COR-LGL-AGT-0001
Revision Date: 19/11/2024
All Contracts
1 Credit Approval
Unless the Client has a Commercial Credit Account with a sufficient unutilized limit, all orders are subject to ATCO’s credit approval within 15 days from the date of the receipt by ATCO of the Client’s acceptance of Quotation.
2 Acceptance of Quotation
Subject to clause 24, the Client may accept a Quotation and will be bound by the resulting Contract upon signing the Quotation or by taking possession of the Equipment upon its delivery, whichever occurs earlier.
3 Indemnities
(a) The Client must indemnify ATCO against any liability or loss, arising from and any damages, costs, claims, legal fees and expenses arising from or incurred in connection with the use, occupation, operation, maintenance, repair, storage, transportation or keeping of the Equipment; or ATCO owning the Equipment; or ATCO exercising a right under the Contract (including doing anything the Client should have done under the Contract); or the Client not doing what the Client should have done under the Contract.
(b) This indemnity is a continuing obligation, separate and independent from the Client’s other obligations under this Contract. It continues after this Contract ends or is terminated. It is not necessary for ATCO to incur expense or make a payment before ATCO can enforce its right of indemnity.
5 Entire Agreement
These terms and conditions and the relevant Quotation comprise the whole of the Contract between ATCO and the Client. Any other terms and conditions referred to in any purchase order form or similar document issued by the Client are of no effect. The Client acknowledges that in entering the Contract it has not relied on any representations or warranties about its subject matter except as expressly provided by the written terms of the Contract. If any part of these terms and conditions is determined by any authority to be unenforceable or unlawful, these terms and conditions are to be read and enforced as if the unenforceable or unlawful parts had been deleted.
6 Costs and Expenses
The Client indemnifies ATCO for all costs and expenses including solicitor’s fees, on a solicitor and own client basis, incurred by ATCO in collecting overdue amounts or enforcing a Contract. These indemnified costs and expenses are payable on demand. This indemnity survives the termination of a relevant Contract.
7 No set off
The Client must not withhold any payment under a Contract or make a deduction from it for any reason, including because:
(a) the Equipment is damaged, will not operate or is not in the possession of the Client; or
(b) the Client claims to have a set-off, counter-claim or any other right against ATCO or any other person.
8 Interest
If a payment due by the Client under a Contract is not made when due, ATCO may charge interest on the amount payable at the rate of 5% over the National Australia Bank Limited Benchmark Rate on the day the payment is due (or if no such rate is published on that date then the most recently published rate). Interest will accrue daily until the relevant amount is paid and will be capitalized at the end of each month.
9 Taxes and Charges
(a) Unless otherwise stated, prices quoted do not include GST or any other taxes and duties.
(b) Where GST is imposed on a supply made under a Contract by ATCO to the Client, the Client must pay or provide the GST exclusive amount of consideration for the supply and, in addition to and at the same time as the GST exclusive amount of consideration is payable or to be provided for the supply, an additional amount which is equal to the amount of ATCO’s GST liability for that supply.
(c) The Client must pay all stamp and other duties, taxes and charges incurred, and which may be payable in connection with this Contract or a payment or receipt under it.
10 PPSA
(a) If Chapter 4 of the PPSA would otherwise apply to the enforcement of a security interest arising out of a Contract, the parties agree that the following provisions of the PPSA will not apply to the enforcement of that security interest: section 95 (notice of accession), to the extent that it requires ATCO to give notice to the Client; section 96 (when a person with an interest in the whole may retain the accession); section 125 (obligation to dispose of or retain collateral); section 130 (notice of disposal), to the extent that it requires ATCO to give notice to the Client; section 132(3)(d) (contents of statement of account after disposal); section 132(4) (statement of account if no disposal); section 142 (redemption of collateral); and section 143 (reinstatement of security agreement).
(b) Notices or documents to be given to ATCO for the purposes of the PPSA must be given in accordance with the PPSA. The Client waives the 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.
(c) The Client consents to ATCO effecting and maintaining a registration on the PPSA register (in any manner ATCO considers appropriate) in relation to any security interest contemplated by this Contract and the Client agrees to provide all assistance reasonably required to facilitate this. The Client agrees to pay all fees and charges associated with ATCO making such registrations.
(d) The Client must notify ATCO at least 14 days before it changes its name, Australian Company Number or Australian Business Number.
11 Application of Payments
If the Client makes a payment to ATCO at any time, whether in connection with a Contract or otherwise, ATCO may apply that payment to any part of the Amount Owing as it sees fit.
12 Confidentiality
To the extent permitted by section 275 of the PPSA, the parties agree to keep the terms of this Contract and all information of the kind mentioned in section 275(1) of the PPSA confidential and to not disclose the information to any person except where the disclosure is required by law (other than section 275(1) of the PPSA).
13 Intellectual Property
The Client acknowledges that ATCO is solely entitled to all Intellectual Property Rights that may arise or be capable of being claimed as a result of anything done, performed, manufactured supplied or provided by ATCO in the course of, incidental to, or in connection with, any Contract between ATCO and the Client. The parties agree that this clause shall survive the termination of the Contract.
14 Applicable Law
Each Contract is governed by the laws of Queensland. The Client and ATCO submit to the non-exclusive jurisdiction of the courts of that place.
15 Client Supplied Services
In the event the client is responsible for transport, installation or dismantling the client must ensure works are performed in a professional and safe manner in order to ensure no damage to the building structure or contents. Note in the event the client is supplying the above-mentioned services the following applies:
(a) Issues arising from the installation of the buildings, including roof leaks on modular joins are the responsibility of the Client.
(b) The Client is responsible for ensuring adequate ventilation is provided between ground level and the modular floor level. All modular joins are to be sealed at the roof and floor joins to prevent condensation. Any condensation issues arising from ineffective seals on the joins or inadequate space beneath the floor level are the responsibility of the Client.
(c) The Client is to ensure that all unsealed roads are suitable for transport prior to dispatch. Damage to the modules from corrugated road conditions are the responsibility of the Client. If required ATCO will provide a representative to jointly inspect the modules immediately on arrival to site with the Client as second handover point, if ATCO has been engaged to deliver the modules to site.
(d) The Client is required to ensure buildings are appropriately prepared for transport in order to eliminate damage.
(e) The client is responsible for ensuring buildings are appropriately tied down.
Sale Contracts
The terms and conditions in clauses 16 to 21 apply only to Sale Contracts
16 Payment and Delivery
(a) Unless otherwise stated in the relevant Quotation, terms of payment will be net cash immediately upon receipt of invoice.
(b) Unless otherwise stated delivery will be no more than 120 days from date of receipt of the order from the Client or the date of the relevant signed Quotation, whichever is earlier.
(c) Claims covering shortages or damage to the Equipment must be made in writing by the Client at the time of delivery.
17 Liability Regarding Drawings and Permits
(a) Where the Client supplies drawings and other specifications for Equipment to be manufactured by ATCO, ATCO will not be liable for any defects arising from those drawings, designs or specifications. If the drawings designs and/or specifications do not specify materials and/or manufacturing methods then ATCO may, to the extent permitted by law, utilise any materials and/or manufacturing methods it considers appropriate and which ATCO believes satisfies the provisions of any relevant legislation or industry standard or code.
(b) Unless indicated otherwise in the Scope of Works, ATCO will not be responsible for obtaining or advising the Client about permits, certification, fees or other authorisations or approvals required for the Equipment or its use.
18 Special Requirements
ATCO will not be responsible for the Equipment meeting any special requirements of any local government authority, building code, union or labour organisation. All such special requirements will be at the cost of the Client and are outside the Scope of Works.
19 Retention of Title
(a) Ownership of the Equipment remains with ATCO until all Amounts Owing have been paid to ATCO in full and until then the Client only has a right to use the Equipment.
(b) The Client also grants ATCO a security interest in the Equipment to secure the payment of all Amounts Owing and the performance of the Client’s obligations under the Contract.
(c) If the Client fails to comply with any terms and conditions of a Sale Contract in relation to the payment of any Amount Owing or otherwise or becomes insolvent it will be in default. If the Client defaults, then:
(i) immediately on ATCO’s request, the Client must return to ATCO any Equipment acquired from ATCO; and
(ii) ATCO may enter the premises at which the Equipment is located and seize possession of it; and
(iii) ATCO may retain, sell or otherwise dispose of the Equipment.
(d) These terms and conditions apply even if ATCO gives the Client a Commercial Credit Account.
(e) The Client must not sell, transfer, hire, lease, dispose of, or part with possession or control of the Equipment to any person (including a Related Corporation) without ATCO’s prior written consent until all Amounts Owing have been paid in full. If the Client does any of these things in breach of these terms, the proceeds are to be held by the Client on trust for ATCO irrespective of whether the proceeds are held in a separate account by the Client or otherwise.
20 Risk
The Client bears the entire risk of loss arising in connection with the Equipment and its use following delivery to the Delivery Site.
21 Supply Only
In the event the contract is a supply only contract (the client is undertaking installation), the following clauses apply:
(a) Building modules are to be inspected and accepted by the client at the ATCO factory on completion of assembly.
(b) Issues arising from the installation of the buildings, including roof leaks on modular joins, are the responsibility of the Client.
(c) The Client is responsible for ensuring adequate ventilation is provided between ground level and the modular floor level. All modular joins are to be sealed at the roof and floor joins to prevent condensation. Any condensation issues arising from ineffective seals on the joins or inadequate space beneath the floor level are the responsibility of the Client.
(d) The Client is to ensure that all unsealed roads are suitable for transport prior to despatch. Damage to the modules from corrugated road conditions are the responsibility of the Client. If required ATCO will provide a representative to jointly inspect the modules immediately on arrival to site with the Client as second handover point, if ATCO has been engaged to deliver the modules to site.
Hire Contracts
The terms and conditions in clauses 22 to 30 apply only to Hire Contracts
22 Term
(a) The term of a Hire Contract and the rentals payable under it are specified in the relevant Quotation. If the Client retains possession of the Equipment at the end of the Hire Contract term, the hire will continue on a month-to-month basis on the same terms and conditions as the Hire Contract. Monthly rental is based on 4.333 weeks per month. Rental is payable monthly, even if the Quotation refers to a weekly hire or rental rate.
(b) If the Quotation expressly provides that ATCO is responsible to pick-up the Equipment at the end of the Hire Contract term and is unable to do so because it cannot access the Delivery Site due to weather conditions or any other reason beyond ATCO’s control, the hire will continue on a month by month basis on the same terms and conditions as the Hire Contract until such time as ATCO is able to access the Delivery Site and pick-up the Equipment.
23 Equipment
For the purposes of a Hire Contract, the Equipment means the equipment specified in the Quotation and includes all movable and removable chattels specified in the relevant Quotation or supplied with the Equipment specified in the relevant Quotation.
24 Prior Commitment of Equipment
In the event that ATCO has committed the Equipment to a third party after the date of the relevant Quotation and prior to receipt by ATCO’s Contract Administration Department of the Client’s acceptance of that Quotation, then no Hire Contract will have been formed in respect of that Quotation and ATCO will have no further liability to the Client.
25 Payment
The Client must pay to ATCO in advance the monthly rental payments provided in the relevant Quotation. The first rental payment is to be made on the commencement date and each subsequent payment on the first Business Day of each succeeding month during the Hire Contract term, and any extensions of the Hire Contract term. If the Hire Contract term commences or terminates during a month, then the rent payable for the portion of the month will be pro-rated on the basis of a thirty-day month.
26 Title
(a) The Equipment remains the property of ATCO at all times. The Client is only a bailee of the Equipment and only has a right to use the Equipment during the Hire Contract term and any extensions of the Hire Contract term.
(b) The Client must not sell, transfer, hire, lease, dispose of, or part with possession or control of the Equipment to any person (including a Related Corporation) and must not move the Equipment from the Delivery Site without the prior written consent of ATCO.
(c) The Client must not make or cause to be made any alterations to the Equipment without ATCO’s prior written consent.
(d) The Equipment must not be attached to any property without ATCO’s prior consent. Under no circumstances does the Equipment become a fixture and the Client must obtain an acknowledgment that the Equipment is not a fixture from any third party on whose land the Equipment is placed.
(e) The Client must ensure that any replacement part or add on becomes ATCO’s property and is not subject to a security interest. Replacement parts or add-ons form part of the Equipment.
27 Repair
The Client must take proper care of the Equipment and keep the Equipment in good and substantial repair and condition (reasonable wear and tear only excepted) and in a clean, sanitary condition. If the Equipment requires repairing or cleaning the Client must pay to ATCO, the cost of repairs and/or cleaning at rates based on current competitive prices chargeable for the repair and/or cleaning at the location of the Equipment.
28 Insurance
(a) The Client must insure at all times against loss or damage to the Equipment caused by fire, lightning, explosion, earthquake, aircraft, riot, malicious damage, storm and tempest, flood, theft or accident for the full insurance value as specified by ATCO; and public liability for bodily injury or damage to property arising in connection with the Equipment or its use for no less than $10,000,000.00 unless notified by ATCO to the Client.
(b) The insurance policy must:
(i) be in a form and substance and with an insurer acceptable to ATCO;
(ii) contain a provision where the insurer waives any right of subrogation which the insurer may have with respect to ATCO;
(iii) note the interest of ATCO as owner of the Equipment.
(c) The Client must produce proof of insurance to ATCO or take up the option of the “insurance waiver” through ATCO. If the Client fails to insure and keep insured the Equipment, ATCO may do so at the cost indicated beside the words “insurance waiver” in the relevant Quotation. This cost will be added to the monthly rental payable on the next monthly instalment date for the Equipment. An excess of $1,000 will apply to each claim made under this arrangement. If ATCO’s insurance policy applies because the Client has exercised the insurance waiver:
(i) the Client must provide a written report to ATCO and, in the case of theft, to the police within 24 hours of any incident likely to result in a claim against the insurance; and
(ii) the Client accepts the terms and conditions of ATCO’s insurance policy, including all exclusions
(d) The Client must not:
(i) do anything or fail to do anything which would allow the insurer to refuse or reduce an insurance claim; or
(ii) vary the insurances effected for the Equipment without ATCO’s prior consent; or
(iii) enforce, conduct, settle or compromise any claim without ATCO’s prior consent.
(e) The Client’s indemnity under 3(a) is not affected by any insurance arrangements or their effectiveness.
29 Default, Termination and Expiration
(a) If the Client fails to pay rent or other moneys required to be paid under the terms of the Hire Contract by the due date for payment; or fails to insure the Equipment as required by the Hire Contract; or is Insolvent; or does or causes to be done any act or thing whereby ATCO’s rights in the Equipment are prejudiced or jeopardised, ATCO may, without notice, terminate the Hire Contract.
(b) ATCO may, at any time after the end of the term specified in the relevant Quotation, terminate the Hire Contract by giving 10 days notice in writing to the Client. The Client must then return the Equipment to ATCO at the Client’s own risk and expense.
(c) If ATCO terminates a Hire Contract, ATCO may retake possession of the Equipment, and the Client must do everything in their power at their own cost to ensure ATCO can lawfully enter any premises where the Equipment is located and remove the Equipment. The Client is responsible for any costs incurred by ATCO in retaking possession of the Equipment.
(d) The Client may terminate a Hire Contract at any time after the term specified in the relevant Quotation has expired by giving 10 days notice in writing to ATCO, and by returning the Equipment to ATCO at the Client’s own risk and expense.
(e) On termination of a Contract the Client must pay to ATCO:
(i) all moneys owing to ATCO (including all rent payable until the end of the term specified in the relevant Quotation if the Hire Contract is terminated before that date); and
(ii) the full replacement and/or repair cost of any Equipment not returned to ATCO or not satisfying clause 26 of these Terms and Conditions.
30 Return of ATCO hired Equipment
(a) Without limiting the Client’s obligations under clause 29, the Client must not return the Equipment (including buildings) to ATCO facilities or premises without the prior written approval of ATCO for the transportation and other return arrangements.
(b) Unless the Quotation specifies that ATCO is undertaking the building dismantling or preparation for return of the Equipment, the Client is responsible for ensuring the Equipment (including buildings and any inclusions, attachments, fixtures, or the like) is suitable for safe movement.
(c) If the Client is responsible for transportation or return of the Equipment, it is the responsibility of the Client to ensure the building is transported or returned in accordance with Heavy Vehicle National Law and associated regulations and guidelines and, if applicable, laws, regulations and guidelines relating to heavy vehicles in Western Australia and the Northern Territory- including responsibility for the use of correct trucks, loading, tie down, route planning, permits and sign off documentation.
34 Definitions in this document:
Insolvent means for the Client (as applicable) being an insolvent under administration or insolvent or having a Controller appointed (each as defined in the Corporations Act), in receivership, in receivership and management, in liquidation, in provisional liquidation, under administration, wound up, subject to any arrangement, assignment or composition, protected from any creditors under any statute or dissolved (other than to carry out a reconstruction while solvent), if an individual, a bankruptcy notice is filed in respect of the Client or otherwise admits in writing or is declared by a court that it is unable to pay its debts as and when they fall due.
Intellectual Property Rights means rights subsisting or capable of subsisting or being obtained under intellectual property legislation, including legislation dealing with copyright, circuit layouts, designs, patents, plant varieties or trade marks, and whether in Australia or overseas and any form of intellectual property rights arising in equity or at common law including trade secrets, know-how and proprietary or confidential information (including rights to apply for or obtain any of them).
PPSA means the Personal Property Services Act 2009 (Cth) and any regulations under it.
Quotation means a sales quotation, hire quotation, proposal or similar document issued by ATCO, including any scope of works form attached to it.
Related Corporation has the meaning given to the term “related body corporate” in section 50 of the Corporations Act.
Sale Contract means a Contract for the sale of Equipment by ATCO to the Client.
Scope of Works means the scope of works for a Contract as specified in the relevant Quotation.
Taxes means taxes, levies, imposts, charges and duties imposed by any authority (including stamp and transaction duties) (together with any related interest, penalties, fines and expenses in connection with them), except if imposed on the overall net income of the ATCO.
35 Interpretation In this document:
(a) the singular includes the plural and vice versa;
(b) headings are for convenience only and do not alter the interpretation;
(c) if a word or phrase is given a defined meaning, any other part of speech or grammatical form of that word or phrase has a corresponding meaning;
(d) where the day on or by which any sum is payable or any act, matter or thing is to be done is a day other than a Business Day, that sum will be paid or that act, matter or thing will be done on the next Business Day in the same calendar month (if there is one) or the preceding Business Day (if there is not);
(e) terms defined in the PPSA have the same meaning when used in this document unless otherwise indicated;
(f) a reference to:
(i) this document includes any variation, novation or replacement of it;
(ii) the Client includes a reference to its authorised representatives, employees, agents and subcontractors and the Client’s executors, administrators, successors, substitutes, (including, without limitation, persons taking by novation) and assigns;
(iii) ATCO includes a reference to that person’s executors, administrators, successors, substitutes, (including, without limitation, persons taking by novation) and assigns; and
(iv) law means common law, principles of equity, and laws made by parliament, and a reference to laws made by parliament or any legislation includes regulations and other instruments under them, and consolidations, amendments, re-enactments or replacements of any of them).