METSEL PTY LTD – CONDITIONS OF SALE

  1. Interpretation

Unless the context deems otherwise, in these Conditions of Sale:

  1. Act of Default means:
    1. the Customer breaches the Contract;
    2. the Customer suspends or ceases to carry on all or substantially the whole of its business;
  • the Customer is or becomes unable to pay its debts as and when they fall due or is otherwise presumed to be insolvent by the law;
  1. a judgement against the Customer for the payment of monies remains unsatisfied for seven days;
  2. the Customer suspends or threatens to suspend payment of its debts generally;
  3. the making of an application or the making of any order, or the passing of any resolution, for winding up or the bankruptcy of the Customer other than where the application or order (as the case may be) is set aside within 14 days;
  • the appointment of a receiver or a receiver and manager or other insolvency official to the whole or a substantial part of the property or assets of the Customer;
  • the entry by the Customer into any compromise or arrangement with creditors; or
  1. any event occurs with respect to the Customer that has a similar effect to the events mentioned in Clause 1.a.iii to 1.1.a.viii.
  1. Conditions of Hire means the document entitled, “METSEL PTY LTD CONDITIONS OF HIRE”.
  2. Conditions of Sale means this document entitled, “METSEL PTY LTD – CONDITIONS OF SALE”.
  3. Consideration means the amounts payable by the Customer to Metsel in consideration for the supply of Goods as set out in clause a.
  4. Contract means the contract for the supply of Goods by Metsel to the Customer as set out in clause 4.
  5. Customer means the person described as “Customer” in the Quote.
  6. Due Date means the date that the Consideration is payable as set out in clause c.
  7. Goods mean any goods to be supplied by Metsel to the Customer pursuant to the Contract.
  8. Instalment means each and every constituent part of the Goods to be supplied by Metsel pursuant to a Contract whereby the Goods are to be supplied in parts, with each part to be supplied on a different date or to a different location.
  9. Invoice means a tax invoice issued by Metsel to the Customer for Goods supplied under the Contract as set out in clause b.
  10. Metsel means Metsel Pty Ltd ACN 614 056 889.
  11. Offer means the offer by the Customer to Metsel for the supply by Metsel of Goods to the Customer as set out in clause a.
  12. Silo means the silo (if any) in which the Goods are delivered.
  13. Site means the Customer’s nominated location for the delivery of Goods or Silos.
  14. Quote means the invitation to treat which Metsel provides to the Customer which sets out the terms Metsel will be willing to consider in an Offer made to it by the Customer for the supply of Goods and Silos as set out in clause 2.
  15. No rule of construction will apply to a clause to the disadvantage of a party merely because that party put forward the clause or would otherwise benefit from it.
  16. A reference to:
    1. a person includes a partnership, joint venture, unincorporated association, corporation and a government or statutory body or authority; and
    2. a person includes the person’s executors, administrators, legal personal representatives, successors, assigns and persons substituted by novation.
  17. Quote
    1. On the request of a Customer, Metsel may provide a Quote to the Customer which will be deemed to incorporate the terms set out in the following documents:
      1. the document entitled, “Quotation”;
      2. these Conditions of Sale;
  • if applicable, the Conditions of Hire; and
  1. if applicable, the documents providing for any credit account held by the Customer with Metsel.
  1. For the avoidance of doubt, the Quote:
    1. is an invitation to treat by Metsel on the terms set out in the Quote and has no binding effect on the parties until the Contract is formed; and
    2. does not constitute an offer to supply Goods on the terms set out in the Quote and cannot be accepted by the Customer.
  2. Offer
    1. The Customer may present Metsel with an offer for it to supply the Customer with Goods in accordance with the terms set out in the Quote by providing an executed Quote to Metsel (Offer).
    2. Metsel will consider all Offers that are presented to Metsel by the Customer within 1 month of the Offer’s issue date. Notwithstanding this, Metsel is under no obligation to accept any Offer.
  3. Contract

Upon Metsel advising the Customer that it agrees to supply the Goods in accordance with the terms of the Offer, or words to that effect, a contract will be formed between the Customer and Metsel for the supply of Goods on the terms set out in the Offer subject to any variations agreed between the parties in relation to the same (Contract).

  1. Invoice and payment
    1. In consideration of Metsel supplying the Goods to the Customer, the Customer agrees to pay Metsel the amounts set out in the Contract (Consideration) upon the issue of an Invoice by Metsel to the Customer.
    2. Metsel may issue an invoice for the Goods to be supplied under the Contract (Invoice):
      1. if the Goods are to be supplied in one single delivery, for the full Consideration upon the Contract being formed pursuant to clause 4;
      2. if the Contract requires Metsel to deliver Goods in Instalments, on each date that an Instalment is delivered for that part of the Consideration that the Instalment represents; or
  • if the Goods are to be collected by the Customer pursuant to clause c and an Invoice has not already been issued in relation to the same, then upon the deemed delivery of those Goods pursuant to clause 6.c.iii.
  1. The Consideration must be paid on or before the earlier of:
    1. the date specified on the Invoice; or
    2. the date the Goods are delivered

(Due Date).

  1. The Customer agrees to pay Metsel interest of 7.5% per annum on all overdue Invoices.
  1. Delivery of Goods and Silos
    1. Metsel will deliver the Goods and Silos to the Site at the time and date that is specified in the Contract or if the Contract requires Metsel to deliver Goods and Silos on multiple dates and times, at those dates and times.
    2. The Customer warrants that suitable and safe access to the Site will be provided to Metsel, its employees and agents to enable them to deliver the Goods and Silos to the Site at the delivery dates and times set out in the Contract or otherwise agreed between the parties.
    3. If:
      1. Metsel is unable to deliver the Goods and Silos to the Site because there is no suitable and safe access to the Site at the agreed delivery dates and times, to be determined at Metsel’s sole discretion; and
      2. the Customer is unable to provide suitable and safe access to the Site for delivery within 48 hours after the first attempted delivery (Redelivery Period),

then:

  • the Goods and Silos shall be deemed to be delivered on the expiry of the Redelivery Period;
  1. Metsel is no longer required to deliver the Goods and Silos and the Customer agrees to collect the Goods and Silos from Metsel at a date and location to be agreed with Metsel prior to collection;
  2. Metsel shall store the Goods and Silos until the Customer collects the Goods and Silos; and
  3. the Customer agrees to pay Metsel all costs and expenses in relation to the storage of the Goods and Silos and such costs and expenses may form a part of an Invoice issued by Metsel.
  1. Access to Site and accommodation of Silos
    1. The Customer warrants that suitable and safe access to the Site will be provided to Metsel, its employees and agents to enable them to deliver the Goods and Silos to the Site and to collect the Silos from the Site at the dates and times set out in the Contract or otherwise agreed between the parties.
    2. If the Goods are to be delivered in Silos, the Customer acknowledges that Metsel has made no warranties or representations about the suitability of the Silos for the Site and agrees and warrants that the Site can safely and suitably accommodate and support the Silos without modification to the Silos.
  2. Title to Silos

Metsel holds all the rights, title and interest in the Silos at all times and the Customer’s use and possession of them must be pursuant to the Conditions of Hire.

  1. Passing of risk and title
    1. Risk of damage to or loss of the Goods passes to the Customer on delivery, including deemed delivery under clause c.iii.
    2. Title in the Goods does not pass to the Customer until:
      1. Metsel receives all amounts due and payable by the Customer to Metsel, including all those amounts due and payable under Invoices issued, in cash or cleared funds; and
      2. in relation to Goods delivered in Silos, the Goods have been transferred from the Silo.
    3. Where title to the Goods remains with Metsel, the Customer:
      1. will not be entitled to use, remove, dispose of, transfer or otherwise deal with such Goods after the shelf life of the Goods has passed;
      2. must not remove, deface or obscure any identifying mark or packaging on or relating to the Goods (in the case of bagged Goods); and
  • must keep them insured against all risks for their full price from the date of delivery.
  1. For the avoidance of doubt, the Customer is required to pay for the Goods ordered even if they are never transferred from the Silo and title never passes to the Customer.
  1. Breach

If the Customer commits an Act of Default, then:

  1. all sums owed by the Customer in respect of the Goods will be immediately due and payable; and
  2. Metsel may:
    1. suspend all further supply of Goods, whether in Instalments or otherwise;
    2. treat all outstanding orders as cancelled;
  • terminate the Contract and all other contracts with the Customer and claim damages for any resulting loss incurred; and
  1. take possession of any Goods to which title has not passed to the Customer. To give effect to this, the Customer grants Metsel with an irrevocable licence to enter upon the Site to take possession of any Goods.
  1. Legal costs

The Customer agrees to pay, on an indemnity basis, all legal and enforcement costs, disbursements and expenses incurred in and incidental to any failure or default by the Customer in observing or performing its obligations under the Contract, including any Act of Default.

  1. Variations
    1. Subject clauses 12 and b.iii, this Contract may only be varied or cancelled by written agreement between the parties and in relation to Metsel, must be executed by its Chief Executive Officer.
    2. Metsel may, in its absolute discretion:
      1. if required by law, alter the Goods or amend the specifications of the Goods;
      2. amend the quantity of the Goods to be delivered under the Contract by up to 10%;
  • increase the price of the Goods to reflect increases due to:
    1. cost increases to Metsel that is beyond the control of Metsel including labour costs;
    2. changes in delivery dates, quantities or specification of the Goods requested by the Customer; or
    3. any delay caused by the Customer.
  1. If Metsel amends the quantity of the Goods to be delivered under clause b.ii, it will make a pro rata adjustment to the Invoice issued in respect of those Goods as follows:
    1. if the quantity of Goods delivered is less than the quantity of Goods specified in the Contract, the Invoice shall be reduced by the proportion that is referable to the reduced quantity of Goods delivered; and
    2. if the quantity of Goods delivered is more than the quantity of Goods specified in the Contract, the Invoice shall be increased by the proportion that is referable to the increased quantity of Goods delivered.
  2. If Metsel increases the price of the Goods in accordance with clause b.iii.A, then the Customer may cancel the Contract within seven days of the Customer receiving from Metsel notice of the price increase.
  1. Security
    1. The Customer acknowledges that clause b constitutes a Purchase Money Security Interest under the Personal Property Securities Act 2009 (Cth) (PPSA).
    2. In consideration of Metsel agreeing to supply the Goods to the Customer, the Customer charges all of its present and after acquired property as security for the performance of the Customer’s obligations under the Contract, including its obligation to pay the Consideration, and consents to Metsel:
      1. lodging a caveat or caveats over all its present or after-acquired real property; and
      2. registering a security interest (in the form of a general security agreement) on the Personal Property Securities Register as defined under the PPSA in relation to any security interest contemplated or constituted by the Contract; and
  • registering a specific security interest agreement as defined in the PPSA over any specific property which the Customer has agreed in writing with Metsel to be charged.
  1. Customer’s rights to refuse Goods
    1. Subject to the Customer’s rights under the Australian Consumer Law, Metsel will not replace, repair or refund the cost of any Good except where:
      1. there is a defect in the quality or condition of the Goods delivered; or
      2. the Goods delivered do not correspond with the general specifications specified under the Contract

(Faulty Goods).

  1. Claims the Customer makes to Metsel to replace, repair or refund the cost of any Good that the Customer alleges to be Faulty Goods will only be valid and considered if:
    1. they are in writing providing adequate details for why the Goods are Faulty Goods;
    2. made within 7 days of the Goods being delivered to you; and
  • the Customer has paid all Invoices due and payable.
  1. Without limiting clause a, the Customer agrees that it is not entitled to refuse the Goods or any Instalment solely because:
    1. the Goods were not delivered at the specified date and time;
    2. the quantity of the Goods delivered were different to the quantity of Goods to be delivered under the Contract; or
  • any previous Instalment was rejected pursuant to this clause 14.

 

 

  1. Force Majeure
    1. Any delays in or failure of performance by Metsel shall not constitute a breach of the Contract if and to the extent such delays or failures of performance are caused by occurrences which are unforeseen at the time the Contract was entered into, are unable to prevent and are beyond the control of Metsel including but not limited to:
      1. default of Metsel’s suppliers or subcontractors;
      2. acts of God;
  • expropriation or confiscation of facilities;
  1. compliance with any order or request of any governmental authority;
  2. act of war or rebellion or sabotage and resulting damage;
  3. unavoidable fires, floods, explosions, or accidents; or
  • riots, strikes or other industrial action

(Force Majeure Event).

  1. If Metsel is wholly or partially unable to perform its obligations under the Contract because of a Force Majeure Event then, as soon as reasonably practicable after the Force Majeure Event arises, Metsel must notify the Customer of:
    1. the extent to which Metsel is unable to perform its obligations under the Contract;
    2. the steps Metsel is taking to mitigate, minimise or manage the adverse effects of the Force Majeure Event on the performance of its obligations under the Contract; and
  • an estimate of any additional cost, time or resources required by Metsel to enable it to re-commence complete performance of its obligations under the Contract.
  1. Until Metsel can re-commence complete performance of all of its obligations in accordance with the Contract, Metsel will continue to perform its other obligations under the Contract that remain unaffected by the Force Majeure Event to the extent reasonably practicable.
  2. Metsel may terminate the Contract immediately by notice in writing if:
    1. the delay arising directly from the Force Majeure Event continues or is likely to continue for more than 60 days from the date it is first notified under clause b; or
    2. in any case, if Metsel determines in its absolute discretion that it is unable to perform its obligations under the Contract.
  3. Liability
    1. Metsel shall not be liable for any indirect or consequential loss arising from and in connection with the supply of Goods under the Contract including:
      1. loss of profits;
      2. loss of production;
  • loss of revenue;
  1. loss of use;
  2. loss of contract;
  3. loss of goodwill; or
  • loss of opportunity,

whether or not that loss or damage was caused by an act, omission or default of Metsel or its agents, arising from:

  • the delivery of the Goods and Silos to the Site;
  1. the accommodation and collection of the Silos from the Site; or
  2. any delay in delivering the Goods and Silos to the Site.
  1. The maximum liability of Metsel for any reason, whether arising in common law, tort (including negligence), contract, pursuant to statute or any other cause of action, shall not exceed the Consideration.
  1. Severance

If any part of the Contract is or becomes void or unenforceable, that part is or will be severed from the Contract to the extent that all parts that are not or do not become void or unenforceable remain in full force and in effect and are unaffected by that severance.

  1. Notices
    1. In addition to any lawful means, a notice may be given by:
      1. being personally served on a party;
      2. being left at the party’s current address for service;
  • being sent to the party’s current address for service; or
  1. emailing to a party’s current email address for service.
  1. If a communication is given by:
    1. post it is taken as received if posted within Australia to an Australian address three business days (in the place of receipt) after posting and in any other case five business days (in the place of receipt) after posting; or
    2. email, that communication is taken to be received at the time and date recorded on the send confirmation unless an undeliverable notice is received from the sender’s email server.
  2. Governing law
    1. The Contract is governed by the laws of Western Australia and if applicable, the Commonwealth of Australia.
    2. Metsel and the Customer irrevocably submits to the non-exclusive jurisdiction to the courts of Western Australia and if applicable, the Commonwealth of Australia.

 

 

METSEL PTY LTD – CONDITIONS OF HIRE

  1. Interpretation

Unless the context deems otherwise, in these Conditions of Hire:

  1. Act of Default means:
    1. the Customer causes the Equipment to be damaged or lost;
    2. the Customer breaches the Contract, including failing to pay any Rent;
  • if Metsel is dissatisfied with the manner that the Equipment has been erected or the condition of the Equipment after it inspects the Equipment pursuant to clause 14;
  1. a judgement against the Customer for the payment of monies remains unsatisfied for seven days;
  2. the Customer suspends or ceases to carry on all or substantially the whole of its business;
  3. the Customer is or becomes unable to pay its debts as and when they fall due or is otherwise presumed to be insolvent by the law;
  • the Customer suspends or threatens to suspend payment of its debts generally;
  • the making of an application or the making of any order, or the passing of any resolution, for winding up or the bankruptcy of the Customer other than where the application or order (as the case may be) is set aside within 14 days;
  1. the appointment of a receiver or a receiver and manager or other insolvency official to the whole or a substantial part of the property or assets of the Customer;
  2. the entry by the Customer into any compromise or arrangement with creditors; or
  3. any event occurs with respect to the Customer that has a similar effect to the events mentioned in Clause 1.a.vi to 1.1.a.x.
  1. Conditions of Hire means this document entitled, “METSEL PTY LTD CONDITIONS OF HIRE”.
  2. Conditions of Sale means the document entitled, “METSEL PTY LTD – CONDITIONS OF SALE”.
  3. Contract means the contract for the hire of Equipment by Metsel to the Customer as set out in clause 4.
  4. Customer means the person described as “Customer” in the Quote.
  5. Deposit means the security deposit to be paid by the Customer to Metsel as set out in clause 5, the amount of which is provided for in the Contract.
  6. Due Date means the date that the Rent and other charges relating to the hire of the Equipment is payable as set out in clause d.
  7. Equipment means any silos and other equipment hired by the Hirer together with any accessories, replacements, renewals or additions to the same.
  8. Goods mean any goods to be supplied by Metsel to the Customer pursuant to the Contract.
  9. Invoice means a tax invoice issued by Metsel to the Customer for the hire of the Equipment under the Contract as set out in clause c.
  10. Metsel means Metsel Pty Ltd ACN 614 056 889.
  11. Offer means the offer by the Customer to Metsel for the hire of Equipment as set out in clause a.
  12. Rent means the rent payable for the hire of the Equipment at the rates specified in the Contract in addition to any other charges relating to the same as provided for pursuant to clause a.
  13. Site means the Customer’s nominated location for the delivery of the Equipment.
  14. Termination Notice means the written notice provided by the Customer to Metsel terminating this Contract as set out in clause a.
  15. Quote means the invitation to treat which Metsel provides to the Customer which sets out the terms Metsel will be willing to consider in an Offer made to it by the Customer for the hire of the Equipment as set out in clause 2.
  16. No rule of construction will apply to a clause to the disadvantage of a party merely because that party put forward the clause or would otherwise benefit from it.
  17. A reference to:
    1. a person includes a partnership, joint venture, unincorporated association, corporation and a government or statutory body or authority; and
    2. a person includes the person’s executors, administrators, legal personal representatives, successors, assigns and persons substituted by novation.
  18. Quote
    1. On the request of a Customer, Metsel may provide a Quote to the Customer which will be deemed to incorporate the terms set out in the following documents:
      1. the document entitled, “Quotation”;
      2. these Conditions of Hire;
  • if applicable, the Conditions of Sale; and
  1. if applicable, the documents providing for any credit account held by the Customer with Metsel.
  1. For the avoidance of doubt, the Quote:
    1. is an invitation to treat by Metsel on the terms set out in the Quote and has no binding effect on the parties until the Contract is formed; and
    2. does not constitute an offer to hire the Equipment on the terms set out in the Quote and cannot be accepted by the Customer.
  2. Offer
    1. The Customer may present Metsel with an offer for the hire of Equipment in accordance with the terms set out in the Quote by providing an executed Quote to Metsel (Offer).
    2. Metsel will consider all Offers that are presented to Metsel by the Customer within 1 month of the Offer’s issue date. Notwithstanding this, Metsel is under no obligation to accept any Offer.
  3. Contract

Upon Metsel advising the Customer that it agrees to hire the Equipment to the Customer in accordance with the terms of the Offer, or words to that effect, a contract will be formed between the Customer and Metsel for the hire of the Equipment on the terms set out in the Offer subject to any variations agreed between the parties in relation to the same (Contract).

  1. Deposit
    1. In consideration of Metsel agreeing to hire the Equipment to the Customer, the Customer agrees to pay Metsel the Deposit, to be held by Metsel during the term of this Contract and to be dealt with in accordance with this clause 5.
    2. Metsel agrees to refund the Deposit to the Customer upon the collection of the Equipment in accordance with the Contract or the Termination Notice, subject to Metsel being satisfied in its sole discretion that the Equipment being in good working order and condition.
    3. The Deposit shall vest absolutely in Metsel without need for any notice to the Customer if:
      1. an the Customer commits an Act of Default; or
      2. at the expiry or termination of this Contract:
    4. Metsel is unable to collect the Equipment for any reason outside Metsel’s control;
    5. the Equipment is lost; or
    6. the Equipment is damaged,

and the parties agree that the Deposit is a fair and reasonable pre-estimate of the loss and damage that Metsel would suffer as a result of the events set out in clauses 5.c.i and 5.c.ii.

  1. Invoice and payment
    1. In consideration of Metsel hiring the Equipment to the Customer, the Customer agrees to pay Metsel the amounts set out in the Contract (Rent) upon the issue of an Invoice by Metsel to the Customer.
    2. Rent will continue to accrue until such time that the Equipment is collected by Metsel pursuant to this Contract.
    3. Metsel may issue an invoice for all outstanding Rent at any time (Invoice).
    4. The Customer agrees that Metsel may increase the Rent to correspond with its current hire charge rates for equipment similar to the Equipment by giving the Customer no less than seven days’ written notice.
    5. All Invoices are due and payable to Metsel seven days after the date the Invoice is issued (Due Date).
    6. The Customer agrees to pay Metsel interest of 7.5% per annum on all overdue Invoices.
  2. Delivery and collection of Equipment
    1. Metsel will deliver the Equipment to the Site at the time and date that is specified in the Contract.
    2. Metsel will collect the Equipment from the Site:
      1. subject to clauses b.ii and 7.b.iii, at the time and date specified in the Contract;
      2. if the Contract is terminated pursuant to a Termination Notice under clause a, at the time and date specified in the Termination Notice; and
  • if the Contract is terminated pursuant to a.ii.A, at any time during business hours and on any date to be determined at Metsel’s sole discretion.
  1. The Customer warrants that suitable and safe access to the Site will be provided to Metsel, its employees and agents to enable them to deliver the Equipment to the Site at the delivery dates and times set out in the Contract or otherwise agreed between the parties.
  2. If Metsel, in its absolute discretion, considers that there is no suitable and safe access to the Site at the agreed Equipment delivery and collection dates and times then Metsel may:
    1. refuse to deliver the Equipment until the Customer is able to provide Metsel with suitable and safe access to the Site;
    2. refuse to collect the Equipment until the Customer is able to provide Metsel with suitable and safe access to the Site; or
  • still to deliver and collect the Equipment.
  1. In the event that Metsel elects to deliver and collect the Equipment pursuant to clause d.iii, the Customer agrees to indemnify Metsel of any additional costs, including the cost of using specialised vehicles to access the Site, and any loss and damage incurred by Metsel, including any damage to Metsel’s vehicles and equipment or increased insurance costs, as a result of Metsel delivering or collecting the Equipment from an unsafe or poorly accessible Site.
  2. By accepting delivery of the Equipment, the Customer warrants that:
    1. it has examined the Equipment;
    2. the Equipment fully corresponds to the description of the Equipment in the Contract; and
  • as at the time of delivery, the Equipment is in good working order and condition and fit for any purpose for which it may be required.
  1. Minimum terms of hire and termination by the Customer
    1. The Customer may terminate the Contract by providing one week’s written notice to Metsel and this notice must specify a time and date for collection of the Equipment that is during business hours on a weekday that is not a public holiday (Termination Notice).
    2. Notwithstanding clause a, all Equipment must be hired for a minimum of 2 days, commencing on the date that the Equipment is delivered to the Site and terminating on the date that the Equipment is collected from the Site.
    3. If the Customer terminates this Contract by way of a Termination Notice, it forfeits all Rent and other amounts it may have already paid to Metsel for the hire of the Equipment even if it relates to a period after the Equipment is collected pursuant to the Termination Notice. The parties agree that these forfeited amounts are a fair and reasonable pre-estimate of the loss and damage that will be suffered by Metsel as a result of the Customer terminating the Contract early.
  2. Use of Equipment
    1. The Customer must:
      1. use the Equipment only at the location specified in the Contract:
    2. in a skilful and proper manner; and
    3. in accordance with any safety and operating instructions provided by Metsel and good industry practice;
  3. do all things necessary to ensure that the Equipment is set, used, cleaned and maintained in a safe manner;
  • maintain records of the Equipment use to the standard required by Metsel;
  1. keep the Equipment insured against all risks to a value not less than its full replacement value;
  2. inform Metsel of any repairs or adjustments needed to be conducted on the Equipment; and
  3. allow Metsel to have access to the Equipment at all reasonable times for the purpose of inspecting, testing and maintaing the Equipment.
    1. The Customer must not, without Metsel’s prior written consent:
  4. store anything other than Goods in the Equipment;
  5. make any alteration, addition or improvement to the Equipment;
  • permit any person to carry out repairs or adjustments to the Equipment;
  1. exceed the Equipment manufacturer’s stated tolerances; and
  2. dispose or part with possession of, or deal with the Equipment.
    1. If the Customer makes any alteration, addition or improvement to the Equipment, such alteration, addition or improvement is deemed to be Metsel’s property and the Customer shall vest all its right, title and interest in the same to Metsel.
  3. Damage and risk to Equipment
    1. The Customer is solely liable for and indemnifies Metsel against:
  4. all claims in connection with or arising out of the hire and use of the Equipment; and
  5. any loss or damage caused to the Equipment from the time that the Equipment is delivered to the Customer until Metsel collects the Equipment, calculated with reference to the following agreed replacement values:
    1. 2m3 silo with mixer and control panel: $15,000 plus GST
    2. 6m3 silo with mixer and control panel: $30,000 plus GST
    3. 22m3 silo with mixer and control panel: $38,000 plus GST
    4. The Customer must effect the necessary insurances to support the indemnities provided under this clause Error! Reference source not found. (including, but not limited to, insurance against any third party or public liability risks of whatever nature and however arising in connection with the hire and use of the Equipment) and produce evidence of the same to the Metsel if required.
    5. If the Equipment is not returned to Metsel after the expiry or termination of this Contract, then the Customer agrees that Metsel may pass copies of this Contract to the Police or any other governmental or regulatory authority to assist in their investigations.
  6. Title to Equipment
    1. The parties agree that Metsel holds all the rights, title and interest in the Equipment at all times subject to the Customer’s permitted use of the Equipment pursuant to this Contract.
    2. If the Equipment is to be hired to the Customer for a term exceeding two years, Metsel may register a security interest in the Equipment on the Personal Property Securities Register as security for its interest as the owner of the Equipment.
  7. Breach
    1. If the Customer commits an Act of Default, then:
      1. all sums owed by the Customer in respect of the Equipment will be immediately due and payable; and
      2. Metsel may:
        1. terminate the Contract and all other contracts with the Customer and claim damages for any resulting loss incurred; and
        2. enter the Site to collect the Equipment. To give effect to this, the Customer grants Metsel with an irrevocable licence to enter upon the Site to take possession of any Equipment.
      3. Legal costs

The Customer agrees to pay, on an indemnity basis, all legal and enforcement costs, disbursements and expenses incurred in and incidental to any failure or default by the Customer in observing or performing its obligations under the Contract, including any Act of Default.

  1. Variations

Subject clauses 8.a and 12.a.ii.A, this Contract may only be varied or cancelled by written agreement between the parties and in relation to Metsel, must be executed by its Chief Executive Officer.

  1. Security

In consideration of Metsel agreeing to hire the Equipment to the Customer, the Customer charges all of its present and after acquired property as security for the performance of the Customer’s obligations under the Contract, including its obligation to pay the Rent, and consents to Metsel:

  1. lodging a caveat or caveats over all its present and after-acquired real property; and
  2. registering a security interest over all its present and after-acquired property (in the form of a general security agreement) on the Personal Property Securities Register as defined under the PPSA in relation to any security interest contemplated or constituted by the Contract; and
  3. registering a specific security interest agreement as defined in the PPSA over any specific property which the Client has agreed in writing with Metsel to be charged.
  1. Liability
    1. Metsel shall not be liable for any indirect or consequential loss arising from and in connection with the hire and use of the Equipment under the Contract including:
      1. loss of profits;
      2. loss of production;
  • loss of revenue;
  1. loss of use;
  2. loss of contract;
  3. loss of goodwill; or
  • loss of opportunity,

whether or not that loss or damage was caused by an act, omission or default of Metsel or its agents, arising from:

  • the delivery to, or collection of, of the Equipment from the Site;
  1. the use of the Equipment at the Site; or
  2. any delay in delivering the Equipment to the Site.
  1. The maximum liability of Metsel for any reason, whether arising in common law, tort (including negligence), contract, pursuant to statute or any other cause of action, shall not exceed the Rent.
  1. Severance

If any part of the Contract is or becomes void or unenforceable, that part is or will be severed from the Contract to the extent that all parts that are not or do not become void or unenforceable remain in full force and in effect and are unaffected by that severance.

  1. Notices
    1. In addition to any lawful means, a notice may be given by:
      1. being personally served on a party;
      2. being left at the party’s current address for service;
  • being sent to the party’s current address for service; or
  1. emailing to a party’s current email address for service.
  1. If a communication is given by:

post it is taken as received if posted within Australia to an Australian address three business days (in the place of receipt) after

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