Terms and Conditions
Footlink Pty Ltd (ABN 143 153 078 936) Apple iPad 3D Terms and Conditions
These terms and conditions are used by Footlink Pty Ltd (ABN 143 153 078 936) (“Footlink Pty Ltd”) for rental agreements throughout Australia and New Zealand.
The Consumer Credit Code of the Country, State and Territory in which the client resides will apply to this agreement if the client is an individual and the equipment is rented wholly or predominantly for personal domestic or household purposes.
1. Acquisition and Delivery of the Equipment
1.1 Footlink Pty Ltd has acquired the equipment, or will acquire it, at the request of the client so that Footlink Pty Ltd can enter into this agreement.
1.2 The client must obtain delivery of the equipment and is responsible for installation and set-up. If requested by the Footlink Pty Ltd, the client must execute an acknowledgement of delivery in a form acceptable to Footlink Pty Ltd.
1.3 Footlink Pty Ltd is not responsible for any delay in, or for any damage or loss arising as a result of, installation or set-up of the equipment.
2. Ownership of the Equipment
2.1 The equipment, is and will remain, the sole property of Footlink Pty Ltd, whether or not affixed to realty and shall not become or be made to become part of any real property on which it is placed. The client has no right to purchase the equipment.
2.2 Footlink Pty Ltd has not given any rights or expectation, nor made any representations, to the client regarding this agreement or the acquisition, use, operation, performance, delivery, installation or tax treatment of the equipment (or equipment of a similar value and description) by the client at any time.
3.1 The client must pay the rent in full, on a monthly basis, no later than thirty days from the end of the month that the tax invoice is dated. The client must also pay any other money due under this agreement no later than thirty days from the end of the month that any tax invoice is dated.
3.2 The client must pay a late charge of $25.00 for each and every month an invoice falls overdue.
3.3 Unless Footlink Pty Ltd otherwise agrees, payments must be made directly into their bank account, or online via credit card.
3.4 The client’s obligation to pay the rent and other amounts due under this agreement is unconditional, even if the equipment is damaged, lost or stolen. All payments are to be made without set-off, deductions or withholding on any account.
4. Obligations of the Client
4.1 Unless otherwise agreed in writing, the client must as its own expense:-
a) Properly maintain and request service of the equipment and keep it in good order and repair (normal wear and tear excepted);
b) Have the equipment maintained and repaired only by Footlink Pty Ltd.
c) Comply with the manufacturer’s instructions and recommendations relating to the equipment;
d) Use or keep the equipment only in a place that would normally be deemed acceptable for such equipment, or in such other place as the Footlink Pty Ltd approves in writing;
e) Produce the equipment for inspection or testing by Footlink Pty Ltd or its nominee at the request of the Footlink Pty Ltd. (subject to clause 12.3 if applicable) allow Footlink Pty Ltd or its nominee access to any place where the equipment is kept for any purpose relating to this agreement;
4.2 If the equipment is lost or stolen, the client must immediately inform the police and provide Footlink Pty Ltd with a copy of the police report. If the client has maintained rental payments together with the monthly insurance premium, and no rental invoice is overdue, an invoice for the insurance excess will be issued. If a rental invoice is overdue for payment, Footlink Pty Ltd will issue the client with a replacement cost invoice for the equipment which will be due and payable by the client.
5. Restrictions on the Client
5.1 The client must not:-
a) Modify the equipment.
b) Create any lien or other encumbrance over the equipment or this agreement pursuant to clause 16.1.
6.1 The client must:-
a) Accept that the equipment is insured by Footlink Pty Ltd and not seek alternative insurance.
b) Pay in full, together with the rent, the monthly insurance premium.
c) Accept that the insurance does not cover accessories or any other items not supplied by Footlink Pty Ltd
d) Not do anything or permit anything to be done which might prejudice or invalidate any of the insurance policies;
7. Risk and Indemnities
7.1 The client assumes all risks and liability in relation to the equipment and the use, operation, possession, performance, maintenance, repair and storage of it (including liability for injury to any person or damage to any property, whether direct or consequential) for the period up until the equipment is returned to Footlink Pty Ltd.
7.2 The client indemnifies Footlink Pty Ltd against all losses, liabilities and expenses incurred by the Footlink Pty Ltd as a result of:
a) Loss of, or damage to, the equipment by an causes (including lawful confiscation);
b) Anything done by or with the equipment;
c) Any other thing in relation to which the client has assumed the risk or liability pursuant to clause 8.1; or
d) The occurrence of any event referred to in clause 1;
e) Any infringement of intellectual property rights in relation to the equipment. The client must pay to the Footlink Pty Ltd on demand any amount payable under this indemnity.
8. Destruction of the Equipment
8.1 If the equipment is lost, stolen or totally or substantially destroyed – Footlink Pty Ltd may terminate this agreement by notice to the client.
8.2 Within 30 days from the end of the month an invoice is dated, the client must pay to Footlink Pty Ltd the Recoverable Amount as if the client had been deemed to have repudiated this agreement and Footlink Pty Ltd had terminated this agreement for that reason.
9. Footlink Pty Ltd May Take Action
9.1 If for any reason the client fails to comply with any of its obligations under this agreement Footlink Pty Ltd may in its discretion do anything necessary to make good that failure (but without affecting any other right or remedy of Footlink Pty Ltd as a result of that failure) and do anything (including taking any legal proceedings) which Footlink Pty Ltd considers desirable to protect or enforce its rights in relation to the equipment and this agreement. The client irrevocably authorises Footlink Pty Ltd to use the name of the client, and to act on its behalf, in doing any such thing. The client is to indemnify Footlink Pty Ltd in respect of any payments made by Footlink Pty Ltd pursuant to this clause.
10. Termination by Client
10.1 If the Code applies to the agreement, the client may terminate the agreement at any time before the end of the Term by:
a) Returning the equipment to Footlink Pty Ltd in accordance with the requirements of clause 12.1; and
b) By paying to Footlink Pty Ltd any Recoverable Amount.
11. Procedure on Termination
11.1 Upon expiry of the agreement at the end of the Term (and is not extended in accordance with clause 12.4) or it is terminated under clause 11 or clause 14, the client must immediately return the equipment to Footlink Pty Ltd in good working order and in good repair (reasonable wear and tear excepted) accompanied by any related operating manuals during ordinary business house to the place nominated in writing by Footlink Pty Ltd and in compliance with clause 6.2 of this agreement.
11.2 Subject to clause 12.3, if the client does not return the equipment to Footlink Pty Ltd when required, Footlink Pty Ltd may at any time retake possession of the equipment and the client hereby:
a) Authorises Footlink Pty Ltd to enter any premises where the equipment is located to dismantle the equipment and remove it;
b) Releases Footlink Pty Ltd from any liability which Footlink Pty Ltd might otherwise have for any damage or loss caused by Footlink Pty Ltd retaking possession of the equipment in accordance with this clauses; and
c) Must reimburse to Footlink Pty Ltd on demand all costs and expenses incurred by Footlink Pty Ltd in retaking or attempting to retake possession of the equipment including, without limitation, costs and expenses incurred in doing anything contemplated in paragraph (a) and any money paid by Footlink Pty Ltd in relating any lien claimed over the equipment.
11.3 If the Code applies to this agreement:-
a) Footlink Pty Ltd will not enter any part of the premises used for residential purposes for the purpose of taking possession of the equipment unless a court has authorised entry, or the occupier of the premises, after being informed in writing of their rights under the Code, has given consent in writing; and
b) Footlink Pty Ltd will give the client 30 days written notice of their intention to exercise its rights under this agreement taking possession of the equipment (unless notice is not required under the Code).
12 Default Events
12.1 For the purposes of this agreement, a “Default Event” applies to both the client and any guarantor and occurs if:
a) The client does not pay on the due date any instalment of rent or other money payable under this agreement;
b) The client defaults in its obligations under clause 5, 7.1, 16.1 and 19 of this agreement;
c) The equipment is lost or destroyed or Footlink Pty Ltd forms the opinion that the equipment is so damaged as to make its repair impracticable or uneconomic, and the rental agreement is not finalised and fully paid out by the insurer or we have waived the right to claim the cost of repair or replacement of the equipment;
d) The client does not comply with any of its other obligations under this agreement and if that failure to comply can be rectified it is not rectified within 7 days after Footlink Pty Ltd gives the client notice requiring the client to do so;
e) The client makes a composition, arrangement or compromise with, or an assignment for the benefit, of, its creditor or any class of them;
f) If the client is a corporation, action is taken by Footlink Pty Ltd, another person or the client on the basis that the client is insolvent or unable to pay their debts when they are due, including any application for the appointment of a liquidator, provisional liquidator, receiver or administrator;
g) The holder of any security at any time over any of the client’s assets becomes entitled to exercise any power to enforce security;
h) Whether the client is an individual, the individual committing an act of bankruptcy or being made bankruptcy;
i) Distress or execution being levied against equipment and the breach within the grace period;
j) Breach of a representation or warranty made by the client if the client does not remedy when requested by Footlink Pty Ltd.
13. Termination by Footlink Pty Ltd & Exclusion of Warranties
13.1 The occurrence of a Default Event is a breach of a condition of this agreement.
13.2 The client undertakes to notify Footlink Pty Ltd of the occurrence of default event.
13.3 If a Default Event occurs, the client will be deemed to have repudiated the agreement and Footlink Pty Ltd will be entitled to terminate the agreement by written notice to the client or by any act of repossession.
13.4 Apart from terms, conditions and warranties which are implied by law and are incapable of exclusion, Footlink Pty Ltd does not give condition, warranty or representation as to ownership, description, condition, merchantability, suitability or fitness of the equipment for a particular purpose, and no such term, condition or warranty will be implied.
13.5 Footlink Pty Ltd liability for breach of any implied term, condition or warranty which is incapable of exclusion is (where permitted by law) limited to the replacement of the equipment or the supply of the equivalent equipment, or the payment of the cost of having the equipment repaired, as determined by Footlink Pty Ltd at their discretion.
13.6 Except as provided for in clause 15.2, and notwithstanding any implications arising from any other clause, Footlink Pty Ltd will not be liability to the client or any persons claiming under the client in contract or in tor in respect of any direct, indirect or consequential person, arising out of or relating to the agreement, its performance, any delay in its performance or its non- performance (including, but not limited to liability due to negligence) or any error (whether negligent or not) in information supplied to the client before or after the date of the agreement or in connection with the equipment.
14. Assignment to Third Parties
14.1 The client must not sub-let, assign, encumber, part with possession of, allow a third party to use, or otherwise dealt with the equipment or its rights under this agreement or agree or attempt to do so, without the consent of Footlink Pty Ltd. Footlink Pty Ltd may assign, encumber or otherwise deal with its rights under this agreement in any way (subject to the rights of the client under this agreement).
14.2 The client must notify Footlink Pty Ltd if the equipment or any part of it is seized or if a casualty occurs.
14.3 The client may not object to Footlink Pty Ltd entering into this agreement as agent for another person (whether disclosed or not) or to that other person being the true owner of the equipment.
15. Amounts Payable By The Client
15.1 The client must pay (or, if paid by Footlink Pty Ltd, reimburse Footlink Pty Ltd on demand) for:
a) All other costs and expenses including legal costs in an indemnity basis incurred by Footlink Pty Ltd in relation to this agreement or the exercise or attempted exercise of any of Footlink Pty Ltd’s rights under it.
16. Client Warranties
16.1 In the case of a corporation, the client represents and warrants to Footlink Pty Ltd that:
a) The client is validly existing under the applicable law;
b) The client has the power and authority to enter into this agreement;
c) The client has executed this agreement on its own behalf and in its capacity as trustee of any trust including the trust specified in the schedule;
d) The execution and delivery by the client of this agreement and the performance of the client’s obligations have been duly authorized by all necessary corporation agreement and do not:-
i. contravene the provisions of or constitute a default under any contract or other instrument to which the client is a party or by which the client is bound; or
ii. result in the creation of any encumbrance upon the equipment or any property of the client;
e) the person or persons executing this agreement on behalf of the client is duly authorised to execute the agreement and upon the execution this agreement, the agreement will constitute the legal and binding agreement of the client enforceable against the client.
17. Miscellaneous Provisions
17.1 This agreement may only be varied or replaced by a written document signed by Footlink Pty Ltd. The agreement cannot be cancelled or terminated except as provided by this agreement.
17.2 A right of Footlink Pty Ltd, a breach of the obligation of the client or an event of default under this agreement can only be waived by a written instrument signed by Footlink Pty Ltd. No other act, omission or delay of Footlink Pty Ltd will constitute a waiver. A single or partial exercise or waiver by Footlink Pty Ltd of a right relating to this agreement will not prevent any other exercise of that right or the exercise of any other right.
17.3 This is the only agreement between Footlink Pty Ltd and the client with respect to the equipment.
17.4 Each provision of this agreement is an independent provision. Any provision which would otherwise be prohibited or unenforceable in any jurisdiction is, to the extent of the unenforceability be deemed removed without invalidating, so far a possible, the remaining provisions of the agreement.
17.5 A statement or certificate given by or on behalf of Footlink Pty Ltd stating the amount owed by the client to Footlink Pty Ltd and/or the occurrence of any event shall be conclusive evidence of the amount or event, unless the contract is provided.
17.6 If the client was introduced or referred to Footlink Pty Ltd in relation to this transaction by a third party, the client consent to Footlink Pty Ltd paying commission to that third party and to the inclusion of that commission in the calculation of rent payable under this agreement.
17.7 Time is of the essence with respect to the performance of the client’s obligations under this agreement.
17.8 Whether two or more person comprise the client, a reference to the client includes each of them and all of them and the obligations of the client bind them jointly and separately.
17.9 The client allows Footlink Pty Ltd to complete any blank spaces in the agreement including the insertion of identification details of the equipment.
17.10 The client shall promptly execute and deliver to Footlink Pty Ltd (or any assignee) such further documents and take such further action as Footlink Pty Ltd my require in order to more effectively carry out the intent and purpose this agreement (and any assignment by Footlink Pty Ltd of its rights under this agreement) and to protect the interest of Footlink Pty Ltd (or any assignee in this equipment)
17.11 Unless the context otherwise requires;-
a) Words denoting the singular include the plural and vice versa and works denoting one gender include each gender;
b) Words denoting a person include a corporation and vice versa;
c) Heading are for convenience only and do not affect the interpretation of this agreement;
d) A reference to a party includes its successors and permitted assigned; and
e) A reference to this equipment includes any parties or accessories form time to time attached to or forming part of the equipment, whether in addition to or in replacement or any part of the equipment referred to in the schedule.
18. Maintenance Charges
18.1 If any maintenance charges in relation to the equipment are included in the rent set out above, the client acknowledges that:
a) Those charges have been includes at the request of the client in conjunction with a direction which the client has given to Footlink Pty Ltd to pay those charges to the person providing maintenance services in relation to the equipment;
b) Footlink Pty Ltd is not responsible or the maintenance of the equipment nor related to, or associated in any way with, the provider of those maintenance services; and
c) No failure to perform or other breach by the provider of those maintenance services will, in any way, effect the clients obligation to pay rent and other monies payable under this agreement and to perform its other obligations under this agreement.
19. Personal Property Securities Register
19.1 This clause applies to the extent that the Agreement provides for a ‘security Interest’ for the purposes of the Personal Property Securities Act 2009 (Cth) (“PPS Law”).
19.2 References to PPS Law in this document include references to amended, replacement and successor provisions of it.
19.3 Footlink Pty Ltd is at liberty to register its security interest as a purchase money security interest under the PPS Law (“PMSI”). The client must do anything (such as obtaining consents and signing documents) which Footlink Pty Ltd requires for the purposes of:
a) ensuring that Footlink Pty Ltd’s security interest is enforceable, perfected and otherwise effective under the PPS Law;
b) enabling Footlink Pty Ltd to gain first priority (or any other priority agreed to Footlink Pty Ltd in writing) for its security interest; and
c) enabling Footlink Pty Ltd to exercise rights in connection with the security interest.
19.4 Footlink Pty Ltd may recover from the client the cost of doing anything under this clause, including but not limited to registration fees.
19.5 The rights of Footlink Pty Ltd under this document are in addition to and not in substitution for Footlink Pty Ltd’s rights under any other law (including PPS Law) and Footlink Pty Ltd may choose whether to exercise rights under the PPSA, enforce the terms of these terms and conditions, and/or under other law, as it sees fit.
19.6 To the extent that Chapter 4 of the PPS applies to the security interest under this agreement, the following provisions of the PPS Law do not apply and, for the purposes of section 115 of the PPS Law are “contracted out” of this Agreement in respect of all goods to which that section can be applied:
a) section 95 (notice of removal of accession to the extent it requires the Company to give notice to the Renter);
b) section 96 (retention of accession);
c) section 121(4) (notice to grantor);
d) section 125 (obligations to dispose of or retain collateral);
e) section 130 (notice of disposal to the extent it requires the Company to give notice to the Renter);
f) section 129(2) and 129(3);
g) section 132(3)(d) (contents of statement of account after disposal);
h) section 132(4) (statement of account if no disposal);
i) section 135 (notice of retention);
j) section 142 (redemption of collateral); and
k) section 143 (reinstatement of security agreement).
19.7 The following provisions of the PPS Law confer rights on Footlink Pty Ltd:
a) section 123 (seizing collateral);
b) section 126 (apparent possession)
c) section 128 (secured party may dispose of collateral);
d) section 129 (disposal by purchase); and
e) section 134(1) (retention of collateral).
19.8 The client agrees that in addition to those rights, Footlink Pty Ltd shall, if there is default by the client, 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 this document and the client agrees that Footlink Pty Ltd may do so in any manner it sees fit, including (in respect of dealing and disposal) by private or public sale, lease or licence.
19.9 Footlink Pty Ltd waives its rights to receive a verification statement in relation to registration events in respect of commercial property under section 157 of the PPS Law.
19.10 Footlink Pty Ltd and the client agree not to disclose information of the kind that can be requested under section 275(1) of the PPS Law. The client must do everything necessary on its part to ensure that section 275(6)(a) of the PPS Law continues to apply to it. The Agreement in this sub-clause is made solely for the purposes of allowing Footlink Pty Ltd the benefit of section 275(6)(a) and Footlink Pty Ltd shall not be liable to pay damages or any other compensation or be subject to injunction if Footlink Pty Ltd breaches this sub-clause.
“Agreement” means the agreement formed by the Schedule and these Terms and Conditions.
“Business Day” means a day, on which Footlink Pty Ltd is open for business.
“Recoverable Amount” means the total, at the date of termination, of:
a) The rent payments and other monies (including any late fees) which have fallen due but have not been paid;
b) The present value of all rent payment (excluding any tax or duty) which are still to fall due (as calculated by apply the Rebate Rate to each payment of for the period by which the date for its payment if brought forward);
c) Any amount payable pursuant to Clause 17;
d) Any enforcement expenses, including any costs incurred by us in taking possession of the goods and storing them; and
e) If the equipment is returned to, or possession is otherwise obtained by Footlink Pty Ltd the sale price of the goods net of sale costs, expenses and any Goods and Services Tax payable in connection with the sale, or if Footlink Pty Ltd chooses, the value of the goods net of valuation costs and expenses; and
f) Any insurance money received by Footlink Pty Ltd if the goods are stolen, lost, destroyed or damages less any Goods and Services Tax payable by Footlink Pty Ltd in connection with the insurance payment. If the sum of the amounts referred to in paragraph (e) and (f) exceed the sum of the amount in paragraph (a) to (d) the Recoverable Amount is Nil.