TERMS & CONDITIONS OF WEBSITE USE

The use of this Website is subject to these Terms and Conditions (inclusive of Our standard Terms and Conditions for the supply of Container(s) and Services, Privacy Policy, Refund Policy any other documents referred to herein) which constitutes the full agreement between You and Us.

Please read these Terms and Conditions carefully before You use the Website.

By using the Website, You indicate that You have, effective upon the date on which You have used the Website, read, accepted and agreed to be bound by these Terms and Conditions.

If You do not agree with these Terms and Conditions, You should cease using the Website immediately.

Definitions

“Agreement” means the terms and conditions contained herein, together with any quotation, order, invoice or other document or amendments expressed to be supplemental to this Agreement.

“We”, “Us”, “Our or “Ourselves”” means ABC Containers Pty Ltd ATF The Geoffrey Foster Campbell Family Trust T/A ABC Containers Pty Ltd, its successors and assigns or any person acting on behalf of and with the authority of ABC Containers Pty Ltd ATF The Geoffrey Foster Campbell Family Trust T/A ABC Containers Pty Ltd.

“You”, “Your” or “Yourself”” meansany person/s (end user) being of the legal age of eighteen (18) years.

“Incidental item(s)” means goods and/or services that may be purchased or sold through this Website to be supplied and/or provided by the Seller to You, as specified on Our Website.

“Website” means a location which is accessible on the Internet through the World Wide Web and which provides multimedia content via a graphical User Interface.

“Prohibited Content” means any content on any advertising media that:

(a)  is, or could reasonably be considered to be, in breach of the Broadcasting Services Act 1992; the Fair Trading Acts of the applicable States and Territories of Australia and the Competition and Consumer Act 2010 (CCA); or any other applicable law or applicable industry code; or

(b)  contains, or could reasonably be considered to contain, any misrepresentations; or is, or could reasonably be considered to be, misleading or deceptive, likely to mislead or deceive or otherwise unlawful; or

(c)  is, or could reasonably be considered to be, in breach of any person’s Intellectual Property Rights (including, but not limited to, the distribution of digital files or any other material in which We do not own the copyright).

“Personal Information” means any information that identifies or can be used to identify You, directly or indirectly. Examples of Personal Information include, but are not limited to, first and last name, date of birth, email address, gender, occupation, or other demographic information.

“Confidential Information” means information of a confidential nature whether oral, written or in electronic form including, but not limited to, this Agreement, a party’s Intellectual Property, operational information, know-how, trade secrets, financial and commercial affairs, contracts, Seller information and pricing details.

Acceptance

We reserve the right to change any of the Terms and Conditions displayed on this Website (including our Privacy Policy) at any time by notifying You through this Website that We have done so. By continuing to use this Website it shall be deemed that You agree to be bound by the amended terms and conditions as notified and posted on the Website.

If You intend to transact through this Website (i.e purchase goods and/or services) then You warrant that You are at least 18 years of age, that You have the power to enter into this Agreement and You acknowledge that this Agreement creates binding and valid legal obligations upon You.

Compliance with Laws

You represent and warrant that Your use of this Website will comply with all applicable laws and regulations (including but not limited to, EU Data Privacy Laws (including the General Data Protection Regulation “GDPR”) (collectively, “EU Data Privacy Laws”) and the Australian Privacy Policy Act 1988 (including the Privacy Amendment (Notifiable Data Breaches) Act 2017) or any other applicable laws.

Privacy Policy

We are committed to protecting Your Privacy in accordance with Australian Privacy Principles. We also recognise that when You choose to provide Us information about Yourself that You trust Us to act responsibly and in Your best interests therefore We have the following policies in place to protect Your personal information.

Storing Your Information

We will take all reasonable steps to ensure that Your information held by Us is accurate up-to date, complete, applicable, is not misleading and will only be used for the purposes stated in this document and/or Our Privacy Policy. We will maintain security safeguards to protect Your information and will take all reasonable steps to ensure that Your information is not disclosed to any unauthorised person or entity.

Securing Your Information

When making a transaction through this Website Your information will pass through a secure server using SSL (secure sockets layer) encryption technology. The encryption process ensures that Your information can not be read by or altered by outside influences.

Information We Collect

When You request Container(s) or Services We may collect Personal Information supplied by You when You complete an online form in order to facilitate the purchase of Container(s) and/or Services. Such information will enable Us to process Your transactions efficiently, analyse our Website services and enable Us to provide a higher level of customer service (which may include informative or promotional activities).

We may also collect the following information/tracking data for statistical purposes and to help Us understand how to make Our Website more available and user friendly for You and to measure the success of any advertising activities We may under take:

(a)  Your IP address.

(b)    The date and time of Your visits to Our Website.

(c)    Your clicks and activity on this Website.

(d)    The referring Website if any through which You clicked through to this Website.

(e)    Technical information on Your browser, device and operating systems.

Information We Release

We will only release information about You as authorised by Yourself, required by law or where required in order for Us to provide Container(s) or Services to Yourself e.g to third party suppliers, or delivery companies. Where supplied to such third parties the information provided will only be sufficient for the third party to perform their services and may not be used by them for any other purpose.

We will not release Your information for any purpose which You could reasonably expect us not to release the information.

Except as detailed above We do not share, give, sell, rent, or lease information to third parties and Your Personal Information will only be disclosed to those employees within Our organisation who have a need to know in order to ensure You are provided with information about Our products and Services or to request Container(s) and Services through this Website.

Under the Privacy Act legislation, You can ask to see any information We may hold about You and You also have the right to have any inaccuracies in the same corrected by Us. We will comply with any such requests to the extent required by the Privacy Act legislation within fourteen (14) days of the receipt of Your request. We may ask you to verify your identity in order to help us respond efficiently to your request.

Other Data Protection Rights

You may have the following data protection rights:

(a)      To access, correct, update or request deletion of Personal Information. We will take all reasonable steps to ensure that the data We collect is reliable for its intended use, accurate, complete and up to date.

(b)     In addition, individuals who are residents of the European Economic Area “EEA” can object to processing of their Personal Information, ask to restrict processing of their Personal Information or request portability of their Personal Information. You can exercise these rights by contacting Us using the contact details provided in the “Questions and Concerns” section below.

(c)     Similarly, if Personal Information is collected or processed on the basis of consent, the data subject can withdraw their consent at any time. Withdrawing Your consent will not affect the lawfulness of any processing We conducted prior to Your withdrawal, nor will it affect processing of Your Personal Information conducted in reliance on lawful processing grounds other than consent.

(d)     The right to complain to a data protection authority about the collection and use of Personal Information. For more information, please contact your local data protection authority. Contact details for data protection authorities in the EEA are available at http://ec.europa.eu/justice/article-29/structure/data-protection-authori….

Questions & Concerns

If You have any questions or comments, or if You have a concern about the way in which We have handled any privacy matter, please contact Us via email, post or the contact section of this website.

Attention: Privacy Officer

[email protected]

Postal Address:  PO Box 519

Scarborough WA 6922

Cookies

We and Our partners may use various technologies to collect and store information when You use this Website, and this may include using cookies and similar tracking technologies, such as pixels and web beacons. These web beacons track certain behavior such as whether the email sent through the Website was delivered and opened and whether links within the email were clicked. They also allow Us to collect information such as the recipient’s:

• IP address, browser, email client type and other similar details;
• Tracking of Website usage and traffic;
• Reports are available to Us when We send an email to You, so We may collect and review that information.

These cookies do not read Your hard drive but may be stored on Your hard drive to enable Our Website to recognise You when You return to the same.

Mailing Lists

If at any time You are on a mailing list of Ours then You may request to be removed from the same and We will comply with Your request if there is no unsubscribe button provided then please contact Us with Your request using the “Contact Us” section of this Website.

Returns, Damaged or Defective Container(s)

Our policy in relation to Returns, Damaged or Defective Container(s) shall be as specified in Our standard Terms and Conditions for the supply of Container(s) and Services. We shall not accept returns for change of mind or if You make a wrong decision unless due to our negligence or incorrect information supplied by Ourselves.

Copyright and Trademarks

The contents of this Website are at all times the copyright or trademark property of either Ourselves, Our suppliers or linked third parties and You may not distribute, reproduce, display, publish any trademark or other content of this Website for any purpose whatsoever without the prior written approval of Us, Our suppliers or linked third parties (each as applicable). Furthermore, You agree to indemnify Us against any claims, costs, damages or losses incurred by Us should You fail to comply with this clause.

Advertisers and Linked Sites

The display on Our Website of any advertiser or the provision of a link to third party Websites does not constitute Our endorsement of either the advertiser or third-party provider or any of their Website content (including but not limited to, any Prohibited Content) or business practices. As We do not have any control of the content of any third party Websites, access to such Websites is at Your sole risk and We recommend that You thoroughly review the terms and conditions of use and the Privacy policies of any third party Website immediately once You access such a Website.

We shall accept no liability in regards to any dealings, promotions or activities between Yourself and advertisers or third-party providers.

Specifications and Information

Specifications and information provided on this Website are given in good faith based on Our knowledge, experience, or information provided to Us by manufacturers and/or suppliers, or derived from sources believed to be accurate at the time the information is received by Us, therefore it is recommended if You have any concerns as to the suitability of Container(s) or Services provided through this Website in respect of the use of the Container(s) or Services or their suitability for a particular use that You contact Us or seek external professional opinion.

You acknowledge and accept that colours of items displayed on the Website may not reflect the true and actual colour of such items as this may be affected by external influences such as the quality of images supplied to Us for use, or the quality, age or settings on Your monitor. If colour is a major factor in Your decision making We recommend You contact Us before purchase.

On-Line Ordering

Display on this Website does not guarantee the availability of any particular Good(s) therefore all orders placed through this Website shall be subject to confirmation of acceptance by Us. Orders for Services shall be subject to confirmation of suitable timeframes between You and Ourselves for provision of the Services.

Continuous Service

Due to the inherent nature of Websites We cannot guarantee uninterrupted or continuous availability of this Website and You accept that the Website may also be unavailable from time to time for maintenance or scheduled upgrades. Where able We shall give You advanced warning of the same. We shall accept no liability in relation to Website downtime whether scheduled or otherwise.

Termination of Use

These terms and Your access to Our Website may be terminated by Us (at Our sole discretion) at any time without notice or any requirement to give You a reason why. In the event of termination under this clause We shall have no liability to You whatsoever (including for any consequential or direct loss You may suffer).

Jurisdiction

This Website (excluding any linked third-party sites) is controlled by Us from Our principal business premises in Australia. Our servers are located in Australia, so Your information may be transferred to, stored, or processed in Australia. It can be accessed from countries around the world to the extent permitted by the Website. As each country has laws that may differ from Australia, by accessing this Website, You agree that the laws and statutes of Australia shall apply to any dealings, actions or claims arising out of, or in relation to, this Agreement, or Your use of this Website, irrespective of any conflict with any laws and statutes applicable to Your country of domicile.

In addition, We or Our subcontractors may use cloud technology to store or process Personal Information, which may result in storage of data outside Australia. It is not practicable for Us to specify in advance which country will have jurisdiction over this type of offshore activity. All of Our subcontractors, however, are required to comply with the Australian Privacy Act in relation to the transfer or storage of Personal Information overseas.

You further acknowledge and agree that the filing of a claim against Us (if any) must be made in the State of WA in which our principal business premises in Australia is domiciled, and that any legal proceedings will be conducted in English.

We make no representation that Container(s) or Services offered through this Website are appropriate, available or suitable for use in countries outside of Australia, and accessing any material or content from, or through, this Website which is illegal in Your country of domicile is strictly prohibited.

General

The failure by either contracting party to enforce any provision of these terms and conditions shall not be treated as a waiver of that provision, nor shall it affect that party’s right to subsequently enforce that provision. If any provision of these terms and conditions shall be invalid, void, illegal or unenforceable the validity, existence, legality and enforceability of the remaining provisions shall not be affected, prejudiced or impaired.

We shall be under no liability whatsoever to You for any indirect and/or consequential loss and/or expense (including loss of profit) suffered by You arising out of a breach by Us of these terms and conditions (alternatively Our liability shall be limited to damages which under no circumstances shall exceed the Fee of the Services).

Message Boards: We provide Message Boards for the use of Our Website users. The Message Boards may not be used to promote Websites or any commercial or business activity. We are not responsible for any of the opinions expressed in the Message Boards. By posting a message to the message board You agree to take full legal responsibility and liability for your comments, including for offensive or defamatory statements.

Feedback: Feedback is provided for the purpose of facilitating trading by You on Our Website. Feedback provided on other parties must not contain offensive, defamatory, retaliatory or inappropriate language or content. We may remove any feedback that is considered to be offensive, defamatory, retaliatory or inappropriate.

You may only give feedback that relates to a specific transaction. You must not post feedback on a transaction that does not relate to that specific transaction.

You must not post feedback about Yourself or include any contact details or Personal Information in Your feedback.

Neither party shall be liable for any default due to any act of God, war, terrorism, strike, lock-out, industrial action, fire, flood, storm or other event beyond the reasonable control of either party.

TERMS OF TRADE

1. Definitions
   • “ABC” means ABC Containers Pty Ltd ATF The Geoffrey Foster Campbell Family Trust T/A ABC Containers Pty Ltd, its successors and assigns or any person acting on behalf of and with the authority of ABC Containers Pty Ltd ATF The Geoffrey Foster Campbell Family Trust T/A ABC Containers Pty Ltd.
   • “Charges” means the price payable (plus any GST where applicable) for the hire or purchase of Container(s) as agreed between ABC and the Client in accordance with clause 5
   • “Client” means the person/s, entities or any person acting on behalf of and with the authority of the Client requesting ABC to provide the Services as specified in any proposal, quotation, order, invoice, or other documentation, and:
     • if there is more than one Client, is a reference to each Client jointly and severally; and
     • if the Client is a partnership, it shall bind each partner jointly and severally; and
     • if the Client is on behalf of or part of, a Trust, shall be bound in its own capacity as a trustee; and
     • includes the Client’s executors, administrators, successors, and permitted assigns.
   • “Confidential Information” means information of a confidential nature whether oral, written or in electronic form including, but not limited to, this Contract, either party’s intellectual property, operational information, know-how, trade secrets, financial and commercial affairs, Contracts, client information (including but not limited to, “Personal Information” such as: name, address, D.O.B, occupation, driver’s license details, electronic contact (email, Facebook or Twitter details), medical insurance details or next of kin and other contact information (where applicable), previous credit applications, credit history) and pricing details.
   • “Container(s)” means all Container(s) or Services supplied by ABC to the Client at the Client’s request from time to time (where the context so permits the terms ‘Container(s)’ or ‘Services’ shall be interchangeable for the other).
   • “Contract” means the terms and conditions contained herein, together with any quotation, order, invoice or other document or amendments expressed to be supplemental to this Contract.
   • “Cookies” means small files which are stored on a user’s computer. They are designed to hold a modest amount of data (including Personal Information) specific to a particular client and website and can be accessed either by the web server or the client’s computer. If the Client does not wish to allow Cookies to operate in the background when using ABC’s website, then the Client shall have the right to enable / disable the Cookies first by selecting the option to enable / disable provided on the website, prior to making enquiries via the website.
   • “GST” means Container(s) and Services Tax as defined within the “A New Tax System (Container(s) and Services Tax) Act 1999” (Cth).

2. Acceptance
   • The Client is taken to have exclusively accepted and is immediately bound, jointly and severally, by these terms and conditions if the Client places an order for or accepts delivery of the Container(s).
   • If, however, the Client does not return a signed copy of this Contract to ABC within seven (7) days of receipt, and does not give ABC written notice of disapproval of the terms and conditions herein, and if the Client accepts and retains any Container(s) in their possession after the said seven (7) day period, then this Contract shall have the same force and effect as if it had been signed by the Client.
   • In the event of any inconsistency between the terms and conditions of this Contract and any other prior document or schedule that the parties have entered into, the terms of this Contract shall prevail.
   • Any amendment to the terms and conditions contained in this Contract may only be amended in writing by the consent of both parties.
   • The Client acknowledges that the supply of Container(s) on credit shall not take effect until the Client has completed a credit application with ABC and it has been approved with a credit limit established for the account.
   • In the event that the supply of Container(s) requested exceeds the Client’s credit limit and/or the account exceeds the payment terms, ABC reserves the right to refuse delivery.
   • Electronic signatures shall be deemed to be accepted by either party providing that the parties have complied with Section 10 of the Electronic Transactions Act 2011 or any other applicable provisions of that Act or any Regulations referred to in that Act.

3. Errors and Omissions
   • The Client acknowledges and accepts that ABC shall, without prejudice, accept no liability in respect of any alleged or actual error(s) and/or omission(s):
     • resulting from an inadvertent mistake made by ABC in the formation and/or administration of this Contract; and/or
     • contained in/omitted from any literature (hard copy and/or electronic) supplied by ABC in respect of the Services.
   • In the event such an error and/or omission occurs in accordance with clause 1, and is not attributable to the negligence and/or wilful misconduct of ABC; the Client shall not be entitled to treat this Contract as repudiated nor render it invalid.
   • In circumstances where the Client is required to place an order for Container(s), in writing, or otherwise as permitted by these terms and conditions, the Client is responsible for supplying correct order information such as, without limitation, measurements and quantity, when placing an order for Container(s) (whether they are made to order Container(s) or not) (“Client Error“). The Client must pay for all Container(s) it orders from ABC notwithstanding that such Container(s) suffer from a Client Error and notwithstanding that the Client has not taken or refuses to take Delivery of such Container(s). ABC is entitled to, at its absolute discretion to waive its right under this sub-clause in relation to Client Errors.

4. Change in Control
   • The Client shall give ABC not less than fourteen (14) days prior written notice of any proposed change of ownership of the Client and/or any other change in the Client’s details (including but not limited to, changes in the Client’s name, address, contact phone or fax number/s, change of trustees, or business practice). The Client shall be liable for any loss incurred by ABC as a result of the Client’s failure to comply with this clause.

5. Charges and Payment
   • At ABC’s sole discretion, the Charges shall be either:
     • as indicated on any invoice provided by ABC to the Client; or
     • ABC’s quoted Charges (subject to clause 2) which will be valid for the period stated in the quotation or otherwise for a period of twenty-four (24) hours.
   • ABC reserves the right to change the Charges if a variation to ABC’s quotation is requested. Variations will be charged for on the basis of ABC’s quotation, and will be detailed in writing, and shown as variations on ABC’s invoice. The Client shall be required to respond to any variation submitted by ABC within ten (10) working days. Failure to do so will entitle ABC to add the cost of the variation to the Charges. Payment for all variations must be made in full at the time of their completion.
   • At ABC’s sole discretion, a non-refundable deposit may be required.
   • Time for payment for the Container(s) being of the essence, the Charges will be payable by the Client on the date/s determined by ABC, which may be:
     • before delivery;
     • thirty (30) days following the end of the month in which a statement is posted to the Client’s address or address for notices;
     • the date specified on any invoice or other form as being the date for payment; or
     • failing any notice to the contrary, the date which is seven (7) days following the date of any invoice given to the Client by ABC.
   • Payment may be made by cheque, bank cheque, electronic/on-line banking, credit card – Visa, MasterCard or Amex (a surcharge may apply per transaction), or by any other method as agreed to between the Client and ABC.
   • ABC may in its discretion allocate any payment received from the Client towards any invoice that ABC determines and may do so at the time of receipt or at any time afterwards. On any default by the Client ABC may re-allocate any payments previously received and allocated. In the absence of any payment allocation by ABC, payment will be deemed to be allocated in such manner as preserves the maximum value of ABC’s Purchase Money Security Interest (as defined in the PPSA) in the Container(s).
   • The Client shall not be entitled to set off against, or deduct from the Charges, any sums owed or claimed to be owed to the Client by ABC nor to withhold payment of any invoice because part of that invoice is in dispute. Once in receipt of an invoice for payment, if any part of the invoice is in dispute, then the Client must notify ABC in writing within three (3) business days, the invoice shall remain due and payable for the full amount, until such time as ABC investigates the disputed claim, no credit shall be passed for refund until the review is completed. Failure to make payment may result in ABC placing the Client’s account into default and subject to default interest in accordance with clause 1.
   • Receipt by ABC of any form of payment other than cash shall not be deemed to be payment until that form of payment has been honoured, cleared, or recognised.
   • Unless otherwise stated the Charges does not include GST. In addition to the Charges, the Client must pay to ABC an amount equal to any GST ABC must pay for any supply by ABC under this or any other agreement for the sale of the Container(s). The Client must pay GST, without deduction or set-off of any other amounts, at the same time and on the same basis as the Client pays the Charges. In addition, the Client must pay any other taxes and duties that may be applicable in addition to the Charges except where they are expressly included in the Charges.

6. Credit Card Information
   • ABC will:
     • keep the Client’s personal details, including credit card details for only as long as is deemed necessary by ABC;
     • not disclose the Client’s credit card details to any third party; and
     • not unnecessarily disclose any of the Client’s personal information, except is accordance with the Privacy Act (clause 17) or where required by law.
   • The Client expressly agrees that, if pursuant to this Contract, there are any unpaid Charges, other amounts due and outstanding by the Client, any Container(s) supplied on hire that are lost or damaged or any other additional Charges are due from the Client which were not known at the time of the return of the Container(s), ABC is entitled to immediately charge the Client’s nominated credit card for these amounts, and is irrevocably authorised to complete any documentation and take any action to recover from the credit card issuer any and all amounts which may be due by the Client pursuant to the terms of this Contract.

7. Delivery
   • Delivery (“Delivery”) of the Container(s) is taken to occur at the time that:
     • the Client or the Client’s nominated carrier takes possession of the Container(s) at ABC’s address; or
     • ABC (or ABC’s nominated carrier) delivers the Container(s) to the Client’s nominated address even if the Client is not present at the address.
   • At ABC’s sole discretion, the cost of Delivery is in addition to the Charges.
   • ABC may deliver the Container(s) in separate instalments. Each separate instalment shall be invoiced and paid in accordance with the provisions in these terms and conditions.
   • The Client must take Delivery by receipt or collection of the Container(s) whenever they are tendered for Delivery.
   • Any time specified by ABC for Delivery of the Container(s) is an estimate only and ABC will not be liable for any loss or damage incurred by the Client because of Delivery being late. However, both parties agree that they shall make every endeavour to enable the Container(s) to be delivered at the time and place as was arranged between both parties. If ABC is unable to supply the Container(s) as agreed solely due to any action or inaction of the Client, then ABC shall be entitled to charge a reasonable fee for redelivery and/or storage.
8. Hire of the Container(s)
   • Charges shall commence from the time the Container(s) depart from ABC’s premises and will continue until the return of the Container(s) to ABC’s premises, and/or until the expiry of any applicable minimum hire period, whichever last occurs.
   • No allowance whatsoever can be made for time during which the Container(s) are not in use for any reason, unless ABC confirms special prior arrangements in writing. In the event of any breakdown of the Container(s), provided the Client notifies ABC immediately, Charges will not be payable during the time the Container(s) are not working, unless the condition is due to negligence or misuse on the part of or attributable to the Client.
   • The Client shall:
     • satisfy itself at commencement that the Container(s) are suitable for their purposes;
     • notify ABC immediately by telephone of the full circumstances of any mechanical breakdown or accident. The Client is not absolved from the requirements to safeguard the Container(s) by giving such notification;
     • at their own cost and expense, comply with all laws, regulations or orders of Federal, State or local governments (including all relevant stamp and other fiscal laws which in any way affect the Container(s) hired under this Contract);
     • not use the Container(s) for any illegal purpose or any use which would cause damage thereto, or store any illegal, prohibited, or unprotected corrosive/explosive substances or bulk commodities in or on the Container(s) which may corrode, oxidise, explode, dent, puncture, contaminate, stain or damage the interior or exterior of the Container(s);
     • not move the Container(s) from the nominated address without the express written approval of ABC;
     • grant ABC the right to enter the nominated address where the Container(s) are stored at all reasonable times to view the state thereof;
     • on termination of the hire period, return the Container(s) to ABC complete with all parts and accessories, clean and in good, serviceable condition as delivered, fair wear and tear accepted;
     • keep the Container(s) in their own possession and control and shall not assign the benefit of the hire agreement nor be entitled to lien over the Container(s);
     • not alter or make any additions to the Container(s) (including, but without limitation, altering, make any additions to, defacing or erasing any identifying mark, plate or serial number on or in the Container(s)), or in any other manner interfere with the Container(s) without the express written approval of ABC;
     • employ the Container(s) solely in their own work and shall not permit the Container(s) or any part thereof to be used by any other party for any other work;
     • not exceed the recommended or legal load and capacity limits of the Container(s);
     • not fix the Container(s) in such a manner as to make it legally a fixture forming part of any freehold.
   • For refrigerated units, the Client:
     • shall operate the Container(s) with an adequate power source;
     • is solely responsible for ensuring temperature settings on the Container(s) are to their requirements;
     • is responsible for arranging any repairs and maintenance of the Container(s) (at their expense), to be carried out by local/onsite qualified refrigeration technicians in the event that the container is outside the Perth metropolitan area.
   • Immediately on request by ABC the Client will pay:
     • the new list price of any Container(s) that are for whatever reason destroyed, written off or not returned to ABC;
     • all costs incurred in cleaning the Container(s);
     • all costs of repairing any damage caused by:
       • the ordinary use of the Container(s);
       • the negligence of the Client or the Client’s agent;
       • vandalism, or (in ABC’s reasonable opinion) in any way whatsoever other than by the ordinary use of the Container(s) by the Client;
     • any costs incurred by ABC in collecting and returning the Container(s) to ABC’s premises if the Client does not return the Container(s) to ABC’s premises or any pre-agreed pickup location when it was originally agreed that the Client would do so;
     • any lost hire fees ABC would have otherwise been entitled to for the Container(s), under this, or any other hire agreement;
     • any insurance excess payable in relation to a claim made by either the Client or ABC in relation to any damage caused by, or to, the Container(s) whilst the same is hired by the Client, and irrespective of whether charged by the Client’s insurers or ABC’s.
   • Only to the extent that the hire of the Equipment exceeds a six (6) month hire period shall clause 12 apply as a security agreement in the form of a PPS Lease in respect of Section 36 of the PPSA, in all other matters this clause 12 will apply generally for the purposes of the PPSA.

9. Sale of the Container(s)
   • Risk of damage to or loss of the Container(s) passes to the Client on Delivery and the Client must insure the Container(s) on or before Delivery.
   • If any Container(s) are damaged or destroyed following Delivery but prior to ownership passing to the Client, ABC is entitled to receive all insurance proceeds payable for the Container(s). The production of these terms and conditions by ABC is sufficient evidence of ABC’s rights to receive the insurance proceeds without the need for any person dealing with ABC to make further enquiries.
   • In the case of any second-hand Container(s), unless the Client is a consumer under the CCA, the Client acknowledges that it has had full opportunity to inspect the Container(s) prior to Delivery and accepts them with all faults and that to the extent permitted by law no warranty is given by ABC as to the quality or suitability for any purpose and any implied warranty, statutory or otherwise, is expressly excluded. The Client acknowledges and agrees that ABC has agreed to supply the Client with the Container(s), and calculated the Charges thereof, in reliance of this clause 3.

10. Compliance with Laws
    • The Client and ABC shall comply with the provisions of all statutes, regulations and bylaws of government, local and other public authorities that may be applicable to the

Modern Slavery

• For the purposes of clauses 2 to 10.7:
  • “Act” means the Modern Slavery Act 2018 (cth)
  • “Modern Slavery”, “Modern Slavery Statement” and “Reporting Entity” have the meanings given by the Act.
• If the Client is a Reporting Entity, it shall comply with all of its obligations under the Act.
• Whether the Client is a Reporting Entity or not, the Client shall:
  • use reasonable endeavours to identify, assess and address risks of Modern Slavery practices in its operations and supply chains;
  • use its reasonable endeavours to ensure that the personnel responsible for managing the operations and supply chains used for the purposes of the Contract have undertaken suitable training to identify and report Modern Slavery;
  • use its reasonable endeavours to ensure that if at any time the Client becomes aware of Modern Slavery practices in its operations and supply chains, the Client must as soon as reasonably practicable take all reasonable steps to address or remove these practices;
  • provide to ABC a copy of any Modern Slavery Statement that it submits under the Act within seven (7) days of so doing; and
  • within seven (7) days of ABC’s request (or such longer period as ABC agrees), provide to ABC any information or assistance reasonable requested by ABC;
    • concerning the Client’s compliance with the Act;
    • concerning the Client’s operations and supply chains;
    • to enable ABC to prepare a Modern Slavery Statement or otherwise comply with the Act; or
    • to enable ABC to assess and address risks of Modern Slavery practices in its operations and supply chains.
  • The parties agree that in the circumstances a breach arises pursuant to this clause or the terms of the Act, the parties will try and resolve the breach by way of remediation and ABC will be able to terminate the Contract for any breach by the Client.
  • The Client warrants that any information supplied to ABC is true and accurate and may be relied upon for the purposes of the Act.
  • The Client shall indemnify ABC against any loss or liability suffered by ABC as a result of the Client’s breach of this clause 10.

11. Title
    • Where this is a hire agreement:
      • the Container(s) are, and will at all times remain, the absolute property of ABC, however the Client accepts full responsibility for:
        • the safekeeping of the Container(s) and indemnifies ABC for all loss, theft, or damage to the Container(s) howsoever caused and without limiting the generality of the foregoing whether or not such loss, theft, or damage is attributable to any negligence, failure, or omission of the Client; and
        • shall keep ABC indemnified against all liability in respect of all actions, proceedings, claims, damages, costs and expenses in respect of any injury to persons, damage to property, or otherwise arising out of the use of the Container(s) during the hire period and whether or not arising from any negligence, failure or omission of the Client or any other persons; and
        • furthermore, the Client will insure, or self-insure, ABC’s interest in the Container(s) against physical loss or damage including, but not limited to, the perils of accident, fire, theft and burglary and all other usual risks and will effect adequate Public Liability Insurance covering any loss, damage or injury to property arising out of the Container(s). Further the Client will not use the Container(s), nor permit them to be used, in such a manner as would permit an insurer to decline any claim.
      • The Client is not authorised to pledge ABC’s credit for repairs to the Container(s) or to create a lien over the Container(s) in respect of any repairs.
    • Where is this an agreement for the purchase of the Container(s):
      • ABC and the Client agree that ownership of the Container(s) shall not pass until:
        • the Client has paid ABC all amounts owing to ABC; and
        • the Client has met all of its other obligations to ABC under this Contract.
      • it is further agreed that, until ownership of the Container(s) passes to the Client in accordance with sub-clause (a):
        • the Client is only a bailee of the Container(s) and must return the Container(s) to ABC on request;
        • the Client holds the benefit of the Client’s insurance of the Container(s) on trust for ABC and must pay to ABC the proceeds of any insurance in the event of the Container(s) being lost, damaged or destroyed;
        • the Client must not sell, dispose, or otherwise part with possession of the Container(s) other than in the ordinary course of business and for market value. If the Client sells, disposes or parts with possession of the Container(s) then the Client must hold the proceeds of any such act on trust for ABC and must pay or deliver the proceeds to ABC on demand;
        • the Client should not convert or process the Container(s) or intermix them with other goods but if the Client does so then the Client holds the resulting product on trust for the benefit of ABC and must sell, dispose of or return the resulting product to ABC as it so directs;
        • ABC may recover possession of any Container(s) in transit, whether or not Delivery has occurred;
        • the Client shall not charge or grant an encumbrance over the Container(s) nor grant nor otherwise give away any interest in the Container(s) while they remain the property of ABC;
        • ABC may commence proceedings to recover the Charges of the Container(s) sold notwithstanding that ownership of the Container(s) has not passed to the Client.
      • The Client grants ABC (or their agent) the right to (as the invitee of the Client) enter upon and into land and premises owned, occupied, or used by the Client, or any premises where the Container(s) are situated and take possession thereof, without being responsible for any damage thereby caused in the event of the following:
        • at the expiration of any hire period hereby granted; or
        • as a result of default by the Client (including, but not limited to, any default under clause 15 or where the Client fails to return the Container(s) to ABC); and
        • the Client shall have the Container(s) empty and ready for collection within forty-eight (48) hours. If the Client fails to adhere to this clause, ABC shall be entitled to:
          • charge the Client additionally until such time as the Container(s) are empty and ready for collection; and/or
          • retake possession of the Container(s), including any personal property of the Client stored therein. ABC shall have a lien on any such property for all sums payable by the Client to ABC, and ABC shall have the right to sell such property by public auction or private treaty after giving seven (7) days’ notice to the Client. ABC shall be entitled to retain the sums due to it, in addition to the charges incurred in the storage and sale of such property, from the proceeds of sale and shall render any surplus to the entitled person. Any such sale shall not prejudice or affect ABC’s right to recover from the Client any Charges due or payable in respect of the hire of the Container(s) or such storage and sale of the Client’s property.

12. Personal Property Securities Act 2009 (“PPSA”)
    • In this clause financing statement, financing change statement, security agreement, and security interest has the meaning given to it by the PPS
    • Upon assenting to these terms and conditions in writing the Client acknowledges and agrees that these terms and conditions constitute a security agreement for the purposes of the PPSA and creates a security interest in all Container(s) that have previously been supplied and that will be supplied in the future by ABC to the Client, and the proceeds from such Container(s).
    • The Client undertakes to:
      • promptly sign any further documents and/or provide any further information (such information to be complete, accurate and up-to-date in all respects) which ABC may reasonably require to;
        • register a financing statement or financing change statement in relation to a security interest on the Personal Property Securities Register;
        • register any other document required to be registered by the PPSA; or
        • correct a defect in a statement referred to in clause 3(a)(i) or 12.3(a)(ii);
      • indemnify, and upon demand reimburse, ABC for all expenses incurred in registering a financing statement or financing change statement on the Personal Property Securities Register established by the PPSA or releasing any Container(s) charged thereby;
      • not register a financing change statement in respect of a security interest without the prior written consent of ABC;
      • not register, or permit to be registered, a financing statement or a financing change statement in relation to the Container(s) or the proceeds of such Container(s) in favour of a third party without the prior written consent of ABC;
      • immediately advise ABC of any material change in its business practices of selling the Container(s) which would result in a change in proceeds derived from such sales.
    • ABC and the Client agree that sections 96, 115 and 125 of the PPSA do not apply to the security agreement created by these terms and conditions.
    • The Client waives their rights to receive notices under sections 95, 118, 121(4), 130, 132(3)(d) and 132(4) of the PPSA.
    • The Client waives their rights as a grantor and/or a debtor under sections 142 and 143 of the PPSA.
    • Unless otherwise agreed to in writing by ABC, the Client waives their right to receive a verification statement in accordance with section 157 of the PPSA.
    • The Client must unconditionally ratify any actions taken by ABC under clauses 3 to 12.5.
    • Subject to any express provisions to the contrary (including those contained in this clause 12), nothing in these terms and conditions is intended to have the effect of contracting out of any of the provisions of the PPSA.

13. Security and Charge
    • In consideration of ABC agreeing to supply the Container(s), the Client charges all of its rights, title and interest (whether joint or several) in any land, realty or other assets capable of being charged, owned by the Client either now or in the future, and the Client grants a security interest in all of its present and after-acquired property for the purposes of, including but not limited to registering ABC’s security interest over the Client on the PPSA, to secure the performance by the Client of its obligations under these terms and conditions (including, but not limited to, the payment of any money).
    • The Client indemnifies ABC from and against all ABC’s costs and disbursements including legal costs on a solicitor and own client basis incurred in exercising ABC’s rights under this clause.
    • The Client irrevocably appoints ABC and each director of ABC as the Client’s true and lawful attorney/s to perform all necessary acts to give effect to the provisions of this clause 13 including, but not limited to, signing any document on the Client’s behalf.

14. Defects, Warranties and Returns, Competition and Consumer Act 2010 (CCA)
    • The Client must inspect the Container(s) on Delivery and must within seven (7) days of Delivery notify ABC in writing of any evident defect/damage, shortage in quantity, or failure to comply with the description or quote. The Client must notify any other alleged defect in the Container(s) as soon as reasonably possible after any such defect becomes evident. Upon such notification the Client must allow ABC to inspect the Container(s).
    • Under applicable State, Territory and Commonwealth Law (including, without limitation the CCA), certain statutory implied guarantees and warranties (including, without limitation the statutory guarantees under the CCA) may be implied into these terms and conditions (Non-Excluded Guarantees).
    • ABC acknowledges that nothing in these terms and conditions purports to modify or exclude the Non-Excluded Guarantees.
    • Except as expressly set out in these terms and conditions or in respect of the Non-Excluded Guarantees, ABC makes no warranties or other representations under these terms and conditions including but not limited to the quality or suitability of the Container(s). ABC’s liability in respect of these warranties is limited to the fullest extent permitted by law.
    • If the Client is a consumer within the meaning of the CCA, ABC’s liability is limited to the extent permitted by section 64A of Schedule 2.
    • If ABC is required to replace the Container(s) under this clause or the CCA, but is unable to do so, ABC may refund any money the Client has paid for the Container(s).
    • If the Client is not a consumer within the meaning of the CCA, ABC’s liability for any defect or damage in the Container(s) is:
      • limited to the value of any express warranty or warranty card provided to the Client by ABC at ABC’s sole discretion;
      • limited to any warranty to which ABC is entitled, if ABC did not manufacture the Container(s);
      • otherwise negated absolutely.
    • Subject to this clause 14, returns will only be accepted provided that:
      • the Client has complied with the provisions of clause 1; and
      • ABC has agreed that the Container(s) are defective; and
      • the Container(s) are returned within a reasonable time at the Client’s cost (if that cost is not significant); and
      • the Container(s) are returned in as close a condition to that in which they were delivered as is possible.
    • Notwithstanding clauses 1 to 14.8 but subject to the CCA, ABC shall not be liable for any defect or damage which may be caused or partly caused by or arise as a result of:
      • the Client failing to properly maintain or store any Container(s);
      • the Client using the Container(s) for any purpose other than that for which they were designed;
      • the Client continuing the use of any Container(s) after any defect became apparent or should have become apparent to a reasonably prudent operator or user;
      • the Client failing to follow any instructions or guidelines provided by ABC;
      • fair wear and tear, any accident, or act of God.
    • Notwithstanding anything contained in this clause if ABC is required by a law to accept a return, then ABC will only accept a return on the conditions imposed by that law.

15. Default and Consequences of Default
    • Interest on overdue invoices shall accrue daily from the date when payment becomes due, until the date of payment, at a rate of two and a half percent (2.5%) per calendar month (and at ABC’s sole discretion such interest shall compound monthly at such a rate) after as well as before any judgment.
    • If the Client owes ABC any money, the Client shall indemnify ABC from and against all costs and disbursements:
      • incurred; and/or
      • which would be incurred and/or
      • for which by the Client would be liable;

in regard to legal costs on a solicitor and own client basis, internal administration fees, ABC’s Contract fees owing for breach of these terms and conditions’, including, but not limited to, contract default fees and/or recovery costs (if applicable), as well as bank dishonour fees.

• Further to any other rights or remedies ABC may have under this Contract, if a Client has made payment to ABC, and the transaction is subsequently reversed, the Client shall be liable for the amount of the reversed transaction, in addition to any further costs incurred by ABC under this clause 15 where it can be proven that such reversal is found to be illegal, fraudulent or in contravention to the Client’s obligations under this Contract.
• Without prejudice to ABC’s other remedies at law ABC shall be entitled to cancel all or any part of any order of the Client which remains unfulfilled and all amounts owing to ABC shall, whether or not due for payment, become immediately payable if:
  • any money payable to ABC becomes overdue, or in ABC’s opinion the Client will be unable to make a payment when it falls due;
  • the Client has exceeded any applicable credit limit provided by ABC;
  • the Client becomes insolvent, convenes a meeting with its creditors or proposes or enters into an arrangement with creditors, or makes an assignment for the benefit of its creditors; or
  • a receiver, manager, liquidator (provisional or otherwise) or similar person is appointed in respect of the Client or any asset of the Client.

16. Cancellation
    • Without prejudice to any other remedies ABC may have, if at any time the Client is in breach of any obligation (including those relating to payment) under these terms and conditions ABC may suspend or terminate the supply of Container(s) to the Client (or repossess the Container(s) under clause 3). ABC will not be liable to the Client for any loss or damage the Client suffers because ABC has exercised its rights under this clause.
    • ABC may cancel any Contract to which these terms and conditions apply or cancel Delivery of Container(s) at any time before the Container(s) are delivered by giving written notice to the Client. On giving such notice ABC shall repay to the Client any money paid by the Client for the Container(s). ABC shall not be liable for any loss or damage whatsoever arising from such cancellation.
    • If the Client cancels Delivery of Container(s), the Client shall be liable for all losses incurred (whether direct or indirect) by ABC as a direct result of the cancellation (including, but not limited to, any loss of profits).
    • Cancellation of orders for Container(s) made to the Client’s specifications, or for non-stocklist items, will not be accepted once production has commenced, or an order has been placed.

17. Privacy Policy
    • All emails, documents, images, or other recorded information held or used by ABC is Personal Information, as defined and referred to in clause 3, and therefore considered Confidential Information. ABC acknowledges its obligation in relation to the handling, use, disclosure and processing of Personal Information pursuant to the Privacy Act 1988 (“the Act”) including the Part IIIC of the Act being Privacy Amendment (Notifiable Data Breaches) Act 2017 (NDB) and any statutory requirements, where relevant in a European Economic Area (“EEA”), under the EU Data Privacy Laws (including the General Data Protection Regulation “GDPR”) (collectively, “EU Data Privacy Laws”). ABC acknowledges that in the event it becomes aware of any data breaches and/or disclosure of the Client’s Personal Information, held by ABC that may result in serious harm to the Client, ABC will notify the Client in accordance with the Act and/or the GDPR. Any release of such Personal Information must be in accordance with the Act and the GDPR (where relevant) and must be approved by the Client by written consent, unless subject to an operation of law.
    • Notwithstanding clause 1, privacy limitations will extend to ABC in respect of Cookies where the Client utilises ABC’s website to make enquiries. ABC agrees to display reference to such Cookies and/or similar tracking technologies, such as pixels and web beacons (if applicable), such technology allows the collection of Personal Information such as the Client’s:
      • IP address, browser, email client type and other similar details;
      • tracking website usage and traffic; and
      • reports are available to ABC when ABC sends an email to the Client, so ABC may collect and review that information (“collectively Personal Information”)

If the Client consents to ABC’s use of Cookies on ABC’s website and later wishes to withdraw that consent, the Client may manage and control ABC’s privacy controls via the Client’s web browser, including removing Cookies by deleting them from the browser history when exiting the site.

• The Client agrees that ABC may exchange information about the Client with those credit providers and with related body corporates for the following purposes:
  • to assess an application by the Client; and/or
  • to notify other credit providers of a default by the Client; and/or
  • to exchange information with other credit providers as to the status of this credit account, where the Client is in default with other credit providers; and/or
  • to assess the creditworthiness of the Client including the Client’s repayment history in the preceding two (2) years.
• The Client consents to ABC being given a consumer credit report to collect personal credit information relating to any overdue payment on commercial credit.
• The Client agrees that personal credit information provided may be used and retained by ABC for the following purposes (and for other agreed purposes or required by):
  • the provision of Container(s); and/or
  • analysing, verifying and/or checking the Client’s credit, payment and/or status in relation to the provision of Container(s); and/or
  • processing of any payment instructions, direct debit facilities and/or credit facilities requested by the Client; and/or
  • enabling the collection of amounts outstanding in relation to the Container(s).
• ABC may give information about the Client to a CRB for the following purposes:
  • to obtain a consumer credit report;
  • allow the CRB to create or maintain a credit information file about the Client including credit history.
• The information given to the CRB may include:
  • Personal Information as outlined in 3 above;
  • name of the credit provider and that ABC is a current credit provider to the Client;
  • whether the credit provider is a licensee;
  • type of consumer credit;
  • details concerning the Client’s application for credit or commercial credit (e.g. date of commencement/termination of the credit account and the amount requested);
  • advice of consumer credit defaults (provided ABC is a member of an approved OAIC External Disputes Resolution Scheme), overdue accounts, loan repayments or outstanding monies which are overdue by more than sixty (60) days and for which written notice for request of payment has been made and debt recovery action commenced or alternatively that the Client no longer has any overdue accounts and ABC has been paid or otherwise discharged and all details surrounding that discharge (e.g. dates of payments);
  • information that, in the opinion of ABC, the Client has committed a serious credit infringement;
  • advice that the amount of the Client’s overdue payment is equal to or more than one hundred and fifty dollars ($150).
• The Client shall have the right to request (by e-mail) from ABC:
  • a copy of the Personal Information about the Client retained by ABC and the right to request that ABC correct any incorrect Personal Information; and
  • that ABC does not disclose any Personal Information about the Client for the purpose of direct marketing.
• ABC will destroy Personal Information upon the Client’s request (by e-mail) or if it is no longer required unless it is required to fulfil the obligations of this Contract or is required to be maintained and/or stored in accordance with the law.
• The Client can make a privacy complaint by contacting ABC via e-mail. ABC will respond to that complaint within seven (7) days of receipt and will take all reasonable steps to reach a decision on the complaint within thirty (30) days of receipt of the complaint. If the Client is not satisfied with the resolution provided, the Client can make a complaint to the Information Commissioner at oaic.gov.au.

18. Service of Notices
    • Any written notice given under this Contract shall be deemed to have been given and received:
      • by handing the notice to the other party, in person;
      • by leaving it at the address of the other party as stated in this Contract;
      • by sending it by registered post to the address of the other party as stated in this Contract;
      • if sent by facsimile transmission to the fax number of the other party as stated in this Contract (if any), on receipt of confirmation of the transmission;
      • if sent by email to the other party’s last known email address.
    • Any notice that is posted shall be deemed to have been served, unless the contrary is shown, at the time when by the ordinary course of post, the notice would have been delivered.

19. Trusts
    • If the Client at any time upon or subsequent to entering in to the Contract is acting in the capacity of trustee of any trust (“Trust”) then whether or not ABC may have notice of the Trust, the Client covenants with ABC as follows:
      • the Contract extends to all rights of indemnity which the Client now or subsequently may have against the Trust and the trust fund;
      • the Client has full and complete power and authority under the Trust to enter into the Contract and the provisions of the Trust do not purport to exclude or take away the right of indemnity of the Client against the Trust or the trust fund. The Client will not release the right of indemnity or commit any breach of trust or be a party to any other action which might prejudice that right of indemnity;
      • the Client will not without consent in writing of ABC (ABC will not unreasonably withhold consent), cause, permit, or suffer to happen any of the following events:
        • the removal, replacement or retirement of the Client as trustee of the Trust;
        • any alteration to or variation of the terms of the Trust;
        • any advancement or distribution of capital of the Trust; or
        • any resettlement of the trust property.

20. General
    • The failure by either party to enforce any provision of these terms and conditions shall not be treated as a waiver of that provision, nor shall it affect that party’s right to subsequently enforce that provision. If any provision of these terms and conditions shall be invalid, void, illegal or unenforceable the validity, existence, legality and enforceability of the remaining provisions shall not be affected, prejudiced or impaired.
    • These terms and conditions and any Contract to which they apply shall be governed by the laws of Western Australia, and are subject to the jurisdiction of the courts in Perth, Western Australia. These terms prevail over all terms and conditions of the Client (even if they form part of the Client’s purchase order).
    • Subject to clause 14, ABC shall be under no liability whatsoever to the Client for any indirect and/or consequential loss and/or expense (including loss of profit) suffered by the Client arising out of a breach by ABC of these terms and conditions (alternatively ABC’s liability shall be limited to damages which under no circumstances shall exceed the Charges of the Container(s)).
    • ABC may licence and/or assign all or any part of its rights and/or obligations under this Contract without the Client’s consent.
    • The Client cannot licence or assign without the written approval of ABC.
    • ABC may elect to subcontract out any part of the Services but shall not be relieved from any liability or obligation under this Contract by so doing. Furthermore, the Client agrees and understands that they have no authority to give any instruction to any of ABC’s sub-contractors without the authority of ABC.
    • The Client agrees that ABC may amend their general terms and conditions for subsequent future Contracts with the Client by disclosing such to the Client in writing. These changes shall be deemed to take effect from the date on which the Client accepts such changes, or otherwise at such time as the Client makes a further request for ABC to provide Container(s) to the Client.
    • Neither party shall be liable for any default due to any act of God, war, terrorism, strike, lock-out, industrial action, fire, flood, storm, national or global pandemics and/or the implementation of regulation, directions, rules or measures being enforced by Governments or embargo, including but not limited to, any Government imposed border lockdowns (including, worldwide destination ports), etc, (“Force Majeure”) or other event beyond the reasonable control of either party. This clause does not apply to a failure by the Client to make a payment to ABC.
    • Both parties warrant that they have the power to enter this Contract and have obtained all necessary authorisations to allow them to do so, they are not insolvent and that this Contract creates binding and valid legal obligations on them.
    • This Contract and any subsequent hire agreement between ABC and the Client, shall constitute as the entire agreement between ABC and the Client, and the Client hereby acknowledges that no reliance is placed on any representation made by ABC that is not embodied in this Contract.
    • The rights and obligations of the parties will not merge on completion of any transaction under this Contract, and they will survive the execution and Delivery of any assignment or other document entered, for the purpose of, implementing any transaction under this Contract.

PERSONAL GUARANTEE

Personal/Directors Guarantee and Indemnity

IN CONSIDERATION of ABC Containers Pty Ltd ATF The Geoffrey Foster Campbell Family Trust T/A ABC Containers Pty Ltd and its successors and assigns (“ABC”) at the request of the Guarantor (as is now acknowledged) supplying and continuing to supply container(s) and/or services to “the Client”

By engaging with ABC, the client agrees to unconditionally and irrevocably:

1. GUARANTEE the due and punctual payment to ABC of all monies which are now owing to ABC by the Client and all further sums of money from time to time owing to ABC by the Client in respect of container(s) and services supplied or to be supplied by ABC to the Client or any other liability of the Client to ABC, and the due observance and performance by the Client of all its obligations contained or implied in any contract or agreement with ABC, including but not limited to the Terms & Conditions of Trade signed by the Client and annexed to this Guarantee and Indemnity. If for any reason the Client does not pay any amount owing to ABC, the Guarantor will immediately on demand pay the relevant amount to ABC. In consideration of ABC agreeing to supply the container(s) and/or services to the Client, the Guarantor charges all of its right, title and interest (joint or several) in any land, realty or other assets capable of being charged, owned by the Guarantor now or in the future, to secure the performance by the Guarantor of its obligations under this Guarantee and Indemnity (including, but not limited to, the payment of any money) and the Guarantor acknowledges that this personal guarantee and indemnity constitutes a security agreement for the purposes of the Personal Property Securities Act 2009 (“PPSA”) and unequivocally consents to ABC registering any interest so charged. Furthermore, it is agreed by both parties that where the Guarantor is acting in the capacity as a trustee for a trust, then the Guarantor agrees to charge all its right title and interest in any land realty, or other assets capable of being charged in its own capacity and in its capacity as trustee and shall be subject to the PPSA Registration as stated above. The Guarantor irrevocably appoints ABC and each director of ABC as the Guarantor’s true and lawful attorney/s to perform all necessary acts to give effect to this clause including, but not limited to, signing any document on the Guarantor’s behalf which ABC may reasonably require to:

• register a financing statement or financing change statement in relation to a security interest on the Personal Property Securities Register;
• register any other document required to be registered by the PPSA or any other law; or
• correct a defect in a statement referred to in clause 1(a) or 1(b).

2. HOLD HARMLESS AND INDEMNIFY ABC on demand as a separate obligation against any liability (including but not limited to damages, costs, losses, and legal fees calculated on a solicitor and own client basis) incurred by, or assessed against, ABC in connection with:

• the supply of container(s) and/or services to the Client; or
• the recovery of monies owing to ABC by the Client including the enforcement of this Guarantee and Indemnity, and including but not limited to ABC’s nominees contract default fee and legal costs; or
• monies paid by ABC with the Client’s consent in settlement of a dispute that arises or results from a dispute between, ABC, the Client, and a third party or any combination thereof, over the supply of container(s) and/or services by ABC to the Client.

The client further acknowledges and agrees that:

3. I/We have received, read, and understood ABC’s Terms and Conditions prior to entering into this Guarantee and Indemnity and agree to be bound by those Terms and Conditions.
4. This Guarantee and Indemnity shall constitute an unconditional and continuing Guarantee and Indemnity and accordingly shall be irrevocable and remain in full force and effect until all monies owing to ABC by the Client and all obligations herein have been fully paid satisfied and performed.
5. No granting of credit, extension of further credit, or granting of time and no waiver, indulgence, or neglect to sue on ABC’s part (whether in respect of the Client or any one or more of any other Guarantor(s) or otherwise) and no failure by any named Guarantor to properly execute this Guarantee and Indemnity shall impair or limit the liability under this Guarantee and Indemnity of any Guarantor. Without affecting the Client’s obligations to ABC, each Guarantor shall be a principal debtor and liable to ABC accordingly.
6. The liability under this Guarantee and Indemnity shall not be discharged, abrogated, prejudiced, or affected by:

• any alteration, modification, variation or addition to any contract or agreement in respect of the supply of container(s) and/or services;
• the liquidation, receivership, administration, bankruptcy, dissolution, compromise or scheme of arrangement in respect of the Client;
• any other act, omission, or event which, but for this provision, might operate to discharge, impair, or otherwise affect any obligations under this Guarantee and Indemnity of any of the rights, powers or remedies conferred by this Guarantee and Indemnity or by law.

7. The term “Guarantor” whenever used in this Guarantee and Indemnity shall, if there is more than one person named as Guarantor, mean, and refer to each of them individually and all of them together unless the context otherwise requires, the obligations and agreements on the part of the Guarantor, shall include the Guarantor’s executors, administrators, successors and permitted assignments (where applicable) contained in this Guarantee and Indemnity shall bind them jointly and severally.
8. I/We have been advised to obtain independent legal advice before executing this Guarantee and Indemnity. I/we understand that I/we am/are liable for all amounts owing (both now and in the future) by the Client to ABC.
9. I/we irrevocably authorise ABC to obtain from any person or company any information which ABC may require for credit reference purposes. I/We further irrevocably authorise ABC to provide to any third party, in response to credit references and enquiries about me/us or by way of information exchange with credit reference agencies, details of this Guarantee and Indemnity and any subsequent dealings that I/we may have with ABC as a result of this Guarantee and Indemnity being actioned by ABC.

The above information is to be used by ABC for all purposes in connection with ABC considering this Guarantee and Indemnity and the subsequent enforcement of the same.