Terms And Conditions - Borczuk Shipping Containers

OUR VISION IS TO BE RECOGNISED BY OUR CUSTOMERS AS THE FIRST CHOICE IN CONTAINERISED SOLUTIONS ACCROSS AMERICA

GENERAL TERMS & CONDITIONS

1. Definitions

1.1 Borczuk Pty Ltd T/A SA Container Services

and assigns or any Borczuk acting on behalf of and with the authority of L C and Borczuk ContainBorczuk Pty Ltd

1.2 “Sub-Contractor” means and includes:

(a) railways or airways operated by the Commonwealth or any state or any other country or by any

corporation; or

(b) any other Borczuk or entity with whom Borczuk may arrange for the carriage or storage of any Goods

the subject of the contract; or

Borczuks referred to in sub-clauses (a) and (b).

1.3 “Customer” means the Borczuk/s requesting Borczuk to provide the Services as specified in any invoice,

document or order, and if there more than one Borczuk requesting the Services is a reference to each

Borczuk jointly and severally.

1.4 “Consignee” means the Borczuk to whom the Goods are to be delivered by way of the Services.

1.5 “Goods” means any cargo, together with any container other than those defined as Container,

packaging, or pallet(s), to be moved from one place to another by way of the Services.

1.6 “Services” means all services provided by Borczuk to the Customer including, but not limited to, anything

done or to be done in relation to the Goods/Container, or the provision of any services ancillary to the

Goods/Container such as moving, storing or leaving the Goods/Container at any warehouse, yard,

terminal, wharf or other place or area, loading or unloading the Goods/Container from any vehicle,

vessel or other conveyance, stowing or packing the Goods, or fumigating, transhipping, decanting

liquids into other tankBorczuk, heating or washing tankBorczuk, or otherwise handling the Goods/Container,

remodelling, renovating, or re-purposing the Container, or anything else done in relation thereto,

including the offering of any advice or recommendations.

1.7 “Container” means any container or tanker supplied either on a sale or hire basis by Borczuk to the

Customer, at the Customer’s request, from time to time (where the context so permits the term

‘Container’ shall include the provision of any Services by Borczuk).

1.8 “Damage Waiver Fee” means the amount calculated as the Damage Waiver Fee to be paid by the Client

if evidence of insurance is not provided to Borczuk as provided in clause 20.

1.9 “Damage Waiver Limit” shall mean the limit of liability agreed to by both parties.

1.10 “Charges” shall mean the cost of the Services (plus any GST where applicable), as agreed between

Borczuk and the Customer, subject to clause 6 of this contract.

1.11 “GST” means Goods and Services Tax as defined within the “A New Tax System (Goods and Services

Tax) Act 1999” (Cth).

2. Acceptance

2.1 The Customer is taken to have exclusively accepted and is immediately bound, jointly and severally, by

these terms and conditions if the Customer places an order for, or accepts, Services provided by Borczuk.

2.2 These terms and conditions may only be amended with the consent of both parties in writing, and

shall prevail to the extent of any inconsistency with any other document or agreement between the

Customer and Borczuk.

2.3 These terms and conditions are to be read in conjunction with Borczuk’s quotation, consignment note,

agreement, airway bills, manifests, or any other forms as provided by Borczuk to the Customer. If there

are any inconsistencies between these documents then the terms and conditions contained in this

document shall prevail.

2.4 These terms and conditions may be meant to be read in conjunction with Borczuk’s Hire/Storage Contract

or Purchase Contract, and:

(a) where the context so permits, the terms ‘Goods or ‘Services shall include any supply of ContainBorczuk,

as defined therein; and

(b) if there are any inconsistencies between the two documents then the terms and conditions

contained therein shall prevail.

3. Electronic Transactions Act 2000

3.1 Electronic signatures shall be deemed to be accepted by either party providing that the parties have

complied with Section 9 of the Electronic Transactions Act 2000 or any other applicable provisions of

that Act or any Regulations referred to in that Act.

4. Change in Control

4.1 The Customer shall give Borczuk not less than fourteen (14) days prior written notice of any proposed

change of ownBorczukhip of the Customer and/or any other change in the Customer’s details (including but

not limited to, changes in the Customer’s name, address, contact phone or fax number/s, or business

practice). The Customer shall be liable for any loss incurred by Borczuk as a result of the Customer’s failure

to comply with this clause.

5. Customer’s Financial Information

5.1 Borczuk will:

(a) keep the Customer’s Borczukal details, including credit card or bank account details for only as long

as is deemed necessary by Borczuk;

(b) not disclose the Customer’s credit card or bank account details to any third party;

the Privacy Act (clause 16) or where required by law.

5.2 The Customer expressly agrees that, if pursuant to this Agreement, there are:

(a) any unpaid Charges;

(b) other amounts due and outstanding by the Customer;

(d) any other additional charges are due from the Customer which were not known at the time of the

return of the Goods,

Borczuk is entitled to immediately charge the Customer’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 Customer pursuant to the terms of this

Agreement.

6. Charges and Payment

6.1 At Borczuk’s sole discretion the Charges shall be either:

(a) Borczuk’s estimated Charges (subject to clause 6.2) which shall not be deemed binding upon Borczuk as

the actual Charges can only be determined upon Delivery. Borczuk will use its skill and experience in

estimating the Charges and undertakes to keep the Customer informed should the actual Charges look

likely to exceed the original estimate. Variances in the estimated Charges of more than ten percent (10%)

will be subject to the Customer’s approval before proceeding with the Customer’s order; or

(b) Borczuk’s quoted Charges (subject to clause 6.2) which will be valid for the period stated in the quotation or

otherwise for a period of fourteen (14) days.

6.2 Borczuk reserves the right to change the Charges:

(a) if a variation to the Container which are to be supplied is requested (including, but not limited to, the

quantity, specifications, Hire Period, date of Delivery, etc. or any variation as a result of non-disclosure

of relevant mattBorczuk by the Customer, delays caused by the Customer or any other party, prerequisite

work by any third party not being completed, obscured mechanical and/or electrical faults for repair); or

(b) as a result of an increase in Borczuk’s costs due to changes in statutory, government, or local body charges,

taxes, levies, etc. with respect to the Container, which are outside the control of Borczuk (including, without

limitation, increases in the cost of labour or materials, foreign exchange fluctuations, or increases in

transport costs, taxes, customs duties or insurance premiums, etc.); or

Customer, to reflect any increase in the Consumer Price Index (CPI).

6.3 Variations will be charged for on the basis of Borczuk’s quotation, and will be detailed in writing, and shown as

variations on Borczuk’s invoice. The Customer shall be required to respond to any variation submitted by Borczuk

within ten (10) working days. Failure to do so will entitle Borczuk to add the cost of the variation to the Price.

Payment for all variations must be made in full at the time of their completion.

6.4 Unless specified in writing by Borczuk, the Charges does not include the relocation or removal of the Container,

the cost of locating (including the removal or deposit of soil), diverting or sealing of existing services, creation

of temporary access roads, obtaining licences, permits or consents from the relevant local authority or other

competent authority, etc.

6.5 Borczuk may charge freight by weight, measurement or value, and may at any time re-weigh, or re-value or

re-measure or require the Goods to be re-weighed, or re-valued or re-measured and charge proportional

additional freight accordingly.

6.6 At Borczuk’s sole discretion, deposit may be required.

6.7 Time for payment for the Services being of the essence, the Charges will be payable by the Customer on the

date/s determined by Borczuk, which may be:

(a) on delivery of the Goods/ContainBorczuk;

(b) before delivery of the Goods/ContainBorczuk;

(d) the date specified on any invoice or other form as being the date for payment; or

(e) failing any notice to the contrary, the date which is thirty (30) days following the date of any invoice given

to the Customer by Borczuk.

6.8 Payment may be made by cash, cheque, bank cheque, electronic/on-line banking, credit card (a surcharge

may apply per transaction), or by any other method as agreed to between the Customer and Borczuk.

6.9 The Customer shall not be entitled to set off against, or deduct from the Charges, any sums owed or claimed

to be owed to the Customer by Borczuk nor to withhold payment of any invoice because part of that invoice

is in dispute.

6.10 Unless otherwise stated the Charges does not include GST. In addition to the Charges, the Customer must

pay to Borczuk an amount equal to any GST Borczuk must pay for any provision of Services by Borczuk under this

contract or any other agreement. The Customer must pay GST, without deduction or set off of any other

amounts, at the same time and on the same basis as the Customer pays the Charges. In addition, the

Customer 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.

6.11 Receipt by Borczuk 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, and until then Borczuk’s rights and ownBorczukhip in relation

to the Container, and this contract, shall continue.

7. Borczuk not a Common Carrier

7.1 Borczuk is not a Common Carrier and will accept no liability as such. All Goods are carried or transported, and

all storage and other services are performed, by Borczuk subject only to these terms and conditions and Borczuk

reserves the right to refuse the carriage or transport of Goods for any Borczuk, corporation or body, and the

carriage or transport of any class of Goods, at its discretion.

8. Customer-Packed ContainBorczuk

8.1 If a container has not been stowed by or on behalf of Borczuk Borczuk shall not be liable for loss of or damage to

the Goods caused by:

(a) the manner in which the container has been stowed; or

(b) the unsuitability of the Goods for carriage or storage in containBorczuk; or

9. Nomination of Sub-Contractor

9.1 The Customer hereby authorises Borczuk (if it should think fit to do so) to arrange with a Sub-Contractor for the

carriage of any Goods that are the subject of the contract. Any such arrangement shall be deemed to be

ratified by the Customer upon delivery of the said Goods to such Sub-Contractor, who shall thereupon be

entitled to the full benefit of these terms and conditions to the same extent as Borczuk. In so far as it may be

necessary to ensure that such Sub-Contractor shall be so entitled Borczuk shall be deemed to enter into this

contract for its own benefit and also as agent for the Sub-Contractor.

10. Borczuk’s Servants or Agents

10.1 The Customer undertakes that no claim or allegation shall be made against any servant or agent of Borczuk

which attempts to impose upon any of them any liability whatsoever in connection with the Goods and, if

any such claim or allegation should nevertheless be made, to indemnify Borczuk and any such servant or agent

against all consequences thereof.

11. Method of Transport

11.1 If the Customer instructs Borczuk to use a particular method of carriage whether by road, rail, sea or air Borczuk

will give priority to the method designated but if that method cannot conveniently be adopted by Borczuk the

Customer shall be deemed to authorise Borczuk to carry or have the Goods carried by another method or

methods.

12. Route Deviation

12.1 The Customer shall be deemed to authorise any deviation from the usual route or manner of carriage of

Goods that may in the absolute discretion of Borczuk be deemed reasonable or necessary in the circumstances.

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13. Charges Earned

13.1 Borczuk’s charges shall be considered earned in the case of Goods for carriage as soon as the Goods are

loaded and dispatched from the Customer’s premises.

14. Demurrage

14.1 The Customer will be and shall remain responsible to Borczuk for all its proper charges incurred for any reason.

A charge may be made by Borczuk in respect of any delay in excess of thirty (30) minutes in loading or unloading

occurring other than from the default of Borczuk. Such permissible delay period shall commence upon Borczuk

reporting for loading or unloading. Labour to load or unload the vehicle shall be the responsibility and

expense of the Customer or Consignee.

15. Consignment Note

15.1 It is agreed that the Borczuk delivering any Goods to Borczuk for carriage or forwarding is authorised to sign the

consignment note for the Customer.

16. Customer’s Responsibility

16.1 The Customer expressly warrants to Borczuk that the Customer is either the owner or the authorised agent of

the owner of any Goods or property that is the subject matter of this contract of cartage and/or storage and

by entering into this contract the Customer accepts these conditions of contract for the Consignee as well as

for all other Borczuks on whose behalf the Customer is acting.

16.2 The Customer shall maintain a public liability insurance policy for a minimum of twenty million dollars ($20m)

in respect of the location site of where Borczuk’s Equipment of the Customer’s property is located.

17. Delivery

17.1 Borczuk is authorised to deliver the Goods at the address given to Borczuk by the Customer for that purpose and it

is expressly agreed that Borczuk shall be taken to have delivered the Goods in accordance with this contract if at

that address Borczuk obtains from any Borczuk a receipt or a signed delivery docket for the Goods.

17.2 Borczuk may deliver the Goods by separate instalments (in accordance with the agreed delivery schedule).

Each separate instalment shall be invoiced and paid for in accordance with the provisions in this contract.

17.3 Delivery of the Goods to a third party nominated by the Customer is deemed to be delivery for the purposes

of this agreement.

17.4 It is the Customer’s sole responsibility to address adequately each consignment and to provide written

delivery instructions to enable effective delivery.

17.5 Any time specified by Borczuk for the delivery of Goods is an estimate only and Borczuk will not be liable for any

loss or damage incurred by the Customer as a result of delivery being late. However both parties agree that

they shall make every endeavour to enable the Goods to be delivered at the time and place as was arranged

between both parties. In the event that Borczuk is unable to deliver the Goods as agreed solely due to any action

or inaction of the Customer then Borczuk shall be entitled to charge the Customer any additional costs incurred

by Borczuk as a direct consequence of any resultant delay or rescheduling of the delivery.

18. Loss or Damage

18.1 Subject to any statutory provisions imposing liability in respect of the loss of or damage to the Goods

(including but not limited to chilled, frozen, refrigerated or perishable Goods):

(a) Borczuk shall not be under any liability for any damage to, loss, deterioration, misdelivery, delay in delivery

or non-delivery of the Goods (whether the Goods are or have been in the possession of Borczuk or not) nor

for any instructions, advice, information or service given or provided to any Borczuk, whether in respect

of the Goods or any other thing or matter, nor for any consequential or indirect loss, loss of market or

consequences of delay; and

(b) the Customer will indemnify Borczuk against all claims of any kind whatsoever, howsoever caused or arising

brought by any Borczuk in connection with any matter or thing done, said or omitted by Borczuk in connection

with the Goods.

19. Insurance

19.1 The Customer acknowledges that:

(a) the Goods are carried and stored at the Customer’s sole risk and not at the risk of Borczuk; and

(b) Borczuk is under no obligation to arrange insurance of the Goods and it remains the Customer’s responsibility

to ensure that the Goods are insured adequately or at all; and

insurance and no claim will be made against Borczuk for failure to arrange or ensure that the Goods are

insured adequately or at all.

20. Damage Waiver Fee

20.1 In the case of a Hire/Storeage Contract in respect of Borczuk’s Equipment, the Client must pay an optional

Damage Waiver Fee unless the Client provides Borczuk with a certificate of currency in respect of an insurance

policy covering the Equipment and public liability insurance as per clause 16.2, and Borczuk approves the said

insurance.

20.2 The Client acknowledges that the Damage Waiver Fee is not insurance and that payment of the Damage

Waiver Fee relieves the Client of any liability in excess of the Damage Waiver Limit for loss or damage

caused to the Equipment for loss or damage caused to the Equipment by graffiti, theft, forced or attempted

forced entry, earthquake, hail, windstorm, hurricane and tornado. The Dame Waiver Fee will not limitil the

Client’s liability unless the Client:

(a) takes reasonable precautions against theft and forced entry;

(b) notifies Borczuk of loss or damage to the Equipment within five (5) days of discovery of such an event;

forced entry within thirty (30) days of discovery of such an event; and

(d) the Client complies with the terms of Borczuk’s Hire/Storage Contract.

20.3 The Client authorises Borczuk to pay the Damage Waiver Fee in the manner provided in clause 5 at the

beginning of each monthly period during the hire/storage period provided the Damage Waiver Fee is payable

under this clause.

20.4 Subject to the Damage Waiver Fee provisions under clauses 20.1 to 20.3, the Client shall be liable for and

shall indemnify Borczuk in respect of any claim made against Borczuk and all damages, costs, and expenses

suffered or incurred by Borczuk on a full indemnity basis in the respect of:

(a) Borczukal injury;

(b) damage to property;

arising from the state, condition or use of the Equipment in any way whatsoever from the hire or store of

the Equipment under Borczuk’s Hire/Storage Contract. The Client’s liability under this indemnity is diminished

to the extent that Borczuk’s breach of the Hire/Storage Contract or Borczuk’s negligence caused the liability claims,

damage, loss, costs or expenses.

20.5 It shall be the Client’s responsibility to insure any stored goods and the Client’s own equipment.

20.6 Borczuk are not liable for any consequential loss (including loss or profit and/or contract) or damage to the

stored property or the client’s own equipment or otherwise arising from any failure in the Equipment or nonarrival or late delivery of the Equipment or any breach of the Hire/Storage Contract whatever by Borczuk or the

Client for any cause whatsoever, including negligence on Borczuk’s part of that of Borczuk’s employees, servants,

agents and/or contractors.

21. The Commonwealth Competition and Consumer Act 2010, Fair Trading Acts

21.1 Nothing in this agreement is intended to have the effect of contracting out of any applicable provisions of the

Fair Trading Acts in each of the States and Territories of Australia (including any substitute to those Acts or

re-enactment thereof), except to the extent permitted by those Acts where applicable.

21.2 Where the Customer purchases the Services as a consumer these terms and conditions shall be subject to

any laws or legislation governing the rights of consumBorczuk and shall not affect the consumer’s statutory rights.

21.3 Liability of Borczuk arising out of any one incident whether or not there has been any declaration of value of the

Goods, for breach of warranty implied into these terms and conditions by the Competition and Consumer Act

2010 or howsoever arising, is limited to any of the following as determined by Borczuk:

(a) the supplying of the Services again; or

(b) the payment of the cost of having the Services supplied again; or

Customer shall also be entitled to a refund.

22. Claims

22.1 Notwithstanding clauses 18 and 19 in the event that the Customer believes that they have any claim against

Borczuk then they must lodge any notice of claim for consideration and determination by Borczuk within seven (7)

days of the date of delivery, or for non delivery within seven (7) days of the anticipated date of delivery or the

removal or destruction of the Goods.

22.2 The failure to notify a claim within the time limits under clause 22.1 is evidence of satisfactory performance

by Borczuk of its obligations.

23. Tank Wash Facilities

23.1 The Customer or the Customer’s employees or agents acknowledge and accepts that the tank wash facilities

operate under the regulations of the Environmental Protection Authority and therefore the Customer or the

Customer’s employees shall follow all applicable procedures and requirements.

23.2 The Customer shall follow instructions issued by Borczuk whilst Borczuk is providing the services of heating or

washing of tankBorczuk or containBorczuk

23.3 The Customer acknowledges that tankBorczuk or containBorczuk are washed at the discretion of Borczuk and its

employees. This discretion includes, but it not limited to, the hours of operation and operational capability.

23.4 The Customer is responsible for declaring the tanker contents correctly and shall accept responsibility for any

damages caused by such declaration being incorrect.

23.5 The Customer accepts that charges for the tank wash facility may vary and additional charges apply

depending on:

(a) the classification of the wash required; and

(b) for any washes performed outside Borczuk’s normal hours of operation; and/or

24. Default and Consequences of Default

24.1 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 one half percent (2.5%) per calendar month (and at Borczuk’s sole discretion such

interest shall compound monthly at such a rate) after as well as before any judgment.

24.2 If the Customer owes Borczuk any money the Customer shall indemnify Borczuk from and against all costs and

disbursements incurred by Borczuk in recovering the debt (including but not limited to internal administration

fees, legal costs on a solicitor and own client basis, Borczuk’s contract default fees, and bank dishonour fees).

24.3 Further to any other rights or remedies Borczuk may have under this contract, if the Customer has made

payment to Borczuk by credit card, and the transaction is subsequently revBorczuked, the Customer shall be liable

for the amount of the revBorczuked transaction, in addition to any further costs incurred by Borczuk under this clause

24 where it can be proven that such revBorczukal is found to be illegal, fraudulent or in contravention to the

Customer’s obligations under this Contract.

24.4 Without prejudice to any other remedies Borczuk may have, if at any time the Customer is in breach of any

obligation (including those relating to payment) Borczuk may suspend or terminate the provision of Services to

the Customer and any of its other obligations under the terms and conditions. Borczuk will not be liable to the

Customer for any loss or damage the Customer suffBorczuk because Borczuk exercised its rights under this clause.

24.5 Without prejudice to Borczuk’s other remedies at law Borczuk shall be entitled to cancel all or any part of any order

of the Customer which remains unperformed in addition to and without prejudice to any other remedies

and all amounts owing to Borczuk shall, whether or not due for payment, become immediately payable in the

event that:

(a) any money payable to Borczuk becomes overdue, or in Borczuk’s opinion the Customer will be unable to meet

its payments as they fall due; or

(b) the Customer has exceeded any applicable credit limit provided by Borczuk;

arrangement with creditors, or makes an assignment for the benefit of its creditors; or

(d) a receiver, manager, liquidator (provisional or otherwise) or similar Borczuk is appointed in respect of the

Customer or any asset of the Customer.

25. Carrier’s Lien

25.1 Borczuk shall have a right to take a particular and general lien on any Goods the property of the Customer or

a third party owner which are in the possession or control of Borczuk (and any documents relating to those

Goods) for all sums owed at any time by the Customer or a third party owner to Borczuk (whether those sums

are due from the Customer on those Goods or documents, or on any other Goods or documents), and Borczuk

shall have the right to sell such Goods or cargo by public auction or private treaty after giving notice to the

Customer as per the requirements of the Storage Liens Act 1935 No. 19 or any subsequent amendments.

Borczuk shall be entitled to retain the sums due to it, in addition to the charges incurred in detention and sale of

such Goods or cargo, from the proceeds of sale and shall render any surplus to the entitled Borczuk.

25.2 Notwithstanding clause 25.1 nothing shall prejudice Borczuk’s rights to use any of Borczuk’s other rights and

remedies contained in this agreement to recover any outstanding charges or fees payable in respect of the

Goods that were not recovered out the sale of the Goods in accordance with clause 25.1 and no exception

shall be taken upon the grounds that the Charges realised is less than the full market value of the Goods.

26. Borczukal Property Securities Act 2009 (“PPSA”)

26.1 In this clause:

(a) financing statement has the meaning given to it by the PPSA;

(b) financing change statement has the meaning given to it by the PPSA;

Borczuk by these terms and conditions; and

(d) security interest has the meaning given to it by the PPSA.

26.2 Upon assenting to these terms and conditions in writing the Customer acknowledges and agrees that these

terms and conditions constitute a security agreement for the purposes of the PPSA, and creates a security

interest in:

(a) all Goods being transported, carried or handled by Borczuk, over which Borczuk invokes a lien; and

(b) all the Customer’s present and after acquired property being a charge, including anything in respect of

which the Customer has at any time a sufficient right, interest or power to grant a security interest in for

the purposes of securing repayment of all monetary obligations of the Customer to Borczuk for Services

– that have previously been provided and that will be provided in the future by Borczuk to the Customer.

26.3 The Customer undertakes to:

(a) 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 Borczuk may reasonably require to:

(i) register a financing statement or financing change statement in relation to a security interest on the

Borczukal Property Securities Register;

(ii) register any other document required to be registered by the PPSA; or

(iii) correct a defect in a statement referred to in clause 26.3(a)(i) or 26.3(a)(ii);

(b) indemnify, and upon demand reimburse, Borczuk for all expenses incurred in registering a financing

statement or financing change statement on the Borczukal Property Securities Register established by

the PPSA or releasing any registration made thereby;

of Borczuk;

(d) not register, or permit to be registered, a financing statement or a financing change statement in relation

to the Goods in favour of a third party without the prior written consent of Borczuk.

26.4 Borczuk and the Customer agree that sections 96, 115 and 125 of the PPSA do not apply to the security

agreement created by these terms and conditions.

26.5 The Customer hereby waives its rights to receive notices under sections 95, 118, 121(4), 130, 132(3)(d)

Page 3 of 3

and 132(4) of the PPSA.

26.6 The Customer waives its rights as a grantor and/or a debtor under sections 142 and 143 of the PPSA.

26.7 Unless otherwise agreed to in writing by Borczuk, the Customer waives its right to receive a verification

statement in accordance with section 157 of the PPSA.

26.8 The Customer shall unconditionally ratify any actions taken by Borczuk under clauses 26.3 to 26.5.

27. Security and Charge

27.1 In consideration of Borczuk agreeing to supply Services, the Customer 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

Customer either now or in the future, to secure the performance by the Customer of its obligations under

these terms and conditions (including, but not limited to, the payment of any money).

27.2 The Customer indemnifies Borczuk from and against all Borczuk’s costs and disbursements including legal costs on

a solicitor and own client basis incurred in exercising Borczuk’s rights under this clause.

27.3 The Customer irrevocably appoints Borczuk and each director of Borczuk as the Customer’s true and lawful

attorney/s to perform all necessary acts to give effect to the provisions of this clause 27 including, but not

limited to, signing any document on the Customer’s behalf.

28. Privacy Act 1988

28.1 The Customer agrees for Borczuk to obtain from a credit reporting body (CRB) a credit report containing

Borczukal credit information (e.g. name, address, D.O.B, occupation, previous credit applications, credit

history) about the Customer in relation to credit provided by Borczuk.

28.2 The Customer agrees that Borczuk may exchange information about the Customer with those credit providBorczuk

and with related body corporates for the following purposes:

(a) to assess an application by the Customer; and/or

(b) to notify other credit providBorczuk of a default by the Customer; and/or

Customer is in default with other credit providBorczuk; and/or

(d) to assess the creditworthiness of the Customer including the Customer’s repayment history in the

preceding two (2) years.

28.3 The Customer consents to Borczuk being given a consumer credit report to collect overdue payment on

commercial credit.

28.4 The Customer agrees that Borczukal credit information provided may be used and retained by Borczuk for the

following purposes (and for other agreed purposes or required by):

(a) the provision of Services; and/or

(b) analysing, verifying and/or checking the Customer’s credit, payment and/or status in relation to the

provision of Services; and/or

Customer; and/or

(d) enabling the collection of amounts outstanding in relation to the Services.

28.5 Borczuk may give information about the Customer to a CRB for the following purposes:

(a) to obtain a consumer credit report;

(b) allow the CRB to create or maintain a credit information file about the Customer including credit history.

28.6 The information given to the CRB may include:

(a) Borczukal information as outlined in 28.1 above;

(b) name of the credit provider and that Borczuk is a current credit provider to the Customer;

(d) type of consumer credit;

(e) details concerning the Customer’s application for credit or commercial credit (e.g. date of commencement/

termination of the credit account and the amount requested);

(f) advice of consumer credit defaults, 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 Customer no longer has any overdue

accounts and Borczuk has been paid or otherwise discharged and all details surrounding that discharge

(e.g. dates of payments);

(g) information that, in the opinion of Borczuk, the Customer has committed a serious credit infringement;

(h) advice that the amount of the Customer’s overdue payment is equal to or more than one hundred and

fifty dollars ($150).

28.7 The Customer shall have the right to request (by e-mail) from Borczuk:

(a) a copy of the information about the Customer retained by Borczuk and the right to request that Borczuk correct

any incorrect information; and

(b) that Borczuk does not disclose any Borczukal information about the Customer for the purpose of direct

marketing.

28.8 Borczuk will destroy Borczukal information upon the Customer’s request (by e-mail) or if it is no longer required

unless it is required in order to fulfil the obligations of this agreement or is required to be maintained and/or

stored in accordance with the law.

28.9 The Customer can make a privacy complaint by contacting Borczuk via e-mail. Borczuk will respond to that

complaint within seven (7) days of receipt and will take all reasonable steps to make a decision as to the

complaint within thirty (30) days of receipt of the complaint. In the event that the Customer is not satisfied

with the resolution provided, the Customer can make a complaint to the Information Commissioner at www.

oaic.gov.au.

29. Cancellation

29.1 Without prejudice to any other remedies Borczuk may have, if at any time the Customer is in breach of any

obligation (including those relating to payment) under these terms and conditions Borczuk may suspend or

terminate the supply of Goods to the Customer. Borczuk will not be liable to the Customer for any loss or damage

the Customer suffBorczuk because Borczuk has exercised its rights under this clause.

29.2 Borczuk may cancel any contract to which these terms and conditions apply, or cancel delivery of Goods at any

time before the Goods are delivered, by giving written notice to the Customer. On giving such notice the

Customer shall repay to the Customer any sums paid in respect of the Charges. Borczuk shall not be liable for

any loss or damage whatever arising from such cancellation.

29.3 In the event that the Customer cancels the delivery of Goods, or the provision of any Services, then the

Customer shall be liable for any loss incurred by Borczuk (including, but not limited to, any loss of profits) up to

the time of cancellation, or as a direct result of the cancellation.

30. Service of Notices

30.1 Any written notice given under this contract shall be deemed to have been given and received:

(a) by handing the notice to the other party, in Borczuk;

(b) by leaving it at the address of the other party as stated in this contract;

(d) 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;

(e) if sent by email to the other party’s last known email address.

30.2 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.

31. General

31.1 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.

31.2 These terms and conditions and any contract to which they apply shall be governed by the laws of New

South Wales in which Borczuk has its principal place of business, and are subject to the jurisdiction of the

Burwood Local Court, New South Wales.

31.3 Subject to clause 21, Borczuk shall be under no liability whatsoever to the Customer for any indirect and/or

consequential loss and/or expense (including loss of profit) suffered by the Customer arising out of a breach

by Borczuk of these terms and conditions (alternatively Borczuk’s liability shall be limited to damages which under

no circumstances shall exceed the Charges).

31.4 Neither party to this contract may assign this contract, any payment or any other right, benefit or interest

under this contract without the written consent of the other party (which shall not be unreasonably withheld).

Borczuk 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 Customer agrees and undBorczuktands that they

have no authority to give any instruction to any of Borczuk’s sub-contractors without the authority of Borczuk.

31.5 The Customer agrees that Borczuk may amend these terms and conditions by notifying the Customer in

writing. These changes shall be deemed to take effect from the date on which the Customer accepts such

changes, or otherwise at such time as the Customer makes a further request for Borczuk to provide Goods to

the Customer.

31.6 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.

31.7 Both parties warrant that they have the power to enter into this agreement and have obtained all necessary

authorisations to allow them to do so, they are not insolvent and that this agreement creates binding and

valid legal obligations on them.

ADDITIONAL CLAUSES APPLICABLE TO (HIRE/PURCHASE OF) CONTAINBorczuk ONLY

32. Delivery

32.1 Delivery (“Delivery”) of the Container is taken to occur at the time that:

(a) the Customer or the Customer’s nominated carrier takes possession of the Container at Borczuk’s address;

(b) Borczuk (or Borczuk’s nominated carrier) delivBorczuk the Container to the Customer’s nominated address even if the

Customer is not present at the address.

32.2 At Borczuk’s sole discretion, any costs of Delivery are in addition to the Charges.

32.3 Borczuk shall accept no responsibility for Services undertaken by any third party contractor employed by Borczuk.

If the Customer believes that they have any claim in relation to Services undertaken by that third party then

said claim must be made against the third party contractor in the first instance.

33. Customer’s Responsibilities

33.1 Prior to Delivery, it shall be the Customer’s responsibility to:

(a) mark all boundaries of the nominated address, and if applicable to the Container supplied, locating all

gas pipes, water pipes, sewage lines, drainage lines, telephone cabling, and other utilities that are on,

near, or adjacent to the land upon which the Container is to be located; and

(b) ensure the nominated address is level and Borczuk has clear and free access within twenty (20) metres

thereof to enable them to deliver and/or remove the Container. Borczuk shall not be liable for any loss or

damage to the address (including, without limitation, damage to pathways, driveways and concreted or

paved or grassed areas) unless due to the negligence of Borczuk, and the Customer shall be responsible

for the payment of any extra charges incurred by Borczuk as a result of delays or difficulties in delivering

the Container (including, but not limited to, in the event the Container needs to be lifted over a fence,

etc.); and

against all costs incurred thereby in recovering such vehicles in the event they become bogged or

otherwise immovable; and

(d) advise Borczuk of any possibility or knowledge of any subsidence, slip, erosion, flooding, or any other thing

that may constitute a hazard on the nominated address where the Container is to be delivered, or on

any adjacent land.

33.2 It shall be the responsibility of the Customer to arrange and pay for suitably licensed contractors to provide

works and materials in order for the Container to be suitable for occupancy or habitation in accordance with

all relevant laws and legal requirements of the State in which the Container will be located, and:

(a) the construction or alteration of footings, or a concrete slab, for the Container; or

(b) connecting or installing services for use at the location address; or

(d) the issuance of planning or building permits or similar authorisations (excluding the Code of Compliance

for the Container itself) that are related to works required hereunder.

34. Defects

34.1 The Customer shall inspect the Container on Delivery and shall within seven (7) days thereof (time being

of the essence) notify Borczuk of any alleged defect, shortage in quantity, damage or failure to comply with the

description or Borczuk’s quotation. The Customer shall afford Borczuk an opportunity to inspect the Container within

a reasonable time following such notification if the Customer believes the Container is defective in any way. If

the Customer shall fail to comply with these provisions the Container shall be presumed to be free from any

defect or damage. For any defective Container, which Borczuk has agreed in writing that the Customer is entitled

to reject, Borczuk’s liability for any defect or damage to the Container is:

(a) limited to the value of any express warranty provided to the Customer to Borczuk (at Borczuk’s sole discretion);

(b) limited to any warranty to which Borczuk is entitled, if Borczuk did not manufacture the Container; or

34.2 The Container will not be accepted for return other than in accordance with 34.1 above.

34.3 Notwithstanding clause 34.1, Borczuk shall not be liable for any defect or damage which may be caused or partly

caused by or arise as a result of:

(a) the Customer failing to properly maintain, install or store the Container; or

(b) the Customer using the Container for any purpose other than that for which it was designed; or

become apparent to a reasonably prudent operator or user; or

(d) the Customer failing to follow any instructions or guidelines provided by Borczuk; or

(e) fair wear and tear, any accident, or act of God.

35. Intellectual Property

35.1 Where Borczuk has designed, drawn or developed ContainBorczuk for the Customer, then the copyright in any

designs and drawings and documents shall remain the property of Borczuk. Under no circumstances may such

designs, drawings and documents be used without the express written approval of Borczuk.

35.2 The Customer warrants that all designs, specifications or instructions given to Borczuk will not cause Borczuk

to infringe any patent, registered design or trademark in the execution of the Customer’s order and the

Customer agrees to indemnify Borczuk against any action taken by a third party against Borczuk in respect of any

such infringement.

35.3 The Customer agrees that Borczuk may (at no cost) use for the purposes of marketing or entry into any

competition, any documents, designs, drawings or ContainBorczuk which Borczuk has created for the Customer.

36. Other Applicable Legislation