MAXITRANS Convoy Freighter T Mark II Trailer hire
Highest Bid: $2,500.00
Overview of Prize:
6 month rental of 45ft Tautliner Trailer valued at $15,050 plus GST
Includes registration and servicing requirements, during loan period
Terms & Conditions– Trailer Loan – Revised Dec
In these Terms and Conditions:
Australian Consumer Law means the Australian Consumer Law set out in Schedule 2 of the Competition and Consumer Act 2010 (Cth) (as amended or replaced from time to time).
Borrower means the person named below as the hirer and includes any Related Entity of the Borrower who accepts MTA’s quotation for the supply of the Trailer or whose request for the Trailer is accepted by MTA.
Borrower’s Agent means a person duly authorised by the Borrower to sign the Loan/Rental Agreement and take delivery of the Trailer on behalf of the Borrower. The Agent may or may not be an employee of the Borrower.
Consequential Loss means:
(a) any Losses that cannot reasonably be considered to arise naturally from the event or circumstance giving rise to the loss;
(b) any and all consequential, special, indirect, exemplary or punitive Losses;
(c) economic loss of any kind, loss of contract, loss of goodwill, loss of profit or revenue, loss of opportunity, loss of production, loss of product, loss of or damage to reputation, production stoppage or loss of data, whether arising by way of indemnity, statute, contract, in tort (for negligence or otherwise), or on any other basis in Law or equity
Law means any statute, regulation, by-law, ordinance or subordinate legislation in force from time to time, the common law and equity, and any industry codes of conduct, each to the extent applicable to the provision of the Trailer or the party’s performance of its obligations under these Terms and Conditions. Loan/Rental Agreement means the Loan/Rental Agreement form jointly completed by MaxiTRANS and the Borrower, or the Borrower’s Agent, at the time of contracting to borrow the Trailer.Loss
means any loss, harm, damage, cost, liability, fine, penalty, liability to third parties or expense (including legal costs and expenses) whether arising by way of indemnity, statute, contract, in tort (for negligence or otherwise), or on any other basis in Law or equity.
MTA means MaxiTRANS Australia Pty Ltd ACN 081 151 699.
PPS Act means the Personal Property Securities Act 2009 (Cth) and any regulation made at any time under the PPS Act (each as amended and replaced from time to time).
PPS Register means the national online register established under the PPS Act.
Related Entity, in the case of a Borrower that is a company, means a related entity as defined in the Corporations Act 2001 (Cth) and, in the case of a Borrower that is an individual, means a company controlled by that individual or of which that individual is a director and each related entity as defined in the Corporations Act 2001 (Cth) of the companies.
Loan Period means the period of loan set out in the Schedule.
Schedule means the schedule to this agreement.
Terms and Conditions means the terms and conditions of hire set out in this document and includes any additional terms and conditions agreed in writing between MTA and the Borrower. Trailer means the Trailer described in the Schedule and includes all of its parts, components, installations and any affixed items of equipment, whether affixed permanently or temporarily.
Terms used in these Terms and Conditions which are defined in the PPS Act have the same meaning given to them in the PPS Act.
2.1 This agreement commences on the date specified in the Schedule and continues for the Loan Period, unless it is terminated earlier in accordance with condition 8 of these Terms and Conditions.
3. OWNERSHIP ANDREGISTRATION
3.1 The Borrower acknowledges that: (a) the Trailer is owned by and remains the sole property of MTA;
(b) nothing in this agreement gives the Borrower any ownership rights, lien, beneficial interest or security interest in the Trailer; and (c) the Borrower will not allow any encumbrance or security interest to be registered against any Trailer and the Borrower must not register any such encumbrance or security interest.
4.1 The Borrower must: (a) ensure that all reasonable care is taken to prevent damage to the Trailer or the loss or destruction of the Trailer; (b) ensure that the Trailer, in MTA’s reasonable opinion, is correctly and appropriately loaded;
(c) ensure that the Trailer is not used by any person other than the Borrower or its duly authorised employee or agent and is not driven in a careless, reckless or dangerous manner;
(d) ensure the use of the Trailer only by drivers who hold a current and valid Australian driving licence and are complying with all conditions of holding that licence;
(e) comply with all applicable Laws;
(f) ensure that the Trailer is not used for a purpose for which it would not normally be used except with the prior written consent of MTA;
(g) ensure that the Trailer remains in the possession and control of the Borrower;
(h) notify MTA immediately in writing of any change in the particulars of the Borrower;
(i) provide to MTA a report containing information regarding the location, condition, use and operation of the Trailer as MTA may reasonably request;
(j) not use or permit the use of the Trailer on a road other than one that is constructed as a sealed, gravel or dirt road;
(k) not make any modifications to or alter or attach anything to the Trailer; and
(l) grant MTA a licence to access the Borrower’s premises for the purpose of ensuring compliance by the Borrower with its obligations under these Terms and Conditions.
5. INDEMNITY ANDINSURANCE
6.1 The Borrower must indemnify MTA against all expenses, losses, damages and costs (on a solicitor and own client basis and whether incurred by or awarded against MTA) that MTA may sustain or incur as a result, whether directly or indirectly, of: (a) any breach of this agreement by the Borrower including, but not limited to, a breach in respect of which MTA exercises an express right to terminate this agreement;
(b) any loss of or damage to any property including the Trailer or injury to or death of any person caused by any act or omission of the Borrower or its officers, employees or agents;
(c) the Borrower or any third party claiming or attempting to claim any lien or security interest over the Trailer;
(d) any disclaimer of the insurance of the Trailer for any reason other than for a breach or default for which MTA is solely responsible;
(e) any confiscation or acquisition of the Trailer by any Government or other authority at any time during the Loan Period; or
(f) any issue of an infringement notice, fine or other penalty against the Trailer by a Government or other authority at any time during the Loan Period.
5.2 Unless otherwise agreed by MTA under condition 5.3, the Borrower must take out and maintain a policy of insurance for the Loan Period naming MTA as the insured and covering the Trailer for full replacement value in case of accident and theft and will be liable for any payment of excess arising out of a claim made against the policy. The Borrower acknowledges that MTA will be entitled to the proceeds of any claim made under the policy.
5.3 MTA may, at its discretion, take out a policy of insurance covering the Trailer in case of accident and theft and the Borrower will be liable for any payment of excess arising out of a claim made against the policy and/or any amount of loss below the amount of the deductible under that policy.
7.1 The Borrower: (a) must keep and maintain the Trailer, including tyres, cleanliness and overall roadworthiness, in good working condition and repair, save for normal wear and tear and will only have maintenance or repair work conducted by MTA or a repairer approved by MTA;
(b) will make the Trailer available for testing or inspection by MTA at MTA’s request at any time during the Loan Period and, if required by MTA, will deliver the Trailer to a depot or agent nominated by MTA;
(c) must immediately provide MTA with full details in writing of any damage, mechanical difficulty or accident occurring in relation to the Trailer and will provide any further information as MTA requests; and
(d) will not be entitled to recover from MTA any sum by reason of any delay, inconvenience or loss of any kind due to any accident, breakdown or defect in the Trailer or for any other cause whatever.
7.2 In accordance with the Loan/Rental Agreement, either MTA or the Borrower will pay for all periodic repairs and maintenance, including tyre repair/replacement, of the Trailer conducted by MTA or a repairer approved by MTA during the Loan Period, which MTA at its sole discretion deems necessary. This Condition will not require MTA to pay for any repairs or maintenance, which are required as a result of a breach by the Borrower of its obligations under this agreement.
7.1 The Borrower must on or before the expiration of the Loan Period or on termination by MTA return the Trailer to the location specified on the Loan/Rental Agreement in the same condition as it was at the commencement of the Loan Period, reasonable wear and tear excepted.
7.2 If the Borrower does not return the Trailer as required by condition
(a) MTA, or its nominated agent, will be entitled to enter the premises where the Trailer is held and repossess the Trailer and the Borrower grants MTA or its nominated agent a licence for access to the Borrower’s premises for this purpose. Repossession of the Trailer will not prejudice any other right or remedy of MTA; and
7.1 within 24 hours of the expiration of the Loan Period or termination by MTA of this agreement: (b) the Loan Period is deemed to be extended until the time at which the Trailer is returned to or repossessed by MTA and the Borrower will continue to pay MTA the Loan Amount until the Trailer has been returned to or repossessed by MTA and MTA is authorised to charge or debit any additional Loan Amount payable for the extended Loan Period in accordance with the payment
details specified in the Schedule.
8.1 MTA may terminate this agreement or suspend any further supply of the Trailer: (a) at any time by giving the Borrower reasonable notice in writing of its intention to do so; or (b) with immediate effect if: (i) the Borrower breaches any of these Terms and Conditions;
(ii) in MTA’s opinion the Borrower acts or behaves in a manner which is likely to prejudice or affect the interest of MTA in the Trailer; or
(iii) the Borrower ceases to carry on business, is unable to pay its debts as they become due, is presented with a winding-up petition or if any step is taken to appoint a receiver, receiver and manager, a trustee in bankruptcy, a provisional liquidator, a liquidator, or an administrator to the Borrower’s assets, operations or business.
8.2 Termination or suspension of thisagreement does not affect any accrued rights or remedies of MTA.
9.1 In this condition 9, a word or expression defined in the A New Tax System (Goods and Services Tax) Act 1999 (Cth) has the meaning given to it in that act.
9.2 If a party makes a supply under or in connection with this agreement in respect of which GST is payable, the consideration for the supply but for the application of this condition 9.2 (GST exclusive consideration) is increased by an amount equal to the GST exclusive consideration multiplied by the rate of GST prevailing at the time the supply is made.
9.3 If a party must reimburse or indemnify another party for a loss, cost or expense, the amount to be reimbursed or indemnified is first reduced by any input tax credit the other party is entitled to for the loss, cost or expense, and then increased in accordance with condition 9.2.
9.4 Any consideration to be paid or provided for a supply made under or in connection with this agreement, unless specifically described in this agreement as GST inclusive, does not include an amount on account of GST.
10. EXCLUSIONS ANDLIMITATIONS
10.1 Nothing in these Terms and Conditions operates to exclude, restrict or modify the application of any provision, condition or warranty, the exercise of any right or remedy, or the imposition of any liability under the Australian Consumer Law or any other statute, where to do so would contravene that statute, or cause any part of this condition to be void (Non-excludable Obligations).
10.2 Except in relation to Non-excludable Obligations, all conditions, warranties, guarantees, rights, remedies, liabilities and other terms implied by statute, custom or the common law are excluded from these Terms and Conditions.
10.3 Except in relation to Non-excludable Obligations, the Borrower agrees on its own behalf and on behalf of each of its Related Entities (Borrower Group) that MTA will have no liability to any member of the Borrower Group for any Loss suffered or incurred by a member of the Borrower Group or any of their respective customers, officers, employees, agents or representatives arising under or in any way in connection with the supply, loan or use of the Trailer..
10.4The Borrower agrees on its own behalf andon behalf of each member of the Borrower Group that, notwithstanding any otherprovision of this agreement, MTA will have no liability to any member of theBorrower Group for any Consequential Loss suffered or incurred by a member ofthe Borrower Group or any of their respective customers, officers, employees,agents or representatives arising under or in any way in connection with thesupply, loan or use of the Trailer.
10.5 Except for goods or services of a kindordinarily acquired for personal, domestic or household use or consumption,MTA’s liability to the Borrower for a failure to comply with any Non-excludable Obligation (other than a guarantee as to title, encumbrances or quiet possession conferred by the Australian Consumer Law) is limited to the cost of repairing or resupplying theTrailer.
The parties agree to be bound by all applicable Australian privacy legislation. MTA may use and disclose personal information of the Borrower or any of the Borrower’s directors, officers, principal, guarantors, employees or agents for the purposes of registering and amending financing statements under the PPS Act.
12. PPSACT 12.1 The Borrower agrees: (a) at MTA’s request, to promptly do all things (including signing any documents) and provide all assistance and information necessary to ensure that MTA has a perfected first ranking security interest enforceable against third parties in the Trailer supplied by MTA; and (b) that MTA may register a financing statement or financing change statement at the Borrower’s cost and do anything else required to perfect its security interest in the Trailer granted under these Terms and Conditions.
12.2 To the extent permitted by law, the Borrower waives its right to receive notice from MTA of any verification statement.
12.3 The following provisions of the PPS Act do not apply: section 95 (notice of removal of accession); subsection 121(4) (enforcement of liquid assets); section 125 (obligation to dispose of or retain collateral); section 130 (notice of disposal); paragraph 132(3)(d) (contents of statement of account); subsection 132(4) (statement of account if no disposal); section 135 (notice of retention); section 142 (redemption of collateral); and section 143 (reinstatement of security agreement).
12.4 To the extent permitted by law, the Borrower will indemnify MTA on demand, for all costs and expenses incurred in connection with registering or maintaining a financing statement or financing change statement relating to the security interest created by these Terms and Conditions.
12.5 MTA reserves all rights and powers it may have in addition to those conferred under the PPS Act.
12.6 The Borrower must not create, or permit to be created, any security interest over, or respect of its rights in, the Trailer (other than that created under these Terms and Conditions) including any replacement part or other item that is incorporated into or attached to Trailer, and must not change its name without notifying MTA at least 10 business days prior to doing so.
12.7 Despite condition 12.7, if the Borrower permits a security interest to be registered over the Trailer, the Borrower must do, at its own expense, everything reasonably necessary to remove the security interest from the PPS Register.
13.1 MTA may sub-contract the supply or delivery of the Trailer.
13.2 No waiver by MTA of any breach of these terms and Conditions by the Borrower will be considered as a waiver of any subsequent breach of the same or any other provision. A waiver of a right, power or remedy must be in writing and signed by the party giving the waiver.
13.3 A term or part of a term of these Terms and Conditions that is illegal or unenforceable may be severed from these Terms and Conditions and the remaining terms or parts of the terms of these Terms and Conditions continue in force.
13.4 The Borrower must not assign these Terms and Conditions, or any rights under these Terms and Conditions, without the prior written consent of MTA.
13.5 In the event of any inconsistency between the terms set out in these Terms and Conditions and the terms set out in the Schedule, the terms set out in the Schedule will prevail.
13.6 These Terms and Conditions are governed by the law applicable in Victoria and each party irrevocably and unconditionally submits to the non-exclusive jurisdiction of the courts of Victoria.
I/we agree to be bound solely by these Terms and Conditions and I/we further agree that any terms and conditions of loan that may be incorporated in any order, acceptance of quotation or any other document delivered by me/us, will unless those Terms and Conditions are agreed to in writing by MTA’s duly authorised
representative, have no legal effect. I/we warrant that I/we have all necessary approvals and authorisations to execute these Terms and Conditions for and on behalf of the Borrower.