of the Lessee to acquire the goods and to lease the goods to the Lessee.
- The Lessor and the Lessee have agreed to enter into this agreement to set out the terms and conditions of the lease of the goods.
1. Definitions and interpretation
In this lease (including the background) unless the contrary intention appears:
Balance Due means, in respect of the goods at the relevant time, that amount which is, at that time, the sum of:
- all rent and other amounts due or accrued due under this lease;
- interest on the amounts in paragraph 1.1(a) calculated in accordance with clause 7.7;
- the present value of the balance of the total rent that would have been payable during the remainder of the term but which is not then due for payment (the present value being calculated by discounting at the implicit interest rate (as determined by the Lessor) in this lease); and
- any expenses reasonably incurred by the Lessor in recovering the Goods, calculating the Balance Due, administering a Lease termination, or similar.
Business Day means a day that is not:
- a Saturday or Sunday; or
- a public holiday, special holiday or bank holiday in the place in which any relevant act is to be or may be done.
Commencement Date means the Rental Start Date specified in the Rental Agreement
Default Rate means a rate of 8% per annum.
Event of Default means any of the events, omissions or occurrences specified in clause 13.1.
Goods means the Rental Items as described in the Rental Agreement as well as each or any replacement, altered or substitute part and all appliances, parts, components, instruments, appurtenances, accessories and other equipment which may from time to time be incorporated or installed in or attached to the goods and, except where the context otherwise requires includes any part of the goods.
GST has the same meaning as in the A New Tax System (Goods and Services Tax) Act 1999 (Cth).
Lease means the lease made on the terms and conditions set out in this agreement, as varied or supplemented from time to time.
National Credit Code means schedule 1 to the National Consumer Credit Protection Act 2009 (Cth) and includes regulations and instruments made for the purposes of that schedule.
Net Proceeds of Sale means the proceeds of sale or other disposal of the Goods received by the Lessor under clause 16 after deducting all expenditure, including:
- a sum for legal costs (on a solicitor and own client basis);
- expenses incurred by the Lessor in the repossession, storage and valuation of the Goods;
- costs and expenses of and incidental to the sale or other disposal of the Goods by the Lessor; and
- costs and expenses of and incidental to related enforcement advice or action or both.
PPSA means the Personal Property Securities Act 2009 (Cth) and any regulations made pursuant to it.
PPSR means the Personal Property Securities Register established pursuant to the PPSA.
Premises means the address described as the Business Address in the Rental Agreement or any other place agreed in writing from time to time by the Lessor and the Lessee for the purposes of this Lease.
Proceeds has the same meaning as in the PPSA.
Rent means each of the payments described in the Rental Agreement being the rent payable under this Lease.
Rent Payment Dates means the dates Rent is due pursuant to the details outlined in the Rental Agreement.
Rental Agreement means the document executed by the Lessee and the Lessor incorporating this document.
Return Address means the address of the Lessor set out in the Rental Agreement or such other address as is notified by the Lessor to the Lessee from time to time or upon request by the Lessee as the address to which the Goods must be delivered by the Lessee upon expiration or other termination of this Lease.
Term means a period described as the Term of Rental in the Rental Agreement.
Total Rent means the amount described as the Total Rental in the Rental Agreement.
Written off means, in regard to the Goods, damaged to an extent which in the relevant insurer’s opinion renders repair impractical or uneconomic.
- Words importing the singular number include the plural and vice versa. Any gender includes the other genders.
- A reference to legislation or to a legislative provision includes all regulations, orders, proclamations, notices or other requirements under that legislation or legislative provision. It also includes any amendments, modifications or re-enactments of that legislation or legislative provision and any legislation or legislative provision substituted for, and any statutory instrument issued under, that legislation or legislative provision.
- The clause headings in, and the index to, this Lease are for reference purposes only and do not in any way influence or affect the meaning of this Lease.
- A reference to any deed, agreement, licence, document or other instrument (including this Lease) includes a reference to that deed, agreement, licence, document or other instrument as renewed, extended, novated, varied or substituted from time to time.
- A reference to any party to this Lease or to any other deed, agreement, licence, document or other instrument required under this Lease or for the purposes of this Lease includes that party’s executors, administrators, substitutes, successors and permitted assigns.
- Where under or pursuant to this Lease or anything done under this Lease the day on or by which any act, matter or thing is to be done is not a Business Day such act, matter or thing may be done on the immediately succeeding Business Day.
- Where under or pursuant to this Lease or anything done under this Lease the day on or by which any act, matter or thing is to be done is the 29th, 30th or 31st day of any month in which such a day does not occur, such act, matter or thing must be done on the last Business Day of that month.
- Reference to clauses are references to clauses of this Lease.
1.3 Sole agreement
Subject to clause 9.1, the covenants and provisions contained in this Lease exclusively and completely state the rights of the Lessee and the Lessor with respect to the leasing of the Goods.
This Lease supersedes all negotiations and prior agreements, whether written or oral, in respect of the Lessor leasing the Goods, or similar Goods, to the Lessee.
1.4 Joint and several liability
Where the Lessee comprises more than one person, the covenants and agreements on their part contained or implied in this Lease bind them jointly and each of them separately.
Subject to clause 3, on and from the Commencement Date the Lessor must lease to the Lessee and the Lessee must take on lease from the Lessor the Goods for the Term at the Total Rent and on the terms and conditions contained in this Lease.
3. Conditions precedent to Lessor’s obligations
3.1 Conditions precedent
The Lessor’s obligation to lease the Goods to the Lessee is subject to and conditional upon:
- the acquisition of the Goods by the Lessor;
- the Lessee having made the payments to the Lessor specified in clause 7.1 as being payable on the Commencement Date;
- receipt by the Lessor of a written acceptance of the Goods from the Lessee under clause 3;receipt by the Lessor of a Business Purposes Declaration signed by the Lessee;
- no Event of Default or event which, with the giving of notice or the lapse of time or both, would be an Event of Default under this Lease having occurred and, having occurred, continuing to subsist.
3.2 Non-satisfaction of conditions precedent
If the conditions precedent in clause 3.1 have not been fulfilled and fully satisfied or waived by the Commencement Date the Lessor will be relieved of any obligation to lease the Goods to the Lessee under this Lease. Any payment referred to in clause 3.1(b) which has been made will be refunded by the Lessor to the Lessee upon request by the Lessee.
4. Delivery of Goods
4.1 Lessee to obtain possession of Goods
- On and from the Commencement Date and at the Lessee’s own expense the Lessor must give, and the Lessee must take, possession of the Goods.
- Even though the obligations imposed on the Lessor by clause 4.1(a), the Lessee must make any arrangements necessary to enable the Lessee to obtain delivery of the Goods. The Lessor will not be liable for any delay in obtaining, or (where delivery is to be made by a third party, other than a third party acting as agent of the Lessor) refusal of, delivery. The Lessor will not be liable for any damage incurred by the Goods in the course of delivery except where the damage is caused by the negligence of the Lessor or a third party acting as agent of the Lessor.
- The Lessee acknowledges that, although clause 4.1(a), the Lessor has not given any warranty or representation as to the date of delivery of the Goods. The Lessee agrees that the Lessee’s obligation to make the payments set out in clause 7.1 at the times set out in that clause will not be affected by any delay in delivery howsoever caused, except any delay directly caused by the Lessor or a third party acting as agent of the Lessor.
4.2 Lessee’s inspection of the Goods
The Lessee acknowledges that before executing this Lease, the Lessee inspected the Goods. As a result of that inspection the Lessee was satisfied as to the condition, quality, safety and (where applicable) roadworthiness of the Goods, their fitness for the Lessee’s purposes and their compliance with their description.
The Lessee agrees as between the Lessee and the Lessor that the Lessee, on taking delivery of the Goods, will accept the Goods as they are with all faults and defects (if any) subject to the Lessee’s rights and remedies (if any) in respect of the Goods referred to in clause 9.1.
4.3 Written acknowledgment of acceptance
The Lessee will give the Lessor a written acceptance of the Goods. The delivery of such an acceptance to the Lessor will, without any further act, irrevocably constitute acceptance of the Goods by the Lessee for all purposes of this Lease and will bind the Lessee absolutely that the Goods have been fully and unconditionally accepted by the Lessee for the purposes of this Lease.
5. Ownership of the Goods
5.1 Lessor retains title to Goods
The Lessor retains full title to the Goods even though:
- the delivery of the Goods to the Lessee; and
- the possession and use of the Goods by the Lessee,
subject only to the rights of the Lessee as a mere bailee of the Goods with a right only to use them in accordance with, and under, this Lease.
5.2 No option to purchase Goods
The Lessee does not have any right, option or obligation to purchase the Goods and acknowledges that no representation to that effect, express or implied, written or oral, has been made by or on behalf of the Lessor to the Lessee or any nominee of the Lessee at any time.
6. Location of the Goods
6.1 No unauthorised removal
The Lessee must not remove the Goods from the Premises (or, where the Goods are a motor vehicle, the state or territory in which the Premises are located) without the Lessor’s prior written consent.
6.2 Notice of Location of Goods
If at any time and from time to time the Lessor sends the Lessee a written notice requiring the Lessee:
- to inform the Lessor where the Goods are located; or
- if the Goods are not in the Lessee’s possession, to give the Lessor all information in the Lessee’s possession that might assist the Lessor to trace the Goods, the Lessee will comply with that requirement within seven (7) days.
7. Rent and other payments
7.1 Amounts payable by the Lessee
- The Lessee must pay an installment of Rent on the Commencement Date and on each Rent Payment Date
- Duties, taxes, etc: the Lessee must pay any and all rates, road taxes (if the Goods are or include a motor vehicle) and other taxes (excluding any income tax payable by the Lessor), permit, licence and other fees, outgoings, penalties, fines, demands, charges or costs, stamp and other duties and registration fees and assessments imposed by any court or by any federal, state or municipal, statutory or other authority or otherwise (including any related Bank charges, penalties and fines) at any time directly or indirectly upon the Goods, the Lessor, the Lessee on account of the Lessor, where the Goods are or include a motor vehicle, the driver or otherwise upon or in respect of this Lease. These amounts exclude costs for which the Lessor obtains an input tax credit for the amount of GST paid by the Lessor.
- GST: the Lessee must compensate the Lessor on demand if the Lessor determines that, as a direct or indirect result of the introduction of GST, or an increase in the rate of GST, the Lessor’s costs of complying with its obligations under this Lease are increased. If the Lessor reasonably determines that the Lessor is liable to pay GST on a supply made in connection with this Lease and certifies that the Lessor has not priced the supply to include GST or an increase in the rate of GST, the Lessee must pay to the Lessor an additional amount equal to the consideration payable for the supply multiplied by the prevailing GST rate or such increase.
- Use and repair of Goods: the Lessee must pay all repair and operating expenses in respect of the Goods including (without limitation) the cost of fuel and lubricant, the cost of replacement parts and accessories and the costs of complying with any requirements referred to in clause 10.4. However the Lessee will not have any authority to pledge the Lessor’s credit. The Lessee must give notice of this prohibition on pledging the Lessor’s credit and on creating any lien or charge on the Goods to any worker before such worker does any work upon the Goods.
7.2 Lessor may make payments
If the Lessee fails to pay any outgoing referred to in clause 7.1(b) or 7.1(d) by its due date for payment the Lessor may, at its discretion, pay the outgoing. In that case, the Lessee must on demand reimburse the Lessor for the amount paid.
7.3 Lessor may agree to defer payments
If at any time and from time to time the Lessee fails to pay any amount due to the Lessor under this Lease by its due date for payment, the Lessor may agree with the Lessee, in writing, to defer payment of all or part of that amount to a specified date.
7.4 Enforcement costs and expenses
The Lessee must on demand reimburse the Lessor for all costs, charges, expenses, fees, disbursements (including all reasonable legal costs on a solicitor and own client basis) paid or incurred by the Lessor of or incidental to:
- any breach, default or repudiation of this Lease by the Lessee (including the fees of all professional consultants properly incurred by the Lessor in consequence of, or in connection with, any such breach, default or repudiation); and
- the exercise or attempted exercise of any right, power, privilege, authority or remedy of the Lessor under or by virtue of this Lease, including all amounts incurred in repossessing the Goods from the Lessee under the terms of this Lease and in enforcing this Lease generally;
- Any late fees or failed collection fees or any other fee described in the Rental Agreement.
7.5 Method of payment
The Lessee must make all payments to the Lessor free from all deductions and offsets. Each payment must be made in immediately available funds by close of business on its due date. Any payments made in any other way will be at the Lessee’s risk until it is actually received by the Lessor.
7.6 Allocation of payments
Where the Lessee has a payment obligation to the Lessor under an agreement in addition to this Lease and makes a payment to the Lessor without clearly specifying which obligation is to be satisfied by that payment, the Lessor will apply that payment first to the obligation which became, or will become, due first.
7.7 Interest on overdue payments
Where any, or any part of any, rent or other money payable by the Lessee under this Lease is not paid to the Lessor in the manner required by clause 7.5 on or before its due date for payment, default interest will be payable on the outstanding amount.
Default interest will be calculated at the Default Rate for the period for which such outstanding amount is overdue. Accordingly, default interest will accrue on and from the date following the due date for payment of the outstanding amount up to and including the date of its payment. It will be computed on a daily basis for actual days elapsed and will be compounded on the last day of each month.
7.8 Net lease
- This Lease is a net lease. Accordingly, the Lessee acknowledges and agrees that the Lessee’s obligation to make all payments due under this Lease and the rights of the Lessor in and to such payment is absolute and unconditional. Such money will continue to be payable in all events in the manner and at the time provided, unless the Lessee’s obligation in respect of it has been terminated under an express provision of this Lease.
- Without limiting the generality of clause 7.8(a), the Lessee must continue to make all payments due from the Lessee under this Lease in respect of Rent or otherwise if of damage to, or destruction of, the Goods.
- Even though any term whether express or implied in this Lease or any rule of law or course of conduct to the contrary, payments will not be subject to any abatement, reduction, set-off, defence, counter-claim or recoupment of any kind whatsoever.
8. Representations and warranties
8.1 Lessee’s representations and warranties
The Lessee represents and warrants to the Lessor that:
- no existing default: except as disclosed in writing to the Lessor and dispensed with in writing by the Lessor, the Lessee is not in default or difficulty under any deed, agreement or other document or obligation to which it is a party or by which it is bound, or in respect of any financial commitment or obligation (including obligations under guarantees or other contingent liabilities), which default or difficulty is reasonably likely to adversely affect the ability of the Lessee to comply with its obligations under this Lease;
- no litigation: except as disclosed in writing to the Lessor and dispensed with in writing by the Lessor, no litigation or administrative or other proceedings before or of any court or governmental authority or agency or other tribunal have, to the knowledge of the Lessee, been initiated or threatened against the Lessee or any of the Lessee’s assets which would or might have a materially adverse effect upon the business, assets or financial condition of the Lessee;
- no default: no Event of Default or event which, with the giving of notice or the lapse of time or both, would be an Event of Default has occurred or, having occurred is continuing to subsist;financial information: all of the information regarding the Lessee’s assets and liabilities and the Lessee’s income and expenditure provided by the Lessee to the Lessor provides a true and fair view of the financial position of the Lessee at the date on which, or for the period for which, it was expressed to be given; and
- trustee: the Lessee is not the trustee of any trust and, accordingly, enters into this Lease on its own behalf and not as trustee of any trust.
8.2 Deemed repetition
The representations and warranties set out in clause 8.1 must survive the execution of this Lease and will be deemed to be repeated (updated as appropriate) on each Rent Payment Date and on the date of payment of other money under or pursuant to this Lease.
9. Exclusion of liability
9.1 Non-excludable terms and conditions
- If the Goods have a value or are of a kind ordinarily acquired for personal, domestic or household use or consumption such as to attract to this Lease the operation of the provisions of the Competition and Consumer Act 2010 (Cth) (including the Australian Consumer Law (ACL), appended as schedule 2 to the Competition and Consumer Act 2010 (Cth)) and any relevant legislation of any other state or territory, certain conditions and warranties will be implied into this Lease and rights and remedies conferred upon the Lessee with respect to the Goods which cannot be excluded, restricted or modified by agreement (non-excludable terms).
- If there are any non-excludable terms in this Lease, the provisions of clause 9.2 will apply to them.
- The Lessee acknowledges that with respect to any non-excludable terms, the Lessor’s liability is, where permitted, limited to replacement (or the cost of replacement) of the Goods, the supply (or the cost of supply) of equivalent Goods or the repair (or the cost of repair) of the Goods.
9.2 Implied terms and conditions regarding Goods excluded
Subject to clause 9.1, the Lessee agrees that to the full extent permitted by law neither the Lessor gives, nor any dealer, other previous owner of the Goods or any person purporting to act with the authority of the Lessor has given, any condition, warranty or representation whatsoever in favour of the Lessee:
- as to the condition or quality of the Goods including, without limitation, latent and other defects and whether or not discoverable by the Lessor or the Lessee;
- as to the suitability or fitness for ordinary or any special use or purpose of the Goods; or
- as to the correspondence by the Goods to any description of them.
9.3 Other implied terms and conditions excluded
- No further or other covenants or provisions, whether in respect of the Goods or otherwise will be deemed to be implied into this Lease or will arise between the Lessee and the Lessor by way of collateral or other agreement by reason of any promise, representation, warranty or undertaking given or made by the Lessor, any dealer, other previous owner of the Goods or any person purporting to act with the authority of the Lessor on or prior to the date of this Lease. The existence of any such implication or collateral or other agreement is by this negatived.
- Any covenant or provision which is deemed by statute to be incorporated into this Lease but the operation of which may be lawfully excluded, restricted or modified by agreement between the Lessee and the Lessor or otherwise is with this, to the maximum extent possible, so excluded, restricted or modified.
9.4 Exclusion of liability for loss
Subject to clause 9.1, in no event will the Lessor be liable (whether before or after the expiry or termination of this Lease) for any loss or damage which the Lessee suffers arising from, or caused or contributed to by, the Lessor’s negligence or the negligence of the Lessor’s servants or agents. Nor will the Lessor be liable for special, indirect or consequential loss or damage as a result of a breach by the Lessor of this Lease including, but not limited to, loss of profits or revenue, the costs arising from the loss of use of the Goods and the costs of any substitute Goods which the Lessee acquires.
10. Covenants regarding possession and use of the Goods
10.1 Condition of Goods
- The Lessee must at all times keep and maintain the Goods properly serviced, in proper working order and condition and in good and substantial repair. The Lessor will make due allowance for normal wear and tear but the Goods must at all times be capable of being operated fully and efficiently for the purpose, and to the capacity, for which the Goods were intended at the date of their acquisition by the Lessor for the purposes of this Lease.
- The Lessee will be fully responsible to the Lessor for any loss of or damage to the Goods (however occasioned). The Lessee must give reasonable notice to the Lessor in writing of any such loss or damage of a substantial or material nature in excess of normal wear and tear.
10.2 Use of Goods
The Lessee must only operate and maintain the Goods in accordance with recognised methods and standards for Goods of their type and by appropriate methods and standards of operation. Without limiting the generality of this clause 10.2, the Lessee must comply in all respects with the instructions and recommendations of the manufacturer or other supplier relating to the Goods and to their use, in particular where any failure in compliance would limit the obligations of that person to the Lessor or the Lessee under any statute, agreement or otherwise.
10.3 Replacement parts
- The Lessee must with reasonable promptness replace all parts which may from time to time become worn out, lost, stolen, destroyed, damaged beyond repair or permanently rendered unfit for use by damage or obsolescence.
- All replacement parts will be the property of the Lessor. The Lessee must ensure that all replacement parts are free and clear of any third party interests (including any security interest). The Lessee must also ensure that all replacement parts have a value and utility at least equal to the parts replaced, assuming such replaced parts were in the condition and repair required to be maintained by this Lease.
- The Lessee must not, without the prior written consent of the Lessor, make any replacement, alteration or addition of any nature which may lead to a material reduction in the value of the Goods.
- In this clause, parts mean any and all appliances, parts, instruments, appurtenances, accessories and other equipment of whatever nature constituting part of the Goods or which may from time to time be incorporated or installed in, or attached to, the Goods.
10.4 Compliance with safety rules
The Lessee must comply in all respects with all applicable laws, regulations, requirements and rules reasonably necessary for the safe and lawful operation of the Goods.
10.5 Inspection of the Goods by the Lessor
The Lessee grants the Lessor the right, and will use best endeavors to ensure that others grant the Lessor the right, at all reasonable times upon the Lessor giving the Lessee reasonable notice to enter upon the Premises in order to:
- inspect the state of repair of the Goods and to observe the use or operation of the Goods;
- to insect any maintenance records in respect of the Goods; and
- to do any act, matter or thing which may be required to be done to give proper effect to the terms of this Lease or to protect the Lessor’s rights in the Goods.
For the avoidance of doubt, where the Premises are, or are part of, Premises used for residential purposes the Lessor will not be entitled to rely on this clause in order to enter them to take possession of the Goods.
10.6 Repair of Goods
The Lessor may serve on the Lessee a notice in writing of any defect or deficiency in the Goods or their operation or both (whether that defect or deficiency comes to the Lessor’s attention in the course of any inspection under clause 10.5 or otherwise) requiring repair or replacement for which the Lessee is responsible under this Lease. The notice may require the Lessee within a reasonable time (as specified in the notice) to repair the Goods or make good the defect or deficiency.
10.7 Lessor may remedy
If the Lessee fails to carry out the requirements under this clause 10, it will be lawful but not obligatory for the Lessor to enter into the Premises with workers and others and all necessary materials for the purpose of carrying out those requirements and ensuring that the value of the Goods is not adversely affected.
10.8 The Goods as fixtures to land
The Lessee must not at any time attach, affix or secure the Goods to land without the prior written consent of the Lessor.
If the Goods are or include a motor vehicle or other registrable item, the Lessee must keep the Goods duly registered at all times as required by law in the name of the Lessee as if the Lessee were the owner and, where permitted by law, in the name of the Lessor as proprietor.
10.10 Name plates and identification of Goods
The Lessee must not without the Lessor’s prior written consent, remove, change, alter or deface any name, name plate, identification number, trademark or any other identifying mark or number on the Goods, except so as to indicate any replacement, alteration or addition.
10.11 Notification of Lessor’s ownership of the Goods
The Lessee must notify any person seizing the Goods of the ownership of the Lessor and must give immediate written notice to the Lessor of such seizure.
10.12 No dealings with Goods
The Lessee must not without the Lessor’s prior written consent agree, attempt, offer or purport to sell, assign, sublet, lend, pledge, mortgage, let on hire, grant a security interest in, allow any lien or other encumbrance to arise in, or otherwise part with or attempt to part with the personal possession of or otherwise deal with, the Goods or any part of the Goods except:
- a repairer’s lien, in which case the Lessee must take the necessary steps to have the lien removed or satisfied immediately and, in any event, immediately upon demand by the Lessor; and
- such interest as may arise by operation of law in respect of unpaid rates, taxes, fees or duties of any kind whatsoever, in which case the Lessee must immediately pay the same as provided in clause 7.1(b) so that the Goods will be free of that interest, provided that where the Lessor elects to satisfy the interest at the Lessor’s cost the Lessee must on demand reimburse the Lessor the amount paid and any incidental costs and expenses.
10.13 Return of documents
If the Goods are registered in the name of the Lessee as required by clause 10.9 then, upon the Lessee becoming bound to return the Goods to the Lessor under any provision of this Lease, the Lessee must forthwith at the Lessee’s expense obtain and deliver to the Lessor all certificates and other documents relating to the Goods required by law on any transfer of the registration of the Goods. The Lessee must execute and deliver to the Lessor all transfer and other documents necessary or desirable to have the Goods registered and insured in the name of the Lessor or of any person nominated by the Lessor as owner. The Lessee must also give all notices and pay all costs, fees, stamp duty and other outgoings payable in relation to such transfer of registration and such insurance.
11.1 Goods used at Lessee’s risk
The Lessee agrees to use, operate and possess the Goods at the Lessee’s risk. The Lessee agrees that the Lessor will have no responsibility or liability for any loss or damage to any property of the Lessee. To the full extent permitted by law, the Lessee releases and discharges the Lessor and its agents and employees from:
- all claims and demands on the Lessor; and
- any loss or damage whatsoever and whenever caused to the Lessee or its agents or employees whether by way of death of, or injury to, any person of any nature or kind, accident or damage to property, delay, financial loss or otherwise,
arising directly or indirectly from or incidental to a breakdown of, or defect in, the Goods or any accident to or involving the Goods or their use, operation, repair, maintenance or storage (whether occasioned by the negligence of the Lessor or otherwise) or which may otherwise be suffered or sustained in, upon or near the Goods.
11.2 Indemnity against other costs and liabilities
The Lessee assumes liability for, and indemnifies and will keep indemnified, protected, saved and harmless the Lessor and its agents and employees from and against any and all injuries, actions, proceedings, claims, demands, liabilities, losses, damages, costs, penalties and all expenses legal or otherwise (including court costs and legal fees reasonably incurred) and of whatsoever kind and nature (including claims based upon strict liability in tort):
- arising out of or alleged to arise out of the delivery, selection, purchase, acceptance or rejection, ownership, possession, use, repair, maintenance, storage, or operation of the Goods, and by whomsoever used or operated (except where used by the Lessor or any person on behalf of the Lessor);
- incurred by the Lessor in respect of any loss of the Goods by distress, execution or other legal process of the Goods; or
- arising out of any claim for patent, trademark or copyright infringement, for strict liability, or for any other reason being made against the Lessor in connection with the Goods or their operation.
11.3 Survival of indemnities
The indemnities and assumptions of liability contained in clause 11.1 and clause 11.2 will continue in full force and effect even though the termination of this Lease, whether by expiration of time or otherwise, as to any act or omission relating to the Goods occurring during the continuance of this Lease which at any time is claimed to have created a cause of action against the Lessor or assumption of liability by the Lessee.
12. Voluntary return of the Goods
The Lessee has the right to terminate this Lease at any time during the Term. The Lessee may exercise this right by:
- serving a notice on the Lessor stating that the Lessee wishes to terminate this Lease;
- returning the Goods, at the Lessee’s expense, appropriately protected and in the condition required by clause 10.1, to the Lessor at the Return Address during ordinary business hours or at such other time as may be agreed between the Lessor and the Lessee or fixed by a Court on the application of the Lessee; and
- paying to the Lessor the Balance Due in respect of the Goods as at that date.
13. Default and termination
13.1 Events of default
Each of the following events is an Event of Default, namely:
- if the Lessee fails to pay Rent or other money payable under this Lease on the due date for payment and such failure continues for more than five (5) Business Days;
- if the Lessee fails to perform or observe any of the covenants or provisions of this Lease on the part of the Lessee to be performed or observed (other than a failure of the type contemplated by clause 13.1(a)) and (if capable of remedy) such default continues for more than ten (10) Business Days (or such longer period as the Lessor in its absolute discretion permits) after notice from the Lessor requiring the Lessee to remedy the same;
- if the Lessor ascertains that the Lessee has made any false, inaccurate or misleading statement having a material effect in relation to the making of this Lease or any related or collateral document;
- if any application for the bankruptcy of the Lessee is presented and the Lessee cannot within ten (10) Business Days reasonably satisfy the Lessor that the application is frivolous or vexatious;
- if any execution or other process of any court or authority is issued against or levied upon the Goods (other than as a result of any act or omission on the part of the Lessor);if the Lessee suspends payment of its debts generally; or
- if the Goods are abandoned or condemned or are seized or appropriated by any lawful authority and not released within twenty-one (21) days or are attached, sequestrated, impounded or restrained upon and not released within twenty-one (21) days.
13.2 Consequences of default
If an Event of Default occurs, the Lessor may at its option:
- enforce performance: by proceeding by appropriate court action, either at law or in equity, enforce performance by the Lessee of the applicable terms and provisions of this Lease or recover damages for the breach concerned; or
- termination: terminate this Lease and the Lessee’s right to possession of the Goods by notice in writing to the Lessee. Upon service of such notice all rights of the Lessee to or in the use of the Goods will terminate and the Lessor may, directly or by its agent take possession of the Goods. The Lessor will, upon taking possession of the Goods, hold, possess and enjoy the Goods free from any right of the Lessee or its successors or assigns to use the Goods for any purpose.
13.3 Events constituting fundamental breach
- It is expressly agreed and declared by the Lessee and the Lessor that the obligations of the Lessee under the following clauses are essential and fundamental terms of this Lease such that failure to comply with them will constitute a repudiation of this Lease entitling the Lessor to accept such repudiation, clause 7, clause 10, clause 11 and clause 17. The Lessee further agrees that should any Event of Default occur, its occurrence will be a breach of an essential and fundamental provision of this Lease by the Lessee amounting to a repudiation by the Lessee of this Lease.
- The presence of clause 13.3(a) does not mean, and will not be construed as meaning, that there are no other terms and conditions which are fundamental and essential terms and conditions of this Lease.
- If the Lessor terminates this Lease following any such repudiation by the Lessee then without prejudice to any other right or remedy available to the Lessor it is expressly agreed and declared that the Lessor must be entitled to recover from the Lessee by way of liquidated and ascertained damages for such breach the aggregate amount determined under clause 14.2.
14. Amounts due upon expiry and early termination
Upon expiry of the Term, the Lessee must pay to the Lessor the Balance Due (if any).
14.2 Early termination
Upon early termination of this Lease under clause 12, clause 13.2 or clause 13.3, the Lessor:
- will be entitled to retain all Rent and other money previously paid by the Lessee to the Lessor under this Lease;
- may recover from the Lessee as liquidated and ascertained damages, but not as a penalty, the Balance Due with respect to the Goods less the Net Proceeds of Sale of the Goods; and
If the payment of any amount included in a payment required by this clause 14.2 to be made by the Lessee to the Lessor is held to be unenforceable the payment will be unenforceable only to the extent of such amount. The Lessee’s obligation to make the balance of the payment will remain unaffected by such unenforceability.
14.3 Adjustment for Net Proceeds of Sale
- If the Net Proceeds of Sale have been ascertained at the date upon which the payment required by clause 14.1 or clause 14.2 (as the case may be) is due to be made and such proceeds are less than the amount of such payment, the Lessee must pay the difference between the Net Proceeds of Sale and that amount to the Lessor on the last day of the Term or on the early termination date, (as the case may be).
- If the Net Proceeds of Sale have not been ascertained at the date upon which the payment required by clause 14.1 or clause 14.2 (as the case may be) is due to be made, the Lessee must pay the amount of such payment to the Lessor on the last day of the Term or on the early termination date, as the case may be. When the net sales proceeds have been ascertained the Lessor will pay to the Lessee an amount equal to the lesser of the Net Proceeds of Sale and the payment required by clause 14.1 or clause 14.2 (as the case may be).
15. Goods upon Expiry
15.1 Redelivery of Goods by the Lessee
Upon expiry of the Term or early termination of this Lease, the Lessee may
(a) Apply to us to extend the term of the lease for an agreed period at a mutually agreed rental; or
(b) Request that the ownership of the goods be transferred from us the Lessor to them the Lessee. This is at the discretion of the lessor and includes a $150 transfer fee; or
(c) Return the goods to us and immediately deliver the goods, at the Lessee’s expense appropriately protected and in the condition required by clause 10.1, to the Return Address.
15.2 Repossession of Goods by Lessor
If the Goods are not returned to the Lessor as and when required by clause 15.1, the Lessor may retake possession of the Goods. For that purpose the Lessor and its employees and agents may, without notice, liability or legal process, enter upon or into the Premises and may break open any gate, door or fastening and detach or dismantle the Goods from any part of the Premises to which the Goods have been affixed.
15.3 Repossession from Premises used for residential purposes
Even though the provisions of clause 15.2, neither the Lessor or any employee of the Lessor nor any agent of the Lessor, will enter any part of Premises used for residential purposes for taking possession of the Goods unless:
- a court has authorised the entry; or
- the occupier of the Premises has, after being informed in writing of the provisions of section 91 of the Consumer Credit Code, consented in writing to the entry.
16. Sale of Goods upon expiry or termination
16.1 Sale of Goods
When the Lessor obtains possession of the Goods under clause 15, the Lessor will be entitled to sell or otherwise dispose of the Goods in whole or in part by public auction, by tender, by private treaty or to or through persons dealing in equipment of the same or similar description or in any other manner and upon such terms and conditions as the Lessor thinks fit.
16.2 Goods not returned to Lessor
If the Goods are not returned to, or recovered by, the Lessor and the Lessor is of the opinion that it is impossible, impracticable or uneconomical to retake possession of the Goods, then for the purpose of clause 14 and clause 17 the Net Proceeds of Sale of the Goods will be deemed to be nil.
17. Capital loss indemnity
- Except to the extent that any loss may arise under the Consumer Credit Code, the Lessee indemnifies the Lessor in all circumstances, including but not limited to termination of this Lease by the Lessor following a non-repudiatory breach by the Lessee, in respect of any capital loss which the Lessor may suffer as a result of entering into this Lease.
- The measure of the Lessor’s capital loss at any time will, except as otherwise provided by this Lease, equal the amount (if any) by which the depreciated value of the Goods exceeds the Net Proceeds of Sale, together with any loss of investment, opportunity cost or other capital loss suffered by the Lessor resulting from the early return to it of its capital or otherwise.
- For the purpose of this clause 17, depreciated value means that portion of the original cost to the Lessor of acquiring the Goods which is outstanding to the Lessor on the date of termination of this Lease, as certified in writing by the Lessor, which certificate must (in the absence of manifest error) be conclusive and binding.
Nothing in this clause 17 will entitle the Lessor to recover under this clause more than an amount equal to the Balance Due nor to recover the same amount twice.
18. Application of money
All money received by the Lessor under or by virtue of clause 14, clause 16 or clause 17 will be applied in the following order and manner:
- first, in payment of all costs, charges and expenses properly incurred in or incidental to the exercise or performance or attempted exercise or performance of any of the powers or authorities conferred by this Lease or otherwise arising in relation to this Lease;
- second, in or towards payment of such other expenses in relation to the Goods as the Lessor is empowered under this Lease to appropriate and thinks fit to pay; and
- third, in or towards payment to the Lessor of the amounts due to the Lessor under this Lease.
19. Power of attorney
19.1 Appointment of attorney
For valuable consideration and by way of security for the interest of the Lessor in the Goods and for the performance of the obligations owed by the Lessee to the Lessor under this Lease, the Lessee irrevocably appoints the Lessor and its successors and assigns, and every director, secretary, and officer of the Lessor whose title includes the word “manager” severally the attorney of the Lessee for the purpose of doing all acts and things which the Lessee is obliged to do or which the Lessor is empowered or authorised to do under this Lease.
19.2 Exercise of power of attorney
Upon the exercise of any power or authority contained or implied in this Lease, including the power conferred on the Lessor by clause 19.1, no person dealing with the Lessor or any attorney appointed under this Lease must be bound to inquire:
- whether any Event of Default has occurred;
- whether this Lease has been repudiated by the Lessee and such repudiation accepted by the Lessor;
- as to the due appointment of any attorney; or
- otherwise as to the propriety or regularity of the exercise of any power or authority under this Lease.
No such person must be affected by notice express or otherwise that any such exercise is unnecessary or improper. Even though any irregularity or impropriety in the power or authority its exercise must as regards the protection of other persons be deemed authorised by that power and authority and must be valid and effectual accordingly.
20.1 Contracting Out of PPSA Enforcement
If chapter 4 of the PPSA does apply to the enforcement of a security interest arising under or in connection with this Lease, the Lessee agrees the following provisions of the PPSA will not apply to the enforcement of that security interest:
- section 95 (notice of removal of accession), to the extent that it requires the Lessor to give the Lessee a notice;
- section 96 (when a person with an interest in the whole may retain accession);
- subsection 121(4) (enforcement of liquid assets – notice to grantor);
- section 125 (obligation to dispose of or retain collateral);
- section 130 (notice of disposal), to the extent that it requires the Lessor to give the Lessee a notice;
- paragraph 132(3)(d) (contents of statement of account after disposal);
- sub-section 132(4) (statement of account if no disposal);
- section 142 (redemption of collateral); and
- section 143 (reinstatement of security agreement).
Where a person is a controller in relation to the Goods, the parties agree that part 4.3 of the PPSA will not apply to the enforcement of any Security Interest in the Goods by that controller.
20.3 PPSA Notices
Despite clause 19.1, notices or documents required or permitted to be given to the parties for the purposes of the PPSA must be given in accordance with the PPSA.
20.4 Registration on PPSR
The Lessee consents to the Lessor effecting a registration on the PPSR (in any manner the Lessor considers appropriate) in relation to any security interest arising under or in connection with this Lease and the Lessee agrees to provide all assistance reasonably required by the Lessor to facilitate this.
20.5 Verification Certificate
The Lessee waives its right to receive any notice under the PPSA (including notice of a verification statement) unless the notice is required by the PPSA and cannot be excluded.
20.6 Proceeds and Security Agreement
The Lessee acknowledges that if the Lessor’s interest under this Lease is a security interest for the purposes of the PPSA:
- that security interest relates to the Goods and all Proceeds of any kind; and
- this Lease is a security agreement for the purposes of the PPSA.
21.1 Acceptance of Rent after default or repudiation
Acceptance of any payment of Rent by the Lessor:
- within sixty (60) days after the Lessor has become aware of an Event of Default or an event constituting a repudiation of this Lease by the Lessee; or
- more than sixty (60) days after the Lessor has become aware of an Event of Default or an event constituting a repudiation of this Lease by the Lessee where Rent has been accepted by the Lessor expressly without prejudice to its rights and remedies in respect of that Event of Default or that repudiation, will be without prejudice to the exercise by the Lessor of the powers conferred upon the Lessor by this Lease. Such acceptance will not operate as an election by the Lessor either to exercise or not to exercise any of the Lessor’s rights, powers or privileges under this Lease.
21.2 Remedies cumulative
The remedies provided in this Lease in favour of the Lessor arising pursuant to an Event of Default or after a repudiation of this Lease by the Lessee will not be deemed to be exclusive but will be cumulative and will be in addition to all other remedies in its favour existing at law, in equity or in bankruptcy. The election at any time to enforce any such remedies will in no way bar the later enforcement from time to time of any other such remedies.
21.3 Quiet enjoyment
If the Lessee pays the Rent and all other money payable under this Lease and duly and punctually performs all of its other obligations under this Lease, the Lessee may peaceably possess and enjoy the Goods during the Term without any interruption or disturbance from the Lessor or any other person or person lawfully claiming by, from or under the Lessor.
21.4 Discretion on consent
In any case where, under or pursuant to this Lease, the doing or execution of any act, matter or thing by the Lessee is dependent upon the consent or approval of the Lessor, such consent or approval may be given conditionally or unconditionally or may be withheld by the Lessor n its absolute uncontrolled discretion, unless this Lease otherwise provides.
None of the terms or conditions of this Lease, nor any act, matter or thing done under or by virtue of, or in connection with, this Lease will operate as a merger of any of the rights and remedies of the Lessor in or under this Lease or otherwise. All such rights and remedies of the Lessor will continue in full force and effect.
21.6 Statutes not to abrogate Lease
Unless application is mandatory by law, no statute, ordinance, proclamation, order, regulation or moratorium present or future will apply to this Lease so as to abrogate, impair, diminish, fetter, delay or otherwise prejudicially affect any rights, powers, remedies or discretions given or accruing to the Lessor under this Lease.
21.7 Reimbursement of Lessor
To the extent permissible at law, the Lessee will forthwith upon demand pay to the Lessor by way of additional Rent an amount equivalent to any money paid by the Lessor in respect of any liability imposed on the Lessee under or by virtue of this Lease, even tough that any statute, ordinance, proclamation, order, regulation or moratorium present or future directly or indirectly imposes such liability upon the Lessor.
The Lessor may at any time assign, charge or otherwise deal with the Goods or its right, title and interest pursuant to this Lease to the extent permissible by law. The Lessee must not assign or charge this Lease or any of its rights or obligations under this Lease without the prior written consent of the Lessor.
21.9 Statement by Lessor
A statement in writing signed by a director, secretary, or officer of the Lessor whose title includes the word “manager” stating the amount due or owing by the Lessee to the Lessor, the identity of the Goods, or any other act, matter or thing arising under this Lease as at any date or dates set out in that statement will be prima facie evidence of the facts so stated.
21.10 Severability and survival of covenants
If any provision of this Lease is or at any time becomes void or unenforceable the remaining provisions will continue in full force and effect. Any void or unenforceable provision will be replaced forthwith by a lawful and enforceable provision which so far as possible achieves the same economic benefit or burden for the Lessor and the Lessee as the unlawful or unenforceable provision was intended to achieve. All obligations of the Lessee under this Lease will survive the expiration or termination of this Lease to the extent required for their full observance and performance.
21.11 No waiver
- Time is of the essence of this Lease. However, no failure or delay on the part of the Lessor to exercise any power or right under this Lease will operate as a waiver of that power or right. Nor will any single or partial exercise of any power or right under this Lease preclude any other or further exercise of that power or right.
- The Lessor may, at its discretion, at any time and from time to time waive compliance by the Lessee with any requirement including (without limitation) the requirement to pay an amount payable under this Lease. However, the Lessor will only be taken to have waived any power or right under this Lease, including (without limitation) any right in respect of any Event of Default, to the extent that the right or power has been expressly waived in writing by a director, secretary or other officer of the Lessor whose title includes the word “manager”, irrespective of any previous waiver of any other breach of the same or any other covenant or provision of this Lease or any other agreement.
21.12 Lessee’s omissions
If the Lessee omits or neglects or fails to pay any money or to perform any of its obligations under this Lease then on each occasion the Lessor may at its discretion pay such money or perform such obligation (but without prejudice to any other right or remedy of the Lessor by reason of such neglect or failure) as if it were the Lessee to the extent permissible by law.
21.13 Further assurances
To the extent permissible by law the Lessee must at its expense do any further act and execute any further document which the Lessor may reasonably request in order to protect the Lessor’s title to the Goods and the Lessor’s rights, powers and remedies under this Lease.
Any notice or demand to be given under or in relation to this Lease will be deemed to be duly given or made if it is in writing and:
- in the case of the Lessee, by:
- delivering it to the Lessee personally or
- leaving it at, or sending it by prepaid post, facsimile or electronic communication to the address of the place of residence or business of the Lessee last known to the Lessor; and
- in the case of the Lessor, by:
- leaving it with an officer of the Lessor at the Lessor’s office address or any other address the Lessor has provided to the Lessee; or
- sending it by post, facsimile or electronic communication to any address the lessor has provided to the Lessee.
If the Lessee wishes the Lessor to use electronic communication to give a notice:
- the Lessee must provide the Lessor with authorisation to use a specific electronic address; and
- the Lessor will only give a notice through electronic communication where the National Credit Code and this Lease permit it.
21.15 Governing law and submission to jurisdiction
This Lease will be construed in accordance with the law of the state or territory in which it is executed by the Lessee and the law of such state or territory will be the proper law of the contract. The parties submit to the non-exclusive jurisdiction of the courts of that state or territory and any courts which may hear appeals from there.
The Lessor and Lessee agree that:
- the terms and conditions of this Lease, and any other related document(s) are confidential; and
- the content of these documents will not be disclosed (except to the extent and for the purposes such disclosure is expressly permitted by this agreement) or required by law (other than section 275(1) of the PPSA).