Terms & Conditions

Pacific Crown Helicopters

1. Acknowledgement

    1.1 In accepting an offer or order confirmation or by sending a purchase order, confirms your acceptance of these General Terms and Conditions of Trade contained in this document.
    1.2 The Customer hereby acknowledges the terms and conditions of supply of goods or services by the Company on the terms and conditions contained in this document and any other accompanying additional terms and conditions.
    1.3 The Guarantor(s) hereby acknowledges and guarantees the performance of the Customer on all terms and conditions contained in this document.
    1.4 The Customer and Guarantor(s) hereby acknowledges that they have had the opportunity prior to the execution of this agreement to obtain independent legal advice as to its meaning and the implications of executing this document.

2. Interpretation

    2.1 In these terms and conditions:
      2.1.1 Words in the singular shall be construed so as to include the plural; and
      2.1.2 Words in the masculine gender shall be construed so as to include every other gender.

3. Definitions

    3.1 “Accession” to other goods means goods that are installed in, or affixed to, the other goods, unless both the accession and the other goods are required or permitted by the PPS Regulations to be described by serial number.
    3.2 “Act” or “the Act” means the Personal Property Securities Act 2009 (Cth).
    3.3 “Agreement” means the Agreement between the Company and the Customer for the supply of Goods, including:
      3.3.1 The Terms;
      3.3.2 Any Agreement provided to the Customer by the Company, whether it has been signed or not.
    3.4 “Business Day” means any day that banks are generally open for business in Queensland, but not a Saturday, Sunday or a public holiday, under the Holidays Act 1983 (QLD).
    3.5 “Company” or “the Company” means Pacific Crown Helicopters ACN 106 330 689 and includes each related entity, its successors and assigns.
    3.6 “Control” has the same meaning as defined in the Act.
    3.7 “Customer” refers to the persons, company, trustees of a trust, firm, organisation, partnership, corporation, government instrumentality (including the personal representative and permitted assigns and any person or corporation entitled or required by the law to administer the Customer’s affairs) or other entity that purchases Goods and/or Services from the Company, as identified in the Agreement.
    3.8 “Default Notice” means the manner and time an Event of Default is taken to happen in Clause 10.9.
    3.9 “Environment Laws” means any statute, policy directions or regulations made or issued by a regulatory body or government body regulating or otherwise relating to the environment, including without limitation the use or protection of the environment.
    3.10 “Event of Default” means an Event of Default in Clause 10.9.
    3.11 “Good” or “Goods” refers to all accessories, avionics, airframes, attachments, components, controls, engines, equipment, fuels, gear, handbooks, Helicopters, lubricants, manuals, materials, machines, merchandise, Motor Vehicles, plant, platforms, switches, wares, wiring, tools and articles of every description and includes packages, crates, cases and contents thereof of whatsoever kind purchased by the Customer.
    3.12 “GST” means the provision of Goods and Services Tax under the A New Tax System (Goods and Services Tax) Act 1999 (Cth).
    3.13 “Guarantor” or “Guarantors” refers to the Directors, Guarantors, Partners or Proprietors of the Customer.
    3.14 “Helicopters” means heavier-than-air machines (other than those used in military, customs or police services) supported in flight chiefly by the reactions of the air on one or more power-driven rotors on substantially vertical axes and which are type certified by the competent aviation authority to transport;
      3.14.1 at least two (2) persons including crew; or
      3.14.2 goods in excess of 450 kilograms, together with all installed, incorporated or attached accessories, parts and equipment (including rotors), and all data, manuals and records relating thereto.
    3.15 “Motor vehicle” refers to a car, tractor, trailer, truck, utility or any other property that:
      3.15.1 Has one or more motors with total power greater than 200W; or
      3.15.2 Capable of propelling the property to speeds of at least 10 km/h; or
      3.15.3 Capable of travelling at a speed greater than 10 km/h when towed or attached to a motor vehicle.
    3.16 “Perfected” has the same meaning as defined in the Act.
    3.17 “Possession” has the same meaning as defined in the Act.
    3.18 “PPS Lease” has the same meaning as defined in the Act.
    3.19 “PPSA” means the Personal Property Securities Act 2009 (Cth).
    3.20 “PPSR” means the Personal Property Securities Register established under the Act.
    3.21 “PPS Regulations” means the Personal Property Securities Regulations 2010.
    3.22 “Purchase Money Security Interest” has the same meaning as defined in the Act.
    3.23 “Receiver” has the same meaning as in Section 9 of the Corporations Act 2001 (Cth).
    3.24 “Registration” has the same meaning as defined in the Act.
    3.25 “Secured Good” or “Secured Goods” means all of the Customer’s present and future rights and interests in the Goods purchased or hired under the Agreement which is secured by Clause 10 and outlined in the Schedule or any Annexure to this Agreement.
    3.26 “Security Interest” has the same meaning as defined in the Act.
    3.27 “Services” means any duty or labour performed by the Company for the Customer.
    3.28 “Site” means the location where the Goods will primarily be located after delivery.
    3.29 “Terms” means the Pacific Crown Helicopters Terms and Conditions.

4. Guarantee

    4.1 The Guarantor(s) agree to be bound by the terms and conditions of this document as if they were the principal debtor. This is a continuing guarantee and shall be irrevocable until the Company has been paid all moneys owing by the Customer and/or Guarantor(s).
    4.2 The Guarantor(s) hereby jointly and severally guarantee payment to the Company, without any deduction or set off in law or in equity, of the price, taxes, duties and other imposts charged by the Company to the Customer for the supply of Goods and Services and the payment of any other moneys owing by the Customer to the Company now or in the future on any account whatsoever.
    4.3 As a separate and independent agreement, the Guarantor(s) agree to indemnify the Company against any losses, costs or damages of whatsoever nature and howsoever incurred by the Company as a result of:
      4.3.1 The Customer failing to pay the Company the moneys owing by the Customer to the Company; or
      4.3.2 The failure or default of the Customer in the performance of their covenants and obligations contained under this agreement or under any other agreement between the Company and the Customer.
    4.4 The Guarantor(s) agree this guarantee and indemnity is a continuing security and shall not be affected or in any way prejudiced by:
      4.4.1 The Company granting any extension of time to the Customer; or
      4.4.2 The Company refusing further credit to the Customer; or
      4.4.3 The Company varying the terms and conditions of the Customer’s trading account with the Company, whether with or without the Guarantor’s prior knowledge; or
      4.4.4 Any collateral or other security or guarantee now or hereafter held by the Company and the Guarantor(s) agree that the Company’s rights under this guarantee and indemnity shall not be merged, discharged or substituted in any such other security and guarantee, and shall not be discharged until the expiry of not less than twelve (12) months from the date of receipt of the last payment by the company from the Customer and/or Guarantor(s) in satisfaction of any monies due to the Company.

5. Goods and Services

    5.1 The Customer wishes to purchase Goods and/or Services from the Company.
    5.2 The Customer acknowledges that in all circumstances, the Company retains title to the Goods (even if the Customer goes into liquidation or becomes insolvent) and in no circumstances shall the Goods be deemed to be a fixture of the Customer’s premises, or property of the customer, until the purchase price for the Goods and/or Services is taken to be fully and finally paid in accordance with Clause 9.
    5.3 The Company shall ensure that all Goods are maintained in accordance with the manufacturer’s specifications.
    5.4 The Customer must store the Goods in a manner that complies with the requirements for their storage and/or as prescribed by the Company (if any).

6. Delivery Terms

    6.1 If the Company is requested to deliver or install the Goods, the Customer shall bear the cost of delivery of the Goods unless the Company and Customer otherwise agree.
    6.2 The Company shall make all reasonable efforts to have the Goods delivered to the Customer by the date agreed between the parties, but the Company shall not be liable for:
      6.2.1 Any failure to deliver, or delay in delivery, of the Goods for any reason; or
      6.2.2 Any damage to the Customer’s property or premises caused upon entering the premises to deliver the Goods.
    6.3 All Goods are at the Customer’s risk during transit and the Company’s liability for the Goods ceases from the time the Goods are loaded or delivered by the Company to any authorised third party carriers, agents or representatives consigned to the Customer.
    6.4 Acceptance:
      6.4.1 The Customer will inspect all Goods upon delivery and must give notice in accordance with Clause 7.1 if any Goods are damaged, wrongly supplied or not in accordance with the Agreement.
      6.4.2 Failure by the Customer to provide notice shall be deemed to constitute acceptance of the delivery of the Goods.
      6.4.3 The Customer hereby indemnifies the Company against any losses, costs or expenses incurred by the Company due to any failure of the Customer to accept the Goods at the time of delivery.
      6.4.4 Except as required by law and subject to Clause 7.1, the Company shall be under no obligation to accept the Goods returned for any reason, or to resupply the Goods, which are not satisfactory to the Customer for any reason.

7. Rejection and Return of Goods

    7.1 The Customer may reject any Goods, subject to complying with the provisions of this Clause 7.
    7.2 If any Goods are wrongly supplied or not in accordance with the Agreement, the Customer must notify the Company:
      7.2.1 By providing full particulars of the claim in writing within seven (7) days of receipt of the Goods; or
      7.2.2 Where there is visible damage to the Goods, by providing full particulars of the claim in writing within forty-eight (48) hours of receipt of the Goods; or
      7.2.3 Where the claim relates to non-delivery of the Goods, by providing full particulars of the claim in writing within fourteen (14) days of the agreed date of delivery of the Goods.
    7.3 The Company may dispute any claim made under this clause.
    7.4 Unless the Company and the Customer otherwise agree in writing, the Customer shall bear all costs of returning any Goods.
    7.5 The Customer agrees to keep the Goods until the Company can arrange the inspection or collection of the Goods.
    7.6 The Company reserves the right to refuse return of any such parts on the basis that they cannot be readily re-sold.

8. Charges

    8.1 Consumables and Trade Materials: The Customer shall be liable for all charges made for consumables and trade materials provided by the Company.
    8.2 Tax and Government Charges: The Customer shall be liable for any and all Stamp Duty, Hire Duty, GST and all other applicable taxes, duties, levies, penalties and Government charges imposed on the supply of the Goods and/or Services.
    8.3 Where the Customer claims an exemption from such payments, the Customer must furnish appropriate exemption certificates to the Company.
    8.4 Environment Levy: The Customer will pay the Environment Levy amount specified by the Company in the Agreement with consideration of any oil, grease or other environmental contaminants used, applied, or discarded in connection with the supply of the Goods.
    8.5 Credit Card Payments: All payments accepted by Credit Card will incur a surcharge of 2%.

9. Payment Terms

    9.1 All prices quoted are:
      9.1.1 In Australian Currency (or United States Currency where specifically quoted) and the Customer shall be liable for the price of all Goods and/or Services supplied on the order or agreement of any employee or agent of the Customer, whether or not such order was authorised by the Customer officially.
      9.1.2 Subject to GST, to be paid by the Customer in addition to the price unless appropriate documentation is provided to the Company by the Customer prior to the invoicing of Goods and/or Services.
      9.1.3 Current at the date of quotation but are subject to change without notice.
    9.2 Credit Facility: The Customer hereby agrees that the credit facility hereby applied for does not extend to any transaction and the Customer will not use the credit facility for any transaction which is or may be a “credit activity” as that expression is defined in the National Consumer Credit Protection Act 2009 (Cth).
      9.2.1 The Customer cannot use the credit facility until it receives notice in writing from the Company stating that the facility has been granted and until then all accounts from the Company shall be on a cash basis upon delivery of the Goods and/or completion of the Services.
      9.2.2 The Company may withdraw or vary the facility at any time without notice or the Company may from time to time or at any time increase or decrease the limit (if any) provided without notice to the Customer or Guarantor (if any).
      9.2.3 The maximum credit provided by the Company shall not exceed the limit as prescribed by the Customer in the credit application unless otherwise agreed to in writing by the Company.
    9.3 Deposit: For any quotes exceeding $10,000.00 plus GST, the Customer must pay 50% of the quote before the Company will arrange delivery or installation of the Goods and/or Services.
    9.4 Payment Due Date: The Customer must make a credit application, and is required to pay all fees, charges and costs that may become due and payable for the supply of the Goods within thirty (30) days of the invoice date, or within such other time period as notified by the Company in writing.
    9.5 All discrepancies must be queried within seven (7) days of the invoice date.
    9.6 Late Payment and Fees: Where a Customer does not pay the amount of the Tax Invoice on or before the due date, interest is payable on the unpaid Tax Invoice (after 30 days from the delivery date of this tax invoice). The current interest rate charged on unpaid Tax Invoices is the rate that is equal to the Cash Rate Target plus 2% as at the date of the Tax Invoice. The Cash Rate Target means the percentage (or maximum percentage) stated by the Reserve Bank of Australia as the Cash Rate Target.
    9.7 Any moneys paid by the Customer shall be firstly applied to payment of all outstanding interest (if any) and secondly in reduction of amounts charged for Goods and/or Services.
    9.8 Where moneys are received in reductions of amounts charged for Goods and/or Services, they shall be applied to indebtedness of Goods and/or Services which have been outstanding for the longest period such that the balance owing at any time shall represent Goods and/or Services most recently supplied and invoiced.
    9.9 Offset: The Company may set-off any credit owed to the Customer against any amount owing by the Customer to the Company.
    9.10 The Customer and Guarantor(s) agree that the certificate of the Company or any person authorised by the Company to give the same shall be conclusive evidence as to the amount owing to the Company by the Customer.
    9.11 Further to Clause 10.13, the Customer authorises the Company, its employees and agents to make any inquiries it deems necessary to investigate the credit worthiness of the Customer including inquiries with persons nominated as trade referees, bankers or other credit providers (“the Information Sources”). The Customer authorises the Information Sources to disclose to the Company information concerning the Customer as requested by the Company.
    9.12 The Customer authorises the Company to use the services of a Mercantile Agent.
    9.13 The Customer shall pay any expenses, costs or disbursements incurred by the Company in recovering any outstanding moneys, including debt collection, agency fees and legal fees.
    9.14 The Customer must notify the Company in writing if there is a variation to any of the information supplied or in the shareholding or ownership of the Customer (such conversion to or from a company or trust) or any material change in the Customer’s financial position.
    9.15 Unless notification of such variation is given and accepted in writing by the Company, the original Customer and those persons who signed as Guarantor(s) on this Agreement shall remain liable to the Company as though any Goods and/or Services supplied by the Company were supplied to the original Customer.

10. Security Over the Goods

    10.1 Grant of Security:
      10.1.1 The Company is a creditor of the Customer under the Agreement.
      10.1.2 The Customer and Guarantor(s) have agreed to grant a Security Interest in all of the Customer’s present and future rights and interests in the Secured Goods on the terms of the Agreement to secure payment of all monies which are or may become owing under this Agreement:
        10.1.2.1 Where relevant, the lease of the Goods under the Agreement gives rise to a security interest in the Goods in favour of Pacific Crown Helicopters; and
        10.1.2.2 Where relevant, the lease of the Goods under the Agreement gives rise to a Purchase Money Security Interest in the Goods in favour of Pacific Crown Helicopters, being a PPS Lease.
      10.1.3 If the Customer becomes entitled to or acquires further property in substitution for the Secured Goods then this further property shall form part of the Secured Goods under the Agreement.
      10.1.4 If the Company and the Customer terminate by agreement their mutual rights and obligations under the Agreement, AND provided the Customer has performed all relevant Covenants on its part THEN the Company must at the request and cost of the Customer, do all things necessary on its part to allow the Customer to procure a release of the Agreement, in respect of the Secured Goods to be recorded in the appropriate office, department, firm or agency responsible for the administration of the Act.
      10.1.5 At the request of the Company, the Customer agrees to do all acts and sign all documents submitted by the Company so as to allow the Company’s security interest to be registered and Perfected under the Agreement pursuant to the Act.
      10.1.6 Without limiting Clause 10.1.5 or where the Act perfects the Company’s security interest by force of the Act, the Customer will do all acts and sign all documents to ensure that where Perfection is achieved:
        10.1.6.1 By registration, the Company complete registration;
        10.1.6.2 By possession, the Company has possession;
        10.1.6.3 By control, the Company has control.
    10.2 Retention of Title:
      10.2.1 Title in the Goods does not pass to the Customer until the purchase price for the Goods is taken to be fully and finally paid in accordance with Clause 9.
      10.2.2 The Customer, during the continuance of the Agreement and until payment is made for the Goods and/or Services, must:
        10.2.2.1 Not transfer, assign, charge or part with possession or otherwise dispose of the Secured Goods or any interest in the Secured Goods without the Company’s previous written consent;
        10.2.2.2 Promptly furnish to the Company all information as it may require about the Secured Goods;
        10.2.2.3 Not create, assume or permit to subsist any encumbrance of any kind over any part of the Secured Goods to or in favour of any person other than the Company, without first obtaining the Company’s consent;
        10.2.2.4 Not sell, agree to sell or otherwise dispose of the Secured Goods or any part therein, without first obtaining the Company’s consent.
      10.2.3 If, notwithstanding Clause 10.2.1, the Customer sells or otherwise disposes of the Goods before the purchase price for the Goods has been fully and finally paid, it does so as the Company’s fiduciary agent and the proceeds of such sale or other disposal are also property of the Company and are held by the Customer on trust for the Company.
    10.3 Collateral Description:
      10.3.1 Secured Property means any interest of the Customer in all present and after-acquired property including its uncalled capital and called but unpaid capital from time to time and the uncalled premiums and called but unpaid premiums from time to time on its shares and any PPSA retention of title property of the Company.
    10.4 Registration:
      10.4.1 The Company may, at the Customer’s expense, register any Security Interest granted under this agreement on the PPSR in any manner it chooses.
      10.4.2 The Customer must provide the Company with any information it requires for the purposes of effecting such registration.
      10.4.3 The Customer agrees to take such steps as the Company reasonably requires to perfect and otherwise ensure the enforceability and ranking priority of any Security Interest granted to it under this Agreement, including by:
        10.4.3.1 Obtaining consents;
        10.4.3.2 Signing and producing documents;
        10.4.3.3 Getting documents completed and signed;
        10.4.3.4 Supplying information;
        10.4.3.5 Ensuring that the Security Interests are enforceable, perfected and otherwise effective;
        10.4.3.6 Enabling the Company to apply for any registration, or give any notification, in connection with a Security Interest created under this Agreement so that the Security Interest has the priority required by the Company (including, if that Security Interest is a Purchase Money Security Interest, registering that Security Interest on the PPSR as a Purchase Money Security Interest within the relevant time set out in Section 62 of the PPSA);
        10.4.3.7 Enabling the Company to exercise the Company’s rights in connection with the Security Interest; and
        10.4.3.8 Providing more effective security over the Secured Goods.
    10.5 Preserve Property:
      10.5.1 The Customer, during the continuance of the Agreement, must:
        10.5.1.1 Not transfer, assign, charge or part with possession or otherwise dispose of the Secured Goods or any interest in the Secured Goods without the Company’s previous written consent;
        10.5.1.2 Promptly furnish to the Company all information as it may require about the Secured Goods;
        10.5.1.3 Not create, assume or permit to subsist any encumbrance of any kind over any part of the Secured Goods to or in favour of any person other than the Company, without first obtaining the Company’s consent;
        10.5.1.4 Not sell, agree to sell or otherwise dispose of the Secured Goods or any part therein, without first obtaining the Company’s consent.
    10.6 Enforcement:
      10.6.1 To the extent that this Agreement gives rise to a Security Interest which secures payment or performance of an obligation, the parties agree that for the purposes of Section 115 of the PPSA, the following sections of the PPSA will not apply to any Collateral which is subject to that Security Interest:
        10.6.1.1 Section 95 (notice by Secured Party of removal of Accession);
        10.6.1.2 Section 96 (when a person with an interest in the whole may retain an Accession);
        10.6.1.3 Section 117 (obligations secured by interests in personal property and land);
        10.6.1.4 Section 118 (enforcing security interests in accordance with land law decisions);
        10.6.1.5 Section 120 (enforcement of liquid assets);
        10.6.1.6 Section 121(4) (notice by Secured Party of enforcement of Security Interest in liquid assets);
        10.6.1.7 Section 123 (right to seize collateral);
        10.6.1.8 Section 125 (obligation of Secured Party to dispose of or retain Collateral after seizure);
        10.6.1.9 Section 126 (apparent possession);
        10.6.1.10 Section 128 (secured party may dispose of collateral);
        10.6.1.11 Sections 129(2) and 129(3) (notice of disposal of collateral and conditions on purchase of collateral by secured party);
        10.6.1.12 Section 130 (notice of disposal), to the extent that it requires the Secured Party to give any notice to the Grantor;
        10.6.1.13 Section 132(3)(d) (contents of statement of account after disposal);
        10.6.1.14 Section 132(4) (statement of account if no disposal);
        10.6.1.15 Section 134 (retention of Collateral);
        10.6.1.16 Section 135 (notice by Secured Party of retention of Collateral);
        10.6.1.17 Section 142 (redemption of Collateral); and
        10.6.1.18 Section 143 (reinstatement of Security Agreement).
      10.6.2 The Company shall not be responsible for any loss which incurs or is occasioned by employing any of the powers contained within this Clause 10.6.
    10.7 The Customer may until but not after a Default Notice:
      10.7.1 Receive and use the Secured Goods;
      10.7.2 Attend meetings and exercise any rights in relation to the Secured Goods in any way which is not prejudicial to the Company’s security;
      10.7.3 Deal, sell or trade with the Secured Goods in the ordinary course of the Customer’s business, and for the Customer to retain the sale proceeds of such sale or dealing provided that the Customer adheres to the terms and conditions of the Agreement.
    10.8 The Customer shall after a Default Notice:
      10.8.1 Cause and permit the Secured Goods to be given to the Company. If any Goods are received by the Customer after a Default Notice, the Customer will hold it as agent for the benefit of the Company until it is given to the Company; and
      10.8.2 Only attend meetings with the approval of the Company and exercise any rights in relation to the Secured Goods with the approval and in accordance with the directions of the Company.
    10.9 Events of Default:
      10.9.1 An Event of Default occurs if:
        10.9.1.1 The Customer fails or neglects to perform, observe, fulfil or keep all or any of the covenants contained or implied on the part of the Customer;
        10.9.1.2 The Customer fails to make payment for Good/Services provided for by the Company, upon demand by the Company and fails to return to the Goods to the Company;
        10.9.1.3 The Customer fails to deliver the Goods the Company;
        10.9.1.4 The Customer becomes bankrupt, commits any act of bankruptcy or compounds with or makes any arrangement for the benefit of his creditors;
        10.9.1.5 The Customer suffers Judgment of any Court for the payment of money to an extent of not less than five hundred dollars ($500.00) or does or omits to do any act where the Secured Goods or any part may become liable to be seized, attached, distrained upon taken in execution or subjected to any other legal process;
        10.9.1.6 The Customer allows any distress or execution or other process of any Court or authority of an amount exceeding five hundred dollars ($500.00) is to be issued or sued out or levied against the Customer or any Guarantor or any of their collateral and is not stayed or satisfied within seven (7) days;
        10.9.1.7 Any cheque or bill of exchange drawn by the Customer payable to the Company or its Solicitors shall be dishonoured or not met on presentation for payment;
        10.9.1.8 The Customer without the prior written consent of the Company creates or attempts or purports to create any mortgage or charge over any part of the Secured Goods ranking or which might rank in priority to or pari passu with any securities;
        10.9.1.9 Where the Customer is a natural person, becomes lunatic or insane or a protected person within the meaning of any relevant legislation or dies;
        10.9.1.10 The Customer without the Company’s consent, assigns, transfers or parts with possession of the whole or any material part of the Secured Goods;
        10.9.1.11 The Customer has made any material representation or warranty, or answers the Company’s requisitions incorrectly or if any other representation warranty or statement made in writing by the Customer to the Company in connection with the making of the Agreement, is incorrect in any material respect when made;
        10.9.1.12 The Customer makes default under any charge or security in favour of any person other than the Company;
        10.9.1.13 The Customer has debts to any person which become due and payable prior to the date of maturity as a result of a default or are not paid when due;
        10.9.1.14 The Customer allows the Secured Goods to become a total loss;
        10.9.1.15 The Customer has any part of the Secured Goods confiscated or forfeited;
        10.9.1.16 The Customer attempts to avoid liability pursuant to the Agreement on the basis that the Agreement or any of the Secured Goods is or may be wholly or partially void, voidable or unenforceable;
        10.9.1.17 Where the Customer is a corporation:
          10.9.1.17.1 Appoints a liquidator, provisional liquidator or has appointed to it a receiver or manager;
          10.9.1.17.2 Has an application made against it to a Court for an order that the Customer be wound up;
          10.9.1.17.3 As a result of the operation of the Corporations Act 2001 (Cth), the Customer is taken to have failed to comply with a statutory demand;
          10.9.1.17.4 A voluntary administrator is appointed to the Customer.
      10.9.2 The occurrence of an Event of Default under the Agreement constitutes default of every item of the Secured Goods.
      10.9.3 A Default Notice must:
        10.9.3.1 Include a description of the Event of Default that the Company believes has taken place;
        10.9.3.2 Be signed and dated by the Company;
      10.9.4 A Default Notice is taken to be served on the Customer where the Company:
        10.9.4.1 Emails a Default Notice, the day the email is sent;
        10.9.4.2 Faxes a Default Notice, the day the facsimile is sent;
        10.9.4.3 Mails a Default Notice, two (2) Business Days after it is posted.
    10.10 Powers of the Company on Default:
      10.10.1 If an Event of Default occurs then it shall be lawful for the Company to exercise the powers and authorities herein contained and in particular:
        10.10.1.1 Treat as discharged all or any obligation arising from any agreement with the Customer.
        10.10.1.2 Retain any security given or monies paid by the Customer or available through the enforcement of any guarantee, security or bond and apply this in reduction of any sum which may be lawfully recovered by the Company.
        10.10.1.3 To take possession and remove any of the Secured Goods for which full payment has not been received;
        10.10.1.4 To take possession of and remove any property of the Customer which is in the possession or control of the Company; and the Customer authorises the Company to deal with such property in its sole discretion in order for the Company to recover its loss caused by Default of the Customer;
        10.10.1.5 To recover from the Customer on demand all expenses, payments and disbursements incurred by the Company in or about or incidental to the exercise by it of any of the powers aforesaid;
        10.10.1.6 To retain or remove and carry away any one or more of the Secured Goods by force or otherwise deal with any one or all of them as the Company may deem fit and to take on, lease or otherwise any land or premises which the Company may think necessary to the storage of or otherwise in connection with the Secured Goods;
        10.10.1.7 To make any sale or disposition of the Secured Goods (authorised hereby or by law) or any part thereof at such place or time, whether altogether or in lots, and for cash or otherwise;
        10.10.1.8 To recover from the Customer on demand all expenses, payments and disbursements incurred by the Company in or about or incidental to the exercise by it of any of the powers under this Clause 10.10.
        10.10.1.9 Where the Customer is a trustee:
          10.10.1.9.1 the Customer agrees to produce a stamped copy of the Trust Deed (with all amendments and variations) if and when requested by the Company);
          10.10.1.9.2 the Customer warrants that it has full power and authority for the benefit purposes and objects to the Trust to make this Deed on behalf of the Trust and that it shall be bound by the terms of this Deed both personally and as Trustee; and
          10.10.1.9.3 the Customer confirms that the Trustees shall be liable for the account and that in addition the assets of the Trust shall be available to meet payment of the account.
      10.10.2 The Company shall not be responsible for any loss which incurs or is occasioned by employing any of the powers contained within this Clause 10.10.
    10.11 Application of Moneys/Non Liability of Customer:
      10.11.1 The Company shall hold any receipts arising from any disposition of the Secured Goods, upon trust, to pay or reimburse the Company for all costs, charges and other expenses which are paid, expended, sustained or incurred by the Company incidental to fulfilling its rights under the Agreement.
      10.11.2 The non exercise of or delay in exercising any power or right of a party does not operate as a waiver of that power or right, nor does any single exercise of a power or right preclude any other or further exercise of it or the exercise of any other power or right.
      10.11.3 A power or right may only be waived in writing, signed by the party to be bound by the waiver.
      10.11.4 Any money, whether from the sale, disposal or otherwise of the Secured Goods, that remains unpaid shall be deemed to be an unsatisfied part of the obligations secured by the Agreement and bear interest accordingly.
    10.12 Receiver:
      10.12.1 At any time after an Event of Default, the Company may immediately appoint any person or persons to be a receiver of the Secured Goods (“the Receiver”) and the Receiver so appointed shall have the following powers:
        10.12.1.1 To take possession of the Secured Goods or any part thereof and to demand, call in, collect and recover all or any such collateral and the income and profits they produce;
        10.12.1.2 To carry on or concur in carrying on any business of the Customer conducted by the Customer with the Secured Goods and for that purpose to exercise all or any of the powers that the Customer could have exercised in the conduct of such business;
        10.12.1.3 To make any arrangement or compromise which he or they shall think expedient in the interest of the Company;
        10.12.1.4 To give valid receipts for all moneys;
        10.12.1.5 In the name and on behalf of the Customer to execute and do all assurances and things which he or they may consider necessary for giving complete effect to the provisions of the Agreement and generally to use the name of the Customer in the exercise of all or any of the powers hereby conferred.
      10.12.2 The Receiver so appointed as aforesaid shall not be answerable or accountable for any involuntary loss or happening in or about the exercise or attempted exercise of any powers hereby conferred nor for any more money than shall actually come into his or their hands nor for the neglect, default or dishonesty of any officer, servant, agent or auctioneer.
      10.12.3 Every such Receiver shall be deemed to be the agent of the Customer and the Customer shall be solely responsible for the acts and defaults of such Receiver.
      10.12.4 Any person paying money to or otherwise dealing with any person acting in the proposed exercise of any of the powers hereby conferred by this Clause 10.12 shall not be concerned to enquire whether any such person has been duly appointed Receiver or whether any case has happened to authorise any such person to act as such Receiver.
    10.13 Miscellaneous Covenants:
      10.13.1 The Company may make any demand (whether on its own behalf or by any manager, agent, solicitor or any other person on its behalf) verbally or in writing;
      10.13.2 Notwithstanding any settlement of any account or other matter or thing whatsoever this security shall be a continuing security until a final discharge has been executed by the Company and given to the Customer.
      10.13.3 The Company may at any time during the continuance of this security, without being liable for any loss, expend any money for the protection of the Secured Goods as the Company may consider necessary.
      10.13.4 All moneys so expended by the Company shall be included in the security of the Secured Goods and shall bear interest, which shall be payable on demand.
      10.13.5 If any judgment is given against the Customer or execution is issued against the Customer in any Court of Law, the Company may pay or satisfy, whether wholly or partially, such Judgment or Execution and the amount paid by the Company shall be included in this security, bear interest and be payable on demand.
      10.13.6 The Customer shall be at liberty to use and enjoy the Secured Goods without any interruption by the Company, unless:
        10.13.6.1 Default by the Customer in respect to the performance, observance or fulfilment of some or one of the covenants, proviso, conditions or agreements in the Agreement;
        10.13.6.2 The Customer expresses an intention to default to the Company, but that default is yet to happen, on the performance, observance or fulfilment of any of the terms of the Agreement;
        10.13.6.3 Any Event of Default has occurred which entitles the Company to enter and take possession of the Secured Goods;
        10.13.6.4 The Company sees fit to make demand, sue for or enter the Customer’s premises and take possession of the Secured Goods.
      10.13.7 That in addition to and concurrently with the powers given by the Agreement, the Company shall have the power of foreclosure and all other rights, remedies and powers of a mortgagee.
      10.13.8 If an Event of Default occurs, it shall be lawful for the Company to receive, hold, occupy, enjoy, take and have any part or parts of the Secured Goods without any lawful interruption or disturbance by the Customer or any other person.
    10.14 Power of Attorney:
      10.14.1 The Customer irrevocably appoints the Company as the attorney for the Customer:
        10.14.1.1 To demand, sue for, receive and give effectual discharges for the Secured Goods;
        10.14.1.2 To execute any document to effect the transfer, assignment or disposition of the Secured Goods for the purposes of exercising any rights, powers or authority of the Company under the Agreement;
        10.14.1.3 To conduct any legal proceedings in relation to the Secured Goods as effectually as the Customer could or might;
        10.14.1.4 To attend any meeting and exercise any rights attached to the Secured Goods as effectually as the Customer could or might;
        10.14.1.5 To complete, stamp or register any transfer of any of the Secured Goods in accordance with the Agreement;
        10.14.1.6 For any purpose from time to time, appoint any substitute, delegate or sub-attorney;
        10.14.1.7 To execute any document to Perfect the Company’s security interest pursuant to the Agreement in accordance with the Act.
    10.15 Customer to Advise of Legal Notice:
      10.15.1 The Customer will at all times during the term of the Agreement give written notice to the Company within twenty-four (24) hours of the receipt of any written notification received from any Court or Tribunal, or any legal representative of a creditor (whether secured or unsecured) or any claimant against the Customer and/or the Secured Goods.
      10.15.2 On receipt of the notice referred to Clause 10.15.1, the Company can exercise its absolute discretion as to making a determination whether an Event of Default has occurred.

11. Indemnities

    11.1 Subject to Clause 11.2 and except as expressly provided to the contrary in the Agreement, all terms, conditions, warranties, undertakings, inducements or representations whether expressed or implied, statutory or otherwise relating to the Company’s obligations under the Agreement are excluded.
    11.2 Where any legislation implies a term, condition or warranty in this Agreement and that legislation prohibits provisions in a contract, excluding or modifying the applications, exercise or liability under that term, condition or warranty, such term, condition or warranty shall be deemed to be included in the Terms provided that liability of the Company for breach of the term, condition or warranty is limited to (at the Company’s election) the repair or replacement of the Goods (or the cost of doing so) and in no event shall any liability for damages be greater than the price for purchasing the Goods and/or Services under the Agreement.
    11.3 Subject to Clause 11.2, the Company will not be under any liability to the Customer for consequential loss or damage (including loss of actual or anticipated profits or revenue, economic loss or loss suffered as a result of any claim or claims by third parties) in contract, tort under statute or otherwise from, or in relation to, the Goods, Services or the Agreement.
    11.4 The Customer is liable for and indemnifies the Company against all liability, claims, loss, costs, expenses (including, without limitation, legal fees, costs and disbursements on the higher of a full indemnity basis and a solicitor/client basis, determined without taxation, assessment of similar process and whether incurred or awarded against the Company and any environmental loss, cost, damage or expense) arising from or incurred in connection with the Customer’s use of the Goods or its breach of the Agreement.
    11.5 Each indemnity in this Agreement is a continuing obligation, separate and independent from the other obligations of the parties and survives termination, completion and expiration of this Agreement.
    11.6 It is not necessary for a party to incur expense or make any payment before enforcing a right conferred by this Agreement.
    11.7 The Customer agrees that it will pay on demand any amount as an indemnity in the Agreement.

12. Limitation of Liability

    12.1 All laws which must apply to the purchase of the Goods are incorporated into the Agreement.
    12.2 All terms, which may otherwise be implied, are excluded except as stated in the Agreement.
    12.3 To the extent permitted by law:
      12.3.1 The Company’s sole liability for any breach of the Agreement is limited to and shall be completely discharged by any one of the following, determined by the Company in its absolute discretion:
        12.3.1.1 The replacement of the Goods which are not in conformity with the Agreement; or
        12.3.1.2 The supply of equivalent Goods ordered in accordance with the Agreement; or
        12.3.1.3 The refund of the price of the Goods; and
      12.3.2 The Company shall not be liable to the Customer (and any party claiming through the Customer) for any claim made under, or in connection with, the Agreement, in tort, under statute, in equity or otherwise in respect of defects in the Goods, for the loss or damage to a person or property arising from, or caused by, such defects; and
      12.3.3 The Company shall not be liable for any indirect, special or consequential loss or damage of any nature whatsoever resulting from or caused in any way by the Goods; and
      12.3.4 All rights under the Terms are in addition to, and do not abrogate, limit or reduce any other rights that the Company may have.
    12.4 The Customer has responsibility for ensuring that the Goods are not used for any purpose for which they are not suitable.

13. Warranties

    13.1 The Customer agrees that it does not rely on the skill or judgment of the Company in relation to the suitability of any Goods and/or Services for a particular purpose unless it has indicated that purpose in writing to the Company and the Company has acknowledged that the Goods and/or Services will be fit that for purpose.
    13.2 To the extent permitted by law and except as provided in these Terms, all conditions, warranties and undertakings by the Company are expressly excluded.
    13.3 The Company shall not be liable for any loss or damage, whether direct or indirect, including consequential loss or damage arising out of any breach by or any negligence of the Company, its representatives, servants, agents or employees.

14. Termination

    14.1 The Company may terminate the Agreement in writing to the Customer with immediate effect, if:
      14.1.1 The Customer breaches any term of the Agreement; or
      14.1.2 The Customer becomes bankrupt or insolvent, executes a personal insolvency agreement, enters into liquidation, administration and receivership or ceases to carry on business; or
      14.1.3 An Event of Default occurs.
    14.2 The Company may terminate the Agreement for any other reason at any stage without notice.
    14.3 The right of termination is in addition to any other rights under the Agreement and does not execute any right or remedy under law or equity or the survival of other terms under the Agreement.

15. Recovery of Plant

    15.1 The Company shall take all steps necessary (including legal action) to recover the Goods, including entering the Customer’s premises to do so if:
      15.1.1 The Customer is in breach of the Agreement by way of an Event of Default or by any other means; or
      15.1.2 The Company has terminated the Agreement with the Customer pursuant to Clause 14.

16. Default

    16.1 The Customer will be in default if:
      16.1.1 The Customer breaches any provision of the Terms; or
      16.1.2 An Event of Default occurs; or
      16.1.3 Payment for the Goods and/or Services has not been received by the Company in accordance with Clause 9; or
      16.1.4 The Customer, being an individual, commits an act of bankruptcy; or
      16.1.5 The Customer, being a corporation, becomes insolvent within the meaning of Section 95A of the Corporations Act 2001 (Cth); and
      16.1.6 The Customer, being a trustee, does not have the full power and authority for the benefit purposes and objects of the Trust to make this Deed.
    16.2 If the Customer defaults, the Company may instigate any one or more of the following:
      16.2.1 Any or all of the powers contained in Clause 10.10; and/or
      16.2.2 Treat the whole of the Agreement as repudiated and sue for breach of contract; and/or
      16.2.3 Refuse to supply any further Goods and/or Services to the Customer; and/or
      16.2.4 Refuse to continue to provide the Goods and/or Services to the Customer; and/or
      16.2.5 Claim the return of any Goods in the Customer’s possession; and/or
      16.2.6 Without notice to the Customer, withdraw or vary any credit that the Company has provided to the Customer; and/or
      16.2.7 Without notice to the Customer, make all moneys owing by the Customer to the Company on any account immediately due and payable.
    16.3 Notwithstanding any provision in this Clause 16, the Company reserves all of its rights to claim any remedy available to it as a result of the Customer’s default.

17. Severance

    17.1 If any part of the Terms becomes void or unenforceable for any reason then that part will be severed with the intent that all remaining parts will continue to be in full force and effect and be unaffected by the severance or any other part.
    17.2 If there is any inconsistency between the terms and conditions of this Agreement and any subsequent agreement for the purchase or supply of Goods and/or services by the Company, any such subsequent agreement shall be read down to the extent necessary to give full force and effect to the terms and conditions of this Agreement.

18. Reliance

    18.1 The Customer acknowledges that they, neither the Company, or any person acting on the Company’s behalf, has made an representation or other inducement to it to enter into the Agreement and that it has not entered into the Agreement in reliance on any representation or inducements (including in relation to the use of the Goods) except for those representations or inducements contained herein.

19. Variation

    19.1 The Company may at any time, vary the Agreement by giving the Customer fourteen (14) days’ written notice of its intention to do so. The Customer and Company must agree with any other variations of the Terms in writing.
    19.2 The Company shall not be deemed to have waived any of the Terms of this Agreement or agreed to any variation thereof unless it has done so expressly in writing and signed by the Company.

20. Illegality

    20.1 Any provision of the Terms that is invalid, unenforceable or illegal must be read down to the extent necessary to avoid that effect.
    20.2 If that is not possible, that provision must be excluded from the Terms but only to the extent necessary to avoid that effect and all other provisions of the Terms continue to be valid and enforceable.

21. Notices

    21.1 Any document which is given to the Customer by the Company may be served or rendered if it is:
      21.1.1 Delivered or sent by pre-paid post to the address on the Agreement (or any other address notified to all parties in writing); or
      21.1.2 Sent by facsimile transmission to the recipient’s last known facsimile number; or
      21.1.3 Sent or delivered to the recipient in accordance with the Corporations Act 2001 (Cth) or any other legislation.
    21.2 Notice shall be deemed to have been served or rendered:
      21.2.1 If emailed, delivered or transmitted by facsimile; and
      21.2.2 On the day of transmission or delivery if the transmission, email or delivery occurred before 5.00pm on a Business Day; and
      21.2.3 If sent by pre-paid post, on the second Business Day after posting.
    21.3 For the purposes of this Clause 21, the address of the Customer is the address set out in the Agreement or such other address which a party may request pursuant to a written notice to the other party.

22. Governing Law

    22.1 The Agreement is governed by the laws of Queensland and except to the extent that the laws of the Commonwealth of Australia apply, the interpretation thereof and all disputes arising therefrom or connected therewith shall be governed in all respects by the laws of the State of Queensland and all such disputes shall be referred to a Court of competent jurisdiction in the said State unless the parties agree otherwise in writing.

23. Privacy

    23.1 The Customer agrees that for the purposes of the Privacy Act 1988 (Cth), the Company is a credit provider.
    23.2 The Customer consents to and agrees that the Company may obtain from a credit reporting agency, a credit report containing personal credit information about the Customer, in relation to credit provided or to be provided to the Customer by the Company.
    23.3 If the Customer does not provide all information required by the Company then the Company will not be able to supply the Goods and/or Services.
    23.4 Generally, the Customer has a right to access personal information that the Company holds about the Customer. The Company can be contacted on (07) 5438 1277 or fax (07) 5438 1299.
    23.5 The Company may use the Customer’s personal information to provide services to the Customer, to fulfil administrative functions associated with these services, to enter into contracts with the Customer or third parties, and for marketing and client relations.
    23.6 The Company may disclose the Customer’s information to the Company’s service providers and contractors from time to time to help provide and market the Company’s services to the Customer.
    23.7 The Customer consents to and authorises the Company to use and disclose the Customer’s personal information in accordance with Clause 10.

24. Force Majeure

    24.1 If the Company’s ability to perform its obligations under the Agreement is adversely affected by inclement weather or other acts of God, war, strike, trade dispute, damage to Goods, plant or machinery, shortage of any material or labour or any cause beyond the Company’s control, the Company may, if it chooses, terminate the Agreement or suspend it for a period determined by the Company by giving the Customer written notice.
    24.2 The Company shall not be liable for any loss, damage or liability which the Customer incurs for terminating under this Clause 24.
    24.3 The Customer must accept delivery of the Goods notwithstanding any delay in delivery caused by any of the events specified in this Clause 24.