Blackbox Terms and Conditions
“Owner” is The Trustee for Blackbox Australia Unit Trust – ABN 19969154575 and its associates. “Customer” is the person, firm, organisation, corporation or other entity hiring Equipment from the Owner
“Guarantor” is the person signing the Hire Agreement on behalf of the Customer.
“Equipment” means all equipment including Controller, camera, solar panel, mobile equipment, accessories and parts supplied to the Customer.
“Environmental Event” includes but is not limited to lightning strike, rain, flood, hail, earthquakes, storm, or any other environmental event or combination of them.
“Hire Agreement” means the agreement between Owner and Customer provided to the Customer (whether signed or not) for the hire of Equipment and shall include these Standard Conditions of Hire, any other Special Conditions and any quote given by the Owner for hire of the Equipment.
2. Title to Equipment
2.1 The Customer acknowledges that in all circumstances the Owner retains title to the Equipment (even if the Customer goes into liquidation or becomes bankrupt during the hire period) and the Equipment will not constitute a fixture. The Customer’s right to possess the Equipment is as a bailee only.
2.2 The Customer will not be entitled to offer, sell, assign, sub-let, mortgage, pledge or otherwise deal with the Equipment in any way which is inconsistent with the rights of the Owner as owner of the Equipment nor will the Customer be permitted or authorised to lend or re-hire the Equipment to any other person, rm, organisation, corporation or other entity
3. Hire Period
3.1 The Customer is entitled to use the Equipment for the period of time specified in the Hire Agreement and shall not be varied unless the Owner agrees in writing.
3.2 The hire period starts when the Customer takes possession of the Equipment or the Owner delivers the Equipment in accordance with the Customer’s instructions. The hire period ends when the Equipment is back in the Owner’s possession in an undamaged condition or the Hire Agreement is terminated for any other reason by the Owner.
3.3 The Customer is to be charged from the time the Equipment is delivered to the Customer (or delivered in accordance with Customer’s instructions) until the hire period ends. The period includes weekends and public holidays and is payable whether or not the Equipment is being used.
3.4 Should the hire period be reduced by the Customer, the Owner shall be entitled to increase the hire charge to reflect the reduced hire period.
4. Hire and Other Charges
4.1 Hire: The Customer will pay the Owner the hire charges set out in the Hire Agreement or quote.
4.2 Other Services: The Owner may, if requested by the Customer, but only if personnel are available, attend the site and instruct the Customer in the operation of the Equipment. The Customer shall in addition to the hire charges pay the Owner for such services at rates agreed by the Owner and the Customer.
4.3 Tax and Government Charges: The Customer shall be liable for stamp/hire duty, GST and all other applicable taxes, duties, levies, penalties and any other government charges imposed on the Hire Agreement or in respect of the hire period. Where the Customer claims exemption from duty or tax the Customer must furnish appropriate exemption certificates to the Owner.
4.4 Delivery: If the Customer requires the Owner to deliver, collect or install the Equipment, the Customer shall be liable for the cost of delivery, collection or installation at rates agreed by the Owner and the Customer.
4.5 Payment Due Date: The Customer is required to pay all fees, charges and costs that may become due and payable under the Hire Agreement within the agreed payment terms. If no terms are agreed, this payment shall be made before the end of the hire period. If not, the hire charge will continue to be payable until all amounts due are paid.
5. Customer’s Hire Obligations
5.1 Suitability: The Customer is deemed to be satisfied as to the suitability, condition and fitness for purpose of the Equipment. The Owner gives no warranty that the Equipment is suitable for the Customer’s purpose.
5.2 Operation of Equipment: The Customer warrants that at all times they will:
5.2.1 Operate the Equipment safely, strictly in accordance with
all applicable law, only for its intended use and in accordance with the manufacturer’s instructions.
5.2.2 Ensure persons operating or erecting the Equipment are suitably licensed, instructed/trained in its safe and proper use and where necessary hold a current Certi cate of Competency.
5.2.3 Return the Equipment to the Owner in the same good and clean condition it was in when the Customer receives it, ordinary fair wear and tear excluded.
5.2.4 Display, maintain all safety signs and instructions (as required by law) and ensure that all instructions and signs are observed by operators of the Equipment.
5.2.5 Ensure all persons operating the Equipment wear suitable clothing and protective equipment as required or recommended by the manufacturer or by the Owner.
5.2.6 Ensure that no persons operating the Equipment are under the influence of drugs or alcohol.
5.2.7 Conduct a job safety analysis prior to using the Equipment at a site. 5.2.8 Accept responsibility for the safe-keeping of and ensuring the Equipment during the hire period.
5.2.9 Ensure that no persons carry illegal, prohibited or dangerous substances in or on the Equipment.
5.2.11 The Customer indemnifies and agrees to keep the Owner indemnified against any loss, cost, damage or expense incurred or which may be incurred by the Owner arising from the use of the Equipment under this Hire Agreement.
5.3 Operator: If the Owner supplies an operator to operate the Equipment (“Operator”), the Operator shall be under the sole direction and control of the Customer and shall during the hire period be deemed to be the employee of the Customer and the Customer shall not allow any other person to operate the Equipment without the Owner’s prior written consent. The Customer indemnifies and agrees to keep the Owner indemnify ed against any claims brought against the Owner arising out of the supply of an Operator by the Owner.
5.4 Maintenance and Service:
The Customer must:
5.4.2 Not in any way alter, modify, tamper with, damage or repair the Equipment without the Owner’s written consent
5.5 Safekeeping: The Customer must ensure that during the hire period the Equipment is stored safely and securely and is protected from theft, seizure or damage.
5.6 Notices, Information and Identifying Marks: The Customer must
not alter, deface, remove or erase any notices, safety information, identifying mark, TLU or Identifying number on the Equipment.
5.7 Inspections: The Customer consents to the Owner inspecting the Equipment from time to time during the hire period. In addition, the Customer may arrange a joint inspection with the Owner at the end of the hire period.
5.8 Safe Loading and Transport: The Customer will ensure the safe loading, securing and transporting of all Equipment in accordance with all laws and manufacturers’ guidelines. The Customer and any transporting contractor shall observe any safety directions given by the Owner and/or manufacturer of the Equipment for its loading and safe handling.
6. Equipment Breakdown
6.1 Obligations of Customer:
If the Equipment breaks down, or becomes unsafe to use during the hire period the Customer:
6.1.1 Shall immediately stop using the Equipment and notify the Owner. 6.1.2 Shall take all steps necessary to prevent injury occurring to persons or property as a result of the condition of the Equipment.
6.1.3 Shall take all steps necessary to prevent any further damage to the Equipment.
6.1.4 May only repair or attempt to repair the Equipment with the Owner’s written consent.
6.1.5 Shall be liable, subject to clause 6.2 for any costs incurred by the Customer or Owner in repairing or the new replacement costs of the Equipment.
6.2 Obligations of the Owner:
The Owner will, if the Equipment breaks down or becomes unsafe to use through no fault, negligence, recklessness or misuse by the Customer (unless the Equipment breaks down, becomes unsafe, is damaged or is lost due to an Environmental Event in which case clause 7 applies):
6.2.1 Take all steps necessary to notify the owner within 72 hours of the incident to arrange a site inspection, replacement equipment or collection.
6.2.2 Not impose a hire charge for that portion of the hire period for which the Equipment was broken down or unsafe, nor the costs associated with any repair or replacement of the Equipment.
7. Lost, Stolen or Damaged Equipment
If the Equipment is lost, stolen or damaged during the hire period, the Customer shall be liable for all of the following:
7.1 Any costs incurred by the Owner in repairing or the new replacement cost of the Equipment.
7.2 Any other costs whatsoever incurred by the Owner as a result of the loss, theft or damage to the Equipment, including the continuation of hire charges when the damage was caused by the negligence or omission of the Customer.
8.1 The Owner may terminate the Hire Agreement at any point throughout the rental period by notice to the Customer, if any one or more of the following apply:
8.1.1 The Customer breaches any term of the Hire Agreement; or 8.1.2 The Customer becomes bankrupt or insolvent, executes a personal insolvency agreement,
8.1.3 The Customer enters into liquidation, administration, receivership or ceases to carry on business.
8.2 The Owner may terminate the Hire Agreement for any other reason by 24 hours notice. The right of termination is in addition to any other rights under the Hire Agreement and does not exclude any right or remedy under law or equity or the survival of other terms under the Hire Agreement.
9. Recovery of Equipment
If the Customer is in breach of the Hire Agreement or if the Owner has terminated the Hire Agreement with the Customer pursuant to clause, the Owner may take all steps necessary (including legal action) to recover the Equipment, including entering the Customer’s premises to do so without liability for trespass.
10.1 Severability: If any part of this agreement becomes void or unenforceable for any reason then that part will be severed with the intent that all remaining parts will continue to be in full force and effect and be unaffected by the severance of any other parts.
10.2 Governing Law and Default Recovery: The Hire Agreement is governed by the laws and each party submits to the exclusive jurisdiction of the courts of the State of Victoria.
10.3 Entire Agreement: The Hire Agreement issued to the Customer, together with these Standard Conditions of Hire, comprises the entire agreement between the parties.
10.4 No Reliance: The Customer acknowledges that neither the Owner nor any person acting on the Owner’s behalf) has made any representation or another inducement to the Customer to enter into the Hire Agreement and that the only representations (including in relation to the use of the Equipment) made are those representations contained in the Hire Agreement.
10.5 Variation: The Owner may at any time vary the Hire Agreement by giving the Customer 30 day’s written notice of its intention to do so. Any other variation of these terms and conditions must be agreed in writing by the Owner and the Customer.
10.6 Notice to Customer: Any document which by the Hire Agreement may or must be given by the Owner may be served or given by leaving it at or posting it to the address of the Customer as stated in the Hire Agreement (or last notified by the Customer in writing to the Owner) and shall be deemed to have been served or given at the time of leaving or, if posted, on the business day following the day of postage and any notice may be signed by an officer, manager or solicitor of the Owner on behalf of the Owner.
10.7 No Waiver: No delay or failure to exercise any right, power or remedy accruing to the Owner upon any continuing breach or default under the Hire Agreement shall impair any such right, power or remedy, nor shall it constitute a waiver of any right of the Owner to take action or make a claim in respect of, or to have agreed to, a continuing breach or default.
10.8 Withdrawal of Credit: Any credit granted by the Owner to the Customer may be reviewed by the Owner at any time without notice. Credit may be withdrawn for Customers failing to make payments or use the Equipment in accordance with these Standard Conditions of Hire and a statement may be issued at that time requiring payment within 7 days of any amount due and owing.
10.9 Authority of Customer: The person signing the Hire Agreement for and on behalf of the Customer hereby warrants to the Owner that
he or she has the authority of the Customer to make the Agreement
on the Customer’s behalf and to bind the Customer to the Agreement and hereby indemnifies the Owner against all losses, costs and claims incurred by the Owner arising out of the person so signing the Agreement not in fact having such power and/or authority.
10.10 Previous Editions: This edition of the Standard Conditions of Hire replaces and supersedes all previously issued Conditions of Hire by the Owner.
11. Guarantee and Indemnity
11.1 In consideration of the Owner entering into the Hire Agreement at the request of the Guarantor, the Guarantor:
11.1.1 Guarantees to the Owner the performance by the Customer of its obligations under the Hire Agreement;
11.1.2 Must ensure that the Customer complies with the Hire Agreement;
11.1.3 Indemnifies the Owner with respect to all loss and damage of every kind arising out of a breach by the Customer of the Hire Agreement; and must not, at any time, do anything which, if done at that time by the Customer, would be a breach by the Customer of the Hire Agreement.
11.2 The guarantee in Clause (11.1.1) will remain effective notwithstanding any fact, circumstance or thing which would otherwise render it void or unenforceable.
11.3 The Guarantor must not do anything, in relation to any debt owed by the Customer to the Guarantor, which would have the direct or indirect effect of reducing the amount the Owner is able to recover from the Customer.
11.4 The Guarantor now charges his/her/its interest in any real property registered in the Guarantor’s favour in favour of the Owner to secure this guarantee and indemnity and authorise the lodgement of a caveat to support this charge
13. Lawful Use
13.1 The Service may only be used for lawful purposes. The Customer must not allow the collection, posting, transmission,
or storage of data and content which, in the Owner’s sole determination, constitutes a violation of any relevant law, regulation or court order. The Customer is responsible for determining what laws or regulations are applicable to their use of the Service.
13.2 The Customer must not, in whole or in part, copy, photocopy, reproduce, translate, reverse engineer, derive source code from, modify, disassemble, decompile or create derivative works based on the Service
14. Intellectual Property
14.1 The Customer acknowledges and agrees that the Service and any necessary software used in connection with the Service contain Con dential Information that is protected by applicable intellectual property and other laws. The Customer further acknowledges and agrees that the content or information presented to the Customer through the service or by advertisers may be protected by copyrights, trademarks, service marks, patents or other proprietary rights and laws.
14.2 Each party retains all right, title and interest in its data, information and intellectual property rights, and nothing in this Agreement are intended to transfer or diminish such rights. The parties further acknowledge and agree that as between the parties, Blackbox Unit Trust owns all right, title and interest in the Service and any proprietary and intellectual property rights contained therein.
15.1 Except as expressly and unambiguously permitted,
each party must hold in confidence and not use or disclose any materials or information disclosed by the other party that are marked as con dential or proprietary, or if disclosed verbally, reduced to writing and marked confidential within thirty (30)
days after the date of disclosure (Confidential Information”). Confidential Information will also include any applications, software including but not limited to source codes and any other ancillary documentation developed by the Owner.
15.2 Each party must treat the other party’s Confidential Information with at least the same degree of care it uses to prevent unauthorized disclosure or use of its own Confidential Information, but in no event less than reasonable care.
15.3 Confidential information will not include any materials or information that:
15.3.1 The recipient can prove is now, or later becomes, through no act or failure to act on the party of the receiving party, generally known or available to the public.
15.3.2 Is known by the receiving party at the time of disclosure as evidenced by its records.
15.3.3 Is furnished to the receiving party by a third party, as a matter of right and without restriction on disclosure.
15.3.4 Is disclosed in response to a valid order of a court
or other governmental body or any political subdivision in the jurisdiction in which the con dential information is required to be disclosed, provided, however, that the receiving party must rst have given notice to the disclosing party and must have made
reasonable effort to obtain a protective order requiring that the Con dential Information so disclosed be used on for which the order was issued; or a reasonable effort to obtain a protective order requiring that the Confidential Information so disclosed be used only for which the order was issued.
15.3.5 Is otherwise necessary to establish rights or enforce obligations under this Agreement but only to the extent that such disclosure is necessary.
15.4 Access to the Confidential Information is limited to employees and agents of the receiving party who have a legitimate “need to know” the information for their performance of this Agreement, who have been advised of the confidential nature
and who have agreed in writing, as a condition of employment or engagement or otherwise to protect the Confidential Information with terms no less than are imposed by this Agreement.
15.5 Notwithstanding the above, the Owner may use aggregate information to measure general Service usage patterns and characteristics of its user base and may include such aggregate information about its audience in promotional materials or reports to third parties. This aggregate information will not reference names, phone numbers, email addresses, or other personally identifiable information and it is not traceable to a specific recipient or user email address. The Owner may assign its rights in this agreement to any third party as it determines in its absolute discretion.
16 System and Network Security
16.1 Violations of system or network security are prohibited, and may result in criminal and civil liabilities.
16.2 Examples of system or network security violations include, without limitation, the following:
16.2.1 Introduction of malicious programs into the network or server (example: viruses, worms, Trojan Horses, key loggers, and other executables intended to inflict harm).
16.2.2 Effecting security breaches or disruptions of Internet communication and/or connectivity.
16.2.3 Executing any form of network activity that will intercept data not intended for the Customer’s server or account that the Customer is not expressly authorized to access. For purpose of this section, ”disruption” includes but is not limited to port scans, pings, email-bombing, packed spoofing, IP spoofing and forged routing information.
16.2.4 Circumventing user authentication or security of any host, network or accounting, including “cracking”.
16.2.5 Interfering with or denying service to any user, host or network other than the Customer’s host (example: denial of service attack or distributed denial of service attack).
16.2.6 Conduct designed to avoid restriction or access limits to speci c services, hosts or networking including but limited to the forging of packed headers (“spoo ng”) or other identi cation information.
16.2.7 Using any program script/command or sending message of any kind, designed to interfere with or to disable, a user’s terminal session, via any means, locally or via the Internet.
16.2.8 Running an openly accessible proxy of any kind.
16.2.9 Violators of the service are responsible, without limitations, for the cost of labour to correct all damage done to the operation of the network and business operations supported by the network. Network interference by any Customers that may cause or is currently causing network interference with another Customer will be disconnected immediately. No service credits will be issue to Customers’ disconnected for network violations.
16.3 The Owner employs security measures designed for the protection of information and data. However, Customer agrees that The Owner is not responsible for any electronic communications and/or Customer data which are lost, altered, intercepted or stored without authorisation during the transmission of any data whatsoever across networks not owned or operated by the Owner.
17. Suspension and Cancellation
17.1 The Owner reserves the right to suspend service to any Customer for violation of this Agreement. The Owner will use reasonable care in notifying the Customer and in resolving the problem in a method resulting in the least amount of service interference as reasonably possible.
17.2 All payments due for the Service must be paid as required and stated in the Purchase Order applying to the Service. The Owner reserves the right to suspend or terminate the Customer’s access to the Service if payment due for the Services is not paid as and when required.
18. Representation and Warranties
Each party represents and warrants that it has the legal power and authority to enter into this Agreement. The Owner represents and warrants that it will use commercially responsible efforts to provide the Service in a manner consistent with general industry standards reasonably applicable to the provision of the Service. The Customer represents and warrants that the Customer has not provided any false information to gain access to the Service..
19. Force Majeure
The Owner shall be released from its obligations in the event of national emergency, war, prohibitive governmental regulation or if any other cause beyond the control of the parties renders provision of the Goods impossible, where all money due to The Owner must be paid immediately and, unless prohibited by law, The Owner may elect to terminate the Agreement.
20. Failure to Act
The Owner’s failure to enforce or insist upon the timely performance of any term, condition, covenant or provision in this Agreement, or The Owner’s failure to exercise any right or remedy available under this Agreement or at law, or The Owner’s failure to insist upon timely payment of monies when due or to demand payment of any charges or fees which accrue or any extension of creditor forbearance under this Agreement shall not constitute a waiver of any subsequent default or a waiver of The Owner’s right to demand timely payment of future obligations or strict compliance with the Agreement.
21. Legal Construction
21.1 This Agreement shall be governed by and interpreted according to the laws of Victoria and The Owner and the Customer consent and submit to the jurisdiction of the Courts of Victoria.
21.2 Notwithstanding that any provision of the Agreement may prove to be illegal or unenforceable pursuant to any statute or rule of law or for any other reason that provision is deemed omitted without affecting the legality of the remaining provisions and the remaining provisions of the Agreement shall continue in full force and effect.
22. Disclaimer of Warranties
The Owner makes no representation, warrantyor guarantee as to the reliability, timeliness, quality, suitability, truth, availability, accuracy or completeness of the service or any content existing or generated through the service. The Owner does not represent or warrant that (a) the use of the service will be secure, timely, uninterrupted or error-free or operate in combination with any other hardware, software, system or data (b) the services will meet the customer’s requirements or expectations, (c) any stored data will be accurate or reliable, (d) errors or defects will be corrected, or (f) the service or the server(s) that make the service available are free of viruses or other harmful components except for the express warranties in 7. the service and all content is provided to the customer strictly on an ‘as is’ basis; all other conditions, representations and warranties, whether express, implied, statutory or otherwise, including without limitation, any implied warranty of merchantability fitness, for a particular purpose, or non-infringement of third party rights are disclaimed by The Owner to the maximum extent permitted by applicable law.
23. limitation of liability
In no event will The Owner aggregate liability under any claims arising out of this agreement exceed the fees paid by the customer toThe Owner during the twelve month (12) period preceding initial event resulting in such claims. The Owner will not be liable for lost profits or for special, indirect, incidental or consequential damages, regardless of the form of action, even ifThe Owner is advised of the possibility of such damages. these limitations are cumulative for all claims howsoever arising under all agreement, and shall apply to the maximum extent permitted by applicable law, even if the remedies provided in this agreement shall fail of their essential purpose.