Terms & Conditions of Hire (V3)

Titan Hoarding Systems Australia Pty Ltd ACN 166 386 303

1. Definitions and Interpretation

1.1   In the Agreement:

Agreement means the agreement between Titan and the Customer for the hire of Equipment by the Customer from Titan and is documented and comprised of the Hire Quote and these Terms and Conditions.

Business Hours are 8.00am to 5.00pm on a day that is not a Saturday, Sunday, public holiday or bank holiday in Brisbane.

Commencement Date means the date of the initial dispatch of Equipment to the Customer.

Consumables means any consumables detailed in the Hire Quote.

Customer means the person, company or other legal entity hiring the Equipment from Titan. Where the context permits, it includes the Customer’s employees and contractors.

Damage Waiver has the meaning and operation provided for by clause 10 of these Terms and Conditions.

Damage Waiver Excess has the meaning provided for by clause 10.4 of these Terms and Conditions.

Damage Waiver Fee has the meaning provided for by clause 10.2 of these Terms and Conditions.

Equipment means the equipment hired by the Customer from Titan pursuant to the Agreement and includes hoarding system equipment of Titan but excludes the Consumables.

GST means the New Tax System (Goods and Services Tax) Act 1999 (Cth).

Hire Period comprises the interval between the Commencement Date and the date specified in the Hire Quote as the final day of the hire or such extended period of hire as may come about pursuant to clause 4.4.

Hire Quote means the hire quote provided to the Customer by Titan in respect of the hire of Equipment and accepted by the Customer.

List Price means the retail prices for sale of various types of products as published on Titan’s website (www.1300titan.com.au).

Payment means the amount to be paid by the Customer to Titan for hire charges in respect of the Equipment and any other charges as specified in the Hire Quote.

PPSA means the Personal Property Securities Act 2009 (Cth) as amended and any replacement or successor legislation.

Titan means Titan Hoarding Systems Australia Pty Ltd ACN 166 386 303.

Titan Group means Titan and Liberation Developments Pty Ltd ACN 127 681 118 and all Related Entities of those companies.

Trade Mark means any trade mark in respect of and/or to be displayed on the Equipment from time to time.

1.2   In the Agreement:

1.2.1    a singular word includes the plural and vice versa;

1.2.2    a word which suggests one gender includes the other gender;

1.2.3    a reference to a party to the Agreement or any other document or agreement includes the party’s successors, permitted substitutes and permitted assigns;

1.2.4    if a word or phrase is defined its other grammatical forms have a corresponding meaning.

2. Hire Agreement

2.1   The Agreement (comprised of the Hire Quote and the Terms and Conditions of Hire) embodies the entire agreement between Titan and the Customer. There is no other oral understanding, agreement, warranty or representation whether express or implied by conduct or otherwise that in any way has any effect on the Agreement and the Agreement supersedes any correspondence, documents, statements, promises, understandings, representations or courses of conduct inconsistent with the provisions of the Agreement. Any modification to the Agreement must be in writing signed by both the Customer and Titan.

2.2   The Customer accepts the Agreement by signing the Hire Quote and returning a signed copy of the Hire Quote to Titan and/or by accepting receipt of the Hire Quote issued by Titan at the request of the Customer and receiving the Equipment specified in the Hire Quote. By such conduct the Customer acknowledges that the Customer has had sufficient opportunity to read and understand the documents comprising the Agreement and agrees to be bound.

2.3   It will usually be the case that no Equipment will be hired to the Customer until Titan has received the Hire Quote signed by an authorised representative of the Customer.

2.4    The Hire Quote is subject to the availability of Equipment, and to change depending on actual quantities required, timing and site conditions.

2.5   The Hire Quote is only applicable for the site and location specified in the Hire Quote.

2.6   Titan has the right to insist upon the Customer’s strict adherence with the Agreement at any time despite any previous failure or delay by Titan to insist upon strict adherence with the Agreement. Any failure or delay by Titan at any time to insist upon strict performance of the Agreement by the Customer and Titan’s enforcement of Titan’s rights and remedies thereunder shall not release the Customer from its obligations under the Agreement or constitute a waiver of any right of Titan.

3. Payment

3.1   The Customer must pay Titan the Payment including any applicable GST, stamp duty or other duties, tolls, fines, penalties, levies or freight and other charges or expenses relevant to the Agreement and the hire.

3.2   The Payment must be paid by the Customer to Titan prior to or on the Commencement Date of the Hire Period. The Equipment will not be provided to the Customer until the Payment is made in full by the Customer unless Titan waives this requirement in writing. If the Customer does not pay the any amount payable by the due date for payment the Customer will be required to pay a 1.5% per month service on all overdue amounts.

3.3   The Payment must be paid in the manner, to the account and in the amount specified in the Hire Quote. The Customer acknowledges that not receiving an invoice from Titan will not relieve the Customer of its liability to make Payment.

3.4   The Customer acknowledges that it cannot claim a reduction in the Payment for returning the Equipment prior to the end of the Hire Period.

3.5   The Customer will be liable for all costs and expenses incurred by Titan (including legal costs on a solicitor own client basis) arising directly or indirectly from any breach by the Customer of the Agreement.

4. Hire Of Equipment and Extension of Hire Period

4.1   The hiring of Equipment by Titan to the Customer under this Agreement will commence on and from the Commencement Date and may continue until all of the Equipment is returned to Titan or this Agreement is terminated under clause 12.2 or otherwise comes to an end.

4.2   The Customer is entitled to use the Equipment for the Hire Period. However, the Equipment must be used strictly in accordance with Titan’s instructions and industry best practices.

4.3   Subject to clause 4.4, the Equipment must be returned to the address of Titan on or before the end of the Hire Period as detailed in the Hire Quote. Failure to do so by the end of the Hire Period will be a breach of the Agreement and can be regarded as theft of the Equipment and will incur further charges. If any Equipment is not returned at the expiration of the Hire Period the Agreement will be treated as being extended for an unspecified period as provided for by clause 4.4 and the Customer will be invoiced in accordance with clause 4.5. In such circumstances Titan may terminate the Agreement at will pursuant to clause 12. 2..

4.4   The Hire Period (as set out in the Hire Quote) will be automatically extended for such time that the Customer retains the possession, use or control of the Equipment and the Customer will incur further hire charges for such extended period of hire. The Hire Period will come to an end when all of the Equipment is returned to Titan (pursuant to a termination of the Agreement under clause 12.2 or otherwise) or, in respect of Equipment that is not able to be returned (including by reason that it has been lost or stolen), when the Customer notifies Titan that Equipment is not able to be returned and makes payment for such unreturned Equipment pursuant to clause 9.2.

4.5   Monies to be paid by the Customer in respect of the extension to the Hire Period in respect of the Equipment will be calculated and charged to the Customer in two week charge periods and will be invoiced on a four week billing cycle at the rate specified in the Hire Quote. If the Hire Quote specified a fixed fee rather than a rate, any extension to the Agreement will be charged on a proportionate basis to the fixed fee Payment.

4.6   All other terms and conditions of the Agreement will continue to apply to any extension granted or arising pursuant to this clause 4.

5. Delivery and Return of Equipment

5.1   The Customer may retain Titan in the capacity of an agent to arrange for the delivery of the Equipment.

5.2   The charges for delivery will be detailed in the Hire Quote. Titan may charge additional fees in fifteen-minute increments, at the rate specified in the Hire Quote, for incurring unanticipated delays and failed deliveries. Further in this regard, where the Hire Quote includes charges for delivery, installation and/or removal of Equipment, the pricing quoted is subject to none of the conditions in clause 5.3 being applicable.

5.3   Unless already specifically detailed in the Hire Quote, additional delivery, installation, removal charges and other charges will apply where:

5.3.1     The actual delivery point differs from the designated delivery point by one kilometre or more.

5.3.2     The terrain is hazardous, rough, uneven, boggy, steep, subject to heavy vegetation or otherwise of such character as to hinder mobility or make access or egress difficult or cumbersome.

5.3.3     Access is hindered and/or delivery/installation/removal process is slowed due to external factors or unusual features.

5.3.4     Delivery/installation/removal is required outside of Titan’s Business Hours.

5.3.5     Additional visits to the Customer’s site are required for maintenance, changes in access and doors, re-stands, re-configuration (for whatever reason), re-locations, partial removals or additional deliveries.

5.3.6     Titan is delayed or prevented from delivering, installing or removing for any reason beyond its reasonable control.

5.3.7     Hoists/Booms/Scissor lifts or similar machinery required for installation – where such additional machinery is required for installation and Titan arranges for such to be provided then the Customer will be charged by Titan at cost plus 25%.

5.4   Any cancellation of any hire of Equipment must occur at or before 11:00 a.m. of the day prior to the designated delivery date. Any cancellation occurring afterward may be subject to additional charges.

5.5   The Customer is responsible for unloading the Equipment upon delivery to the site and for repackaging and reloading the Equipment for return to Titan. The Equipment must be repackaged by the Customer in identical packaging to that in which it was received.

5.6   In respect of any return of all or part of the Equipment, upon request by the Customer Titan will issue the Customer with an “off hire” docket (which the Customer must retain) once the Equipment has been returned to Titan. The issue of an off hire docket will confirm the expiration of hire in respect of the returned Equipment as from the date that the Equipment is returned to Titan.

5.7   The Customer is liable for all damages, losses, costs, and expenses that may arise directly or indirectly out of Titan’s agency agreement with the Customer with respect to arranging delivery of the Equipment. The Equipment is at the risk of the Customer from the time that the Equipment leaves Titan’s premises, including where the Customer collects the Equipment, the Customer itself arranges for delivery of the Equipment or the Customer has retained Titan to arrange delivery of the Equipment by third party carriage provider. For the avoidance of any doubt, any third party carriage provider is agreed to be the agent of the Customer.

6. Receipt of Equipment

6.1   The Customer must immediately upon receipt of the Equipment determine that the Equipment corresponds in all respects with the Hire Quote and the Customer must notify Titan upon delivery if the Equipment does not so correspond in all respects with the Hire Quote failing which the Customer will be taken to accept the Equipment and that the Equipment is in good repair and condition and is fit for the Customer’s purpose.

7. Use of the Equipment

7.1   The Customer acknowledges that the use of the Equipment carries with it dangers and risks of injury and the Customer agrees to accept all dangers and risks.

7.2   The Customer must maintain the Equipment in good condition and must not, without Titan’s prior written consent, alter, remove, make additions or deface the Equipment or any of its logos or such other of its marks, numbers or identifying particulars, including Trade Marks.

7.3   The Equipment shall not be used by anyone other than the Customer and the Customer’s authorised personnel without the express written consent of Titan.

7.4   The Customer will only install and use the Equipment in accordance with the design requirements and the installation instructions and specifications as referred to in the Hire Quote and may be notified from time to time to the Customer by Titan.

7.5   The Customer will ensure that all persons using, erecting, dismantling or moving the Equipment are instructed in its safe and proper use, erection, dismantling or movement and, where required by applicable regulatory requirements, hold valid proof of current training or are currently fully licenced and insured to use, erect, dismantle and move the Equipment as the case may be.

7.6   The Customer must at all times use, maintain, store and transport the Equipment in a proper manner and where required strictly in accordance with any instruction provided by Titan and with due care and diligence.

7.7   The Customer agrees that the Equipment will only be used for its intended purpose and in accordance with any Titan instructions and recommendations in regard to use, erection, dismantling, movement, maintenance or storage.

7.8   The Customer must comply with all applicable health and safety laws and regulations in addition to all relevant industry best practice, custom and standards relating to the use of the Equipment and associated operations.  If any relevant authority is required to be contacted and/or approvals sought and obtained before any Equipment is installed it is the Customer’s sole responsibility to do so.

7.9   The Customer must ensure the Equipment is returned to Titan in good order and condition, clean of all foreign matter, failing which the Customer will be in breach of the Agreement and must indemnify Titan in respect of the cost of any cleaning or repair or replacement of any of the Equipment.

7.10  The Customer must give Titan advance notice of any special or unusual features of the installation site. Unusual features include but are not limited to high pedestrian areas, secure areas, high wind areas and areas with strong wind pressures.

7.11  If any unusual features apply, and these have not been disclosed by the Customer, then additional charges may be made.

7.12  Extra charges may be issued by Titan to the Customer for site specific bracing for hoarding stability / wind and crowd loading. It is the Customer’s responsibility to advise Titan of any such matters and to obtain advice about any additional bracing that may be required.

7.13  Additionally, dust suppression cloth or signage attached to hoarding panels can create additional wind loading and requires the necessary bracing for safety, dust suppression and security. It is the Customer’s responsibility to advise Titan of any such matters and to obtain advice about any additional bracing that may be required.

7.14  Titan will have no responsibility for any other services when modification to either Equipment or site features or structures is required for installation unless specifically identified in writing prior to installation. All services on site by Titan are performed by Titan as the Customer’s agent, and the Customer is solely responsible for any costs or damages arising out of the modification.

8.  Labour Rates

8.1   Unless the Hire Quote states otherwise, Titan’s labour rates per person are as published on its website (www.1300titan.com.au) from time to time.

8.2   Titan will charge its labour rates for travel time depot to depot and load/unload time where applicable. Such charges will be in addition to any transport charges that may be applicable.

8.3   All rates (including labour rates and cycle billing rates) are subject to change by Titan.

8.4   The Customer is liable to be charged by Titan for any labour performed by Titan as required by the Customer for services not specified or not able to be specified in the Hire Quote.

9. Damage to Equipment or Loss

9.1   If Equipment is returned or collected in a condition which in the reasonable opinion of Titan renders it unusable for hire but is able to be repaired, the Customer must pay Titan on demand the cost of repair of the Equipment, the costs being the actual costs to Titan to repair the Equipment.

9.2   Subject to clause 10, if any Equipment is not returned by the Customer for whatever reason (including by reason of loss or theft of the Equipment), the Customer will pay on demand the List Price in respect of any such Equipment. If any of the unreturned Equipment in respect of which the Customer has made payment to Titan under this clause is located then the Customer will make all of its best endeavours to return such Equipment to Titan or assist Titan to recover any such Equipment. In respect of any such Equipment recovered and returned to Titan, the Customer will only be entitled to reimbursement by Titan of the List Price paid by the Customer for such Equipment less 50% or, in the case of Equipment that is damaged and unusable without repair, the List Price paid less 50% and the repair costs. There is no entitlement to reimbursement for any Equipment returned or recovered more than 1 year after payment by the Customer to Titan of the List Price and/or in the reasonable opinion of Titan is unusable and beyond repair or is uneconomic to repair.

9.3   The Customer’s failure to arrange for collection of or to return any or all Equipment will be a breach of the Agreement and the Customer will be liable to Titan for all costs, expenses, damages and losses both direct and indirect arising from such breach including where there has been theft of the Equipment.

10. Damage Waiver

10.1  Damage Waiver is an agreement between Titan and the Customer to limit the Customer’s liability in certain circumstances for loss, theft or damage to Equipment. Damage Waiver is not insurance.

10.2  Subject to clause 10.9 the Damage Waiver Fee is automatically charged to the Customer and is specified in the Hire Quote.

10.3  Subject to clauses 10.7 and 10.8, from the time of payment by the Customer of the Damage Waiver Fee the Customer’s liability to Titan in respect of loss, theft or accidental damage to Equipment during the Hire Period will be limited to the amount of the Damage Waiver Excess in the following circumstances:

10.3.1   in the case of theft, the Customer has promptly reported the theft to the police and provided to Titan a written police report;

10.3.2   in all cases, the Customer has cooperated with Titan and provided to Titan full details of the loss, theft or damage to the Equipment, including any written or photographic evidence that Titan may reasonably require;

10.3.3   the loss, theft or damage does not fall into one or more of the exclusions set out at clause 10.8;

10.3.4   the Customer has paid the Damage Waiver Excess.

10.4  The Damage Waiver Excess is $1,000.00 except in the following circumstances:

10.4.1   where the replacement or repair cost of the lost or damaged Equipment is less than $1,000.00, the replacement cost of the lost or damaged Equipment;

10.4.2   in the case of loss or damage to Equipment due to a named cyclone, $10,000.00 or if the replacement or repair cost of the lost or damaged Equipment is less than $10,000.00, the replacement or repair cost of the lost or damaged Equipment;

10.4.3   in the case of loss or damage to Equipment due to volcanic activity or earthquake or subterranean fire, $20,000.00 or if the replacement or repair cost of the lost or damaged Equipment is less than $20,000.00, the replacement or repair cost of the lost or damaged Equipment;

10.5  The Customer must immediately upon demand pay to Titan the amount of the Damage Waiver Excess.

10.6  This clause in no way entitles the Customer to, or implies the availability of, compensation from Titan for any liability incurred by the Customer in relation to the use of the Equipment.

10.7  This clause will not continue to operate after the expiration of the Hire Period unless an any additional charges for such extended hire are paid and are continued to be paid by the Customer to Titan.

10.8  This clause will not apply to loss, theft or damage to Equipment which relates to or arises from:

10.8.1   The Customer’s non-adherence to normal installation and maintenance requirements that are notified to or could reasonably be expected to be known by the Customer

10.8.2   The Customer’s neglect, refusal or failure to fully comply with all or any instructions and recommendations notified or given to the Customer by Titan in respect of the proper use and maintenance of the Equipment;

10.8.3   unexplained disappearances of the Equipment;

10.8.4   loading or offloading the Equipment from maritime vessels, transportation of the Equipment on maritime vessels or the use of the Equipment on any wharf or bridge or on or over any body of water;

10.8.5   loss or damage during transport;

10.8.6   loss or damage caused or contributed to by the negligent act or omission of the Customer

10.8.7   loss or damage due to flood.

10.9  The Customer is not required to pay the Damage Waiver Fee and/or will not be charged the Damage Waiver Fee if the Customer is able to, prior to the commencement of the Hire Period, produce to Titan a certificate of currency for an appropriate insurance policy that will cover loss, theft or damage to the Equipment during the Hire Period for an amount not less than the replacement value of the Equipment. In such circumstances the Customer is responsible for any excess or other costs associated with its insurance and the Customer will remain responsible to Titan for any shortfall in repair or replacement costs in respect of the Equipment (as well as any losses Titan suffers as a result of not being able to have or use the Equipment) following payment of any amount received under the Customer’s insurance policy.

11. Customer’s Warranties

11.1  The Customer warrants to Titan, and it is a condition of the Agreement, that –

11.1.1   the information provided by the Customer to Titan is correct in every respect and is not misleading in any way including, without limitation, by omission;

11.1.2   that any change to the information provided by the Customer to Titan, including change in the directorship, senior management or conversion to or from a company or to or from a trust, shall be indicated in writing by the Customer to Titan within seven (7) days of such event occurring;

11.1.3   the Customer holds a valid current licence (if any licence is required) in respect of use, erection, dismantling and movement of the Equipment;

11.1.4   the Equipment will not be used for any illegal purpose or any purpose other than its intended purpose;

11.1.5   the Customer will not, without prior written consent of Titan, tamper with, repair or modify the Equipment in any way, or permit another to do so;

11.1.6   the Customer will not in any way part with possession or control of the Equipment, sub-lease the Equipment nor assign the Agreement, nor remove the Equipment from the site of its intended use as notified to Titan without the prior written approval of Titan.

11.2  The Customer further warrants that any person signing the Hire Quote on behalf of the Customer has the Customer’s authority to enter into the Agreement with Titan on behalf of the Customer.

11.3  The Customer further warrants that, apart from as provided for and allowed by the Agreement, the Customer does not have any rights to or licence to exploit any intellectual property owned by the Titan Group.

12. Titan’s Rights

12.1  Any reference to Titan for the purposes of this clause 12 also includes any relevant third party financier in respect of the Equipment.

12.2  Titan may terminate the Agreement and recover the Equipment at any time on seven (7) days’ notice to the Customer. If Titan exercises this termination right, Titan will refund the Customer for any hire fees received by Titan which relate to Equipment hired beyond the period that the Equipment was on hire, less a deduction for reasonable expenses incurred by Titan in connection with the recovery and/or transport of the Equipment.

12.3  Despite anything else contained in this Agreement, Titan may take immediate possession of the Equipment if the Customer breaches any term of the Agreement including not paying any monies when due. The Customer irrevocably authorises Titan to enter upon any land or premises where Titan reasonably believes the Equipment to be located for the purpose of repossessing the Equipment.

12.4  Titan may terminate the Agreement and take immediate possession of the Equipment if the Customer commits any act of insolvency. An act of insolvency includes but is not limited to a notification of insolvency by the Customer, the Customer entering into a deed of company arrangement with creditors or creditors’ execution being levied against the Customer, an application being made for the winding-up of the Customer or notice is given of a meeting of creditors with a view to the winding-up, administration or liquidation of the Customer, the appointment of a controller or administrator, the Customer’s bankruptcy or the Customer personally presenting or having presented against the Customer a bankruptcy petition.

12.5  Titan may enter any premises where the Equipment or any part of it is, or believed to be located for the purpose of:

12.5.1 inspecting or testing the Equipment;

12.5.2 protecting Titan’s rights or interest in the Equipment;

12.5.3 ensuring compliance with any applicable law, including any law relating to health and safety; or

12.5.4 exercising its right to take possession or control of the Equipment.

13. Liabilities and Indemnities

13.1  To the full extent permitted by law the Customer releases, discharges and indemnifies Titan and will hold Titan indemnified from all claims and demands on Titan arising out of or consequent on the use or misuse of the Equipment during the Hire Period or breach of the Agreement by the Customer.

13.2  Without limiting any provision of this Agreement but subject to clause 13.3 below, the Customer agrees that to the full extent permitted by law, no warranties are given by Titan in respect of the Equipment. Any liability of Titan pursuant to any warranty which cannot be excluded by law will not exceed either the cost of repairing the Equipment or the cost of resupplying the Equipment, at the discretion of Titan.

13.3  If the Customer is a Consumer (as the term “Consumer” is defined at section 3 of the Australian Consumer Law) the Equipment comes with guarantees that cannot be excluded under the Australian Consumer Law and the Customer is entitled to replacement or refund for a major failure and compensation for any other reasonably foreseeable loss or damage and the Customer is also entitled to have the Equipment repaired or replaced if the Equipment fails to be of acceptable quality and the failure does not amount to a major failure.

13.4  The Customer will assume all risks and liabilities for, and in respect of, the Equipment and for all injuries to or deaths of persons and any damage to property howsoever arising from the Customer’s possession, use, maintenance, repair, storage or transport of the Equipment.

13.5  Neither the Customer nor Titan will be liable for delay or failure of performance with respect to its obligations (except the Customer’s payment obligations) to the extent that the delay is caused by force majeure. Force majeure shall mean any event or condition that adversely prevents or delays the performance of any obligation arising under the Agreement, but only to the extent such event or condition is demonstrably beyond the control of the party claiming force majeure. Force majeure may include but is not limited to such events as war, terrorism, revolution, strikes, acts of God, natural disaster or fire. Any such delay or failure of performance exceeding seven days shall entitle either party to terminate the Agreement by written notice.

14. Title to Equipment

14.1     Any reference to Titan for the purposes of clause 14 of these Terms and Conditions also includes any relevant third party financier in respect of the Equipment.

14.2     The Customer acknowledges that Titan retains title to the Equipment and that the Customer has rights to use the Equipment as a mere bailee only. The Customer agrees that the Customer has no rights to pledge Titan’s credit in connection with the Equipment.

14.3     The Customer must not agree, offer or purport to sell, assign, sub-let, lend, pledge, mortgage, let, hire, create any security interest (as defined in the PPSA) or otherwise part with or attempt to part with personal possession or otherwise deal with the Equipment, nor conceal or make any addition or alteration to, the Equipment other than as may be expressly consented to by Titan in writing.

14.4     The Customer must not make any representation, or behave in such a manner, as to induce any person to believe that the Customer possesses title in or ownership of the Equipment.

14.5     The remaining provisions of this clause apply to the extent that the Agreement provides for a ‘security interest’ for the purposes of the PPSA. The rights of Titan under the Agreement are in addition to, and not in substitution for, Titan’s rights under other law, including the PPSA, and Titan may choose whether to exercise its rights under the Agreement and/or other law as it sees fit.

14.6     Titan may register its interest as a security interest under the PPSA. The Customer must do anything (such as obtaining consents and signing documents) which Titan requires for the purposes of:

14.6.1   ensuring that Titan’s security interest is enforceable, perfected and otherwise effective under the PPSA;

14.6.2   enabling Titan to gain first priority (or any other priority agreed to by Titan in writing) for its security interest; and

14.6.3   enabling Titan to exercise rights in connection with the security interest.

14.7      Titan may recover from the Customer the cost of doing anything under this clause, including but not limited to registration fees.

14.8      The Customer waives its rights to receive a verification statement in relation to registration events in respect of commercial property under section 157 of the PPSA.

14.9      To the extent that Chapter 4 of the PPSA applies to the security interest under the Agreement, the following provisions of the PPSA do not apply, and, for the purposes of section 115 of the PPSA, are ‘contracted out’ of the Agreement in respect of all Equipment to which that section can be applied –

14.9.1    section 95 (notice of removal of accession to the extent it requires Titan to give notice to the Customer);

14.9.2    section 96 (retention of accession);

14.9.3    section 121(4) (notice to grantor);

14.9.4    section 125 (obligations to dispose of or retain collateral);

14.9.5    section 129(2) and 129(3);

14.9.6    section 130 (notice of disposal to the extent it requires Titan to give notice to the Customer);

14.9.7    section 132(3)(d) (contents of statement of account after disposal);

14.9.8    section 132(4) (statement of account if no disposal);

14.9.9    section 135 (notice of retention);

14.9.10   section 142 (redemption of collateral); and

14.9.11   section 143 (re-instatement of security agreement).

14.10      The following provisions of the PPSA confer rights on Titan:

14.10.1    section 123 (seizing collateral);

14.10.2    section 126 (apparent possession);

14.10.3    section 128 (secured party may dispose of collateral);

14.10.4    section 129 (disposal by purchase);

14.10.5    section 134(1) (retention of collateral) and The Customer agrees that in addition to those rights, Titan shall, if there is default or breach by the Customer, have the right to seize, purchase, take possession or apparent possession, retain, deal with or dispose of any goods, not only under those sections but also, as additional and independent rights under the Agreement and the Customer agrees that Titan may do so in any manner it sees fit, including (in respect of dealing and disposal) by private or public sale, lease, or license. The Customer further agrees that nothing in the Agreement will constitute a contracting out of the provisions of the PPSA listed in clause 14.10(a)-(e) inclusive.

14.11 The Customer must do everything necessary on its part to ensure that section 275(6)(a) of the PPSA continues to apply. This clause 14.11 is solely for the purposes of allowing Titan the benefit of section 275(6)(a) and Titan shall not be liable to pay damages or any other compensation or be subject to injunction if Titan breaches this subclause.

15. Location of Equipment

15.1  The Customer must expressly and immediately inform Titan of the location and any change of location of the Equipment during the Hire Period.

15.2  The Customer must not permit removal of the Equipment from the location that the Customer has represented the Equipment would be without the prior written consent of Titan.

16.  Information

16.1  The Customer authorises Titan to collect, store, use and disclose information about the Customer for the purposes related to the provision of hire services (including whether to allow credit on the Customer’s account), reporting information to any credit reporting agency, marketing Titan’s goods and services, and enforcing any rights under the Agreement.

16.2  The Customer expressly consents to receiving commercial electronic messages from Titan and its agents for the purposes of the Spam Act 2003. The Customer may withdraw its consent at any time by notifying Titan in writing.

17. Governing Law

17.1  The Agreement is governed by the laws of Queensland and each party submits to the non-exclusive jurisdiction of the Courts of Queensland.

17.2  If any provision of the Agreement is wholly or partly invalid, unenforceable, illegal, void or voidable, the Agreement must be construed as if that provision or part of a provision had been severed from the Agreement and the parties remain bound by all of the provisions and part provisions remaining after severance.

Terms & Conditions of Sale (V1)

Titan Hoarding Systems Australia Pty Ltd ACN 166 386 303

1. Application of these Terms

1.1   These Terms apply to all sales of Equipment by Titan to a Customer unless Titan expressly agrees otherwise in writing.

2. Definitions and Interpretation

2.1   In these Terms:

Customer means the person, company or other legal entity purchasing Equipment from Titan. Where the context permits, it includes the Customer’s employees and contractors.

Equipment means the goods and products sold, or to be sold to the Customer (including goods and products manufactured or to be manufactured at the Customer’s request) and also includes any services associated with the sale of Equipment provided or arranged by Titan for the benefit of the Customer such as delivery.

GST means goods and services tax under the A New Tax System (Goods and Services Tax) Act 1999 (Cth) as amended or as provided for under any replacement or successor legislation.

Invoice means the invoice issued by Titan to the Customer in respect of the Equipment.

Order means a written purchase order in respect of the Equipment submitted by the Customer to Titan that is agreed to and accepted by Titan.

Payment means the amount to be paid by the Customer to Titan for the Equipment as specified in the Invoice.

Quote means the quote (if any) provided to the Customer by Titan in respect of the price of Equipment and accepted by the Customer’s signed acceptance of the Quote.

Related Entity has the meaning as provided for by section 9 of the Corporations Act 2001 (Cth).

Sale Agreement has the meaning as provided for at clause 3.1 of these Terms.

Titan means Titan Hoarding Systems Australia Pty Ltd ACN 166 386 303.

Titan Group means Titan and Liberation Developments Pty Ltd ACN 127 681 118 and all Related Entities of those companies.

Trade Mark means any trade mark in respect of and/or to be displayed on the Equipment from time to time.

2.2   In these Terms:

2.1.1    a singular word includes the plural and vice versa;

2.1.2    a word which suggests one gender includes the other gender;

2.1.3    a reference to a party includes the party’s successors, permitted substitutes and permitted assigns;

2.1.4    if a word or phrase is defined its other grammatical forms have a corresponding meaning.

3. Sale Agreement

3.1   The Sale Agreement for the sale of Equipment by Titan to a Customer is comprised of and documented by any Quote accepted by the Customer, any Order, the Invoice issued by Titan to the Customer in respect of the Equipment and these Terms. Subject to any legislation by which terms are incorporated or implied into contracts for sale of goods and which cannot be contracted out of the Sale Agreement embodies the entire agreement between Titan and the Customer. There is no other oral understanding, agreement, warranty or representation whether express or implied by conduct or otherwise that in any way has any effect on the Sale Agreement and the Sale Agreement supersedes any correspondence, documents, statements, promises, understandings, representations or courses of conduct.

3.2   Titan has the right to insist upon the Customer’s strict adherence with the Sale Agreement at any time despite any previous failure or delay by Titan to insist upon strict adherence. Any failure or delay by Titan at any time to insist upon strict performance by the Customer or in enforcement of Titan’s rights and remedies shall not release the Customer from its obligations or constitute a waiver of any right of Titan.

4. Payment and Delivery/Collection

4.1   The Customer must pay Titan the Payment (including any applicable GST) in cleared funds prior to being entitled to receipt of the Equipment. Only when the Customer has paid the Payment in full in cleared funds will the Customer be entitled to collect the Equipment or have the Equipment delivered to the Customer. In the case of Equipment to be manufactured at the Customer’s request, that the Equipment is being manufactured specifically at the request of the Customer will be noted on the Quote (if applicable) and the Invoice and Payment must be made in full prior to Titan being under any obligation to cause the Equipment to be manufactured,

4.2   The Customer may retain Titan to arrange for delivery of the Equipment, including by the engagement by Titan of a third party carriage provider. The charge for delivery will be specified in the Invoice but additional charges will apply if the delivery charge specified in the Invoice is not sufficient to cover delivery costs due to any of the following:

4.2.1     the actual delivery point differs from the designated delivery point by one kilometre or more.

4.2.2     the terrain is hazardous, rough, uneven, boggy, steep, subject to heavy vegetation or otherwise of such character as to hinder mobility or make access or egress difficult or cumbersome.

4.2.3     access is hindered and/or delivery process is slowed due to external factors or unusual features, including actions of the Customer.

4.3   The Equipment is at the risk of the Customer from the time that the Equipment leaves Titan’s premises, including where the Customer collects the Equipment, the Customer itself arranges for delivery of the Equipment or the Customer has retained Titan to arrange delivery of the Equipment by third party carriage provider. For the avoidance of any doubt, any third party carriage provider is agreed to be the agent of the Customer.

4.4   Any delivery times notified by Titan to the Customer are estimates only and Titan will not be liable for late delivery or non-delivery. Titan will not be liable for any loss, damage or delay occasioned to the Customer or any parties that the Customer deals with arising from late or non-delivery.

5. Receipt of Equipment

5.1   The Customer must immediately upon receipt of the Equipment inspect the Equipment to determine that the Equipment corresponds in all respects with the Quote and/or Order (whichever is applicable) and the Customer must notify Titan immediately (and by no later than 7 days from receipt of the Equipment) if the Equipment does not correspond in all respects with the Quote and/or Order failing which the Customer will be taken to accept the Equipment and that the Equipment is in good repair and condition and is fit for the Customer’s purpose.

6. Use of the Equipment

6.1   The Customer acknowledges that the use of the Equipment carries with it dangers and risks of injury and the Customer agrees to accept all dangers and risks.

6.2   It is the Customer’s responsibility to maintain the Equipment in good condition and the Customer must not, without Titan’s prior written consent, remove from the Equipment any Titan logos, marks, numbers or identifying particulars, including Trade Marks that were present on the Equipment when received by the Customer.

6.3   The Equipment shall not be used by anyone other than the Customer and the Customer’s authorised personnel without the express written consent of Titan. For the avoidance of any doubt, the Customer is prohibited from hiring out any of the Equipment to any entities other than Related Entities of the Customer without Titan’s express written permission.

6.4   It is the Customer’s responsibility to install and use the Equipment strictly in accordance with the design requirements and the installation instructions and specifications as referred to in any documentation accompanying the Equipment when dispatched and which appears on Titan’s website (www.1300titan.com.au) and which may be changed or updated by Titan from time to time.

6.5   It is the Customer’s responsibility to ensure that all persons using, erecting, dismantling or moving the Equipment are instructed in its safe and proper use, erection, dismantling or movement and, where required by applicable regulatory requirements, hold valid proof of current training or are currently fully licenced and insured to use, erect, dismantle and move the Equipment as the case may be.

6.6   It is the Customer’s responsibility to ensure that the Equipment will only be used for its intended purpose and to comply with all applicable health and safety laws and regulations in addition to all relevant industry best practice, custom and standards relating to the use of the Equipment and associated operations. If any relevant authority is required to be contacted and/or approvals sought and obtained before any Equipment is installed it is the Customer’s sole responsibility to do so.

6.7   The Customer will be solely responsible for any consequences of use of the Equipment if any modifications are made to the Equipment after it is received by the Customer and the Customer indemnifies Titan against any loss, damages or expenses arising out of use of any such modified Equipment.

6.8   The Customer is not permitted to sell the Equipment or any part of the Equipment to any third party without having first offered to sell the Equipment (or part of the Equipment) back to Titan at the same price that a third party potential purchaser has committed in writing to pay or 50% of the price paid by the Customer for the Equipment (or part of the Equipment), whichever amount is the lesser. The Customer may only sell the Equipment (or part of the Equipment) to a third party in circumstances where the Customer has received a written offer to purchase from a third party potential purchaser specifying the Equipment that is proposed to be purchased and the price that the third party potential purchaser has agreed to pay (“Third Party Offer”), and a copy of that Third Party Offer is provided by the Customer to Titan along with a written offer from the Customer to sell the Equipment (or part of the Equipment) as specified in the Third Party Offer in accordance with the first sentence of this clause and Titan refuses the offer or does not accept the offer within 7 days of it having been made. For the avoidance of any doubt, Titan is under no obligation to buy back any Equipment.

7. Liabilities and Indemnities

7.1   To the full extent permitted by law the Customer releases, discharges and indemnifies Titan and will hold Titan indemnified from all claims and demands on Titan arising out of or consequent on the use or misuse of the Equipment by the Customer or breach of the Sale Agreement by the Customer.

7.2   Without limiting any provision of this Agreement but subject to clauses 7.3 and 7.4 below, the Customer agrees that to the full extent permitted by law, no warranties are given by Titan in respect of the Equipment. Any liability of Titan pursuant to any warranty which cannot be excluded by law will not exceed either the cost of repairing the Equipment or the cost of resupplying the Equipment, at the discretion of Titan.

7.3   Titan provides a 10 year warranty in respect of certain components that may form part of the Equipment. That warranty is set out in Titan’s “Components Warranty Statement” that can be accessed via Titan’s website (www.1300titan.com.au) and is strictly limited to the terms as set out therein.

7.4   If the Customer is a Consumer (as the term “Consumer” is defined at section 3 of the Australian Consumer Law) the Equipment comes with guarantees that cannot be excluded under the Australian Consumer Law and the Customer is entitled to replacement or refund for a major failure and compensation for any other reasonably foreseeable loss or damage and the Customer is also entitled to have the Equipment repaired or replaced if the Equipment fails to be of acceptable quality and the failure does not amount to a major failure.

7.5   The Customer will assume all risks and liabilities for, and in respect of, the Equipment and for all injuries to or deaths of persons and any damage to property howsoever arising from the Customer’s possession, use, maintenance, repair, storage or transport of the Equipment.

7.6   Apart from as provided for and allowed, by these Terms and any Sale Agreement that these Terms comprise part of, the Customer does not have any rights to or licence to exploit any intellectual property owned by the Titan Group.

8. Information

8.1   The Customer authorises Titan to collect, store, use and disclose information about the Customer for the purposes related to the provision of sale of goods or hire services, marketing Titan’s goods and services, and enforcing any rights under the Sale Agreement.

8.2   The Customer expressly consents to receiving commercial electronic messages from Titan and its agents for the purposes of the Spam Act 2003. The Customer may withdraw its consent at any time by notifying Titan in writing.

9. Governing Law

9.1   The Sale Agreement is governed by the laws of Queensland and each party submits to the non-exclusive jurisdiction of the Courts of Queensland.

If any provision of the Sale Agreement is wholly or partly invalid, unenforceable, illegal, void or voidable, the Sale Agreement must be construed as if that provision or part of a provision had been severed from the Sale Agreement and the parties remain bound by all of the provisions and part provision.