1. INCONSISTENCY OF TERMS
1.1 Subject to clause 1.3, these terms and conditions (‘Billi Rental Terms and Conditions’) form part of the terms and conditions of the Rental Agreement between Billi and the Renter.
1.2 Subject to clause 1.3, the Billi Pty Ltd general terms and conditions of trade (‘Billi Terms and Conditions of Trade’) displayed at www.billi.com.au, in turn, form part of the Billi Rental Terms and Conditions.
1.3 In the event of any inconsistency between the terms of the Rental Agreement, the Billi Rental Terms and Conditions and the Billi Terms and Conditions of Trade, the terms of the following shall prevail in priority, to the extent of any such inconsistency:
(a) the Rental Agreement;
(b) the Billi Rental Terms and Conditions; and
(c) the Billi Terms and Conditions of Trade.
1.4 The defined terms set out in these Billi Rental Terms and Conditions shall have an identical meaning as provided for in the Rental Agreement and the Billi Terms and Conditions of Trade. To the extent of any inconsistency, priority will apply in accordance with clause 1.3.
1.5 For the purposes of this clause, the expression ‘Rented Equipment’ shall be deemed to read ‘Goods’ and the expression ‘Buyer’ shall be deemed to read ‘Buyer’ as provided for under the Billi Terms and Conditions of Trade.
In these Billi Rental Terms and Conditions:
‘Billi means Billi Pty Ltd (ACN 124 066 717) and its substitutes, successors and permitted assigns;
‘Billi Standard Installation Requirements’ means the Billi standard installation requirements displayed at www.billi.com.au from time to time;
‘Billi Terms and Conditions of Trade’ mean Billi’s general terms and conditions of trade displayed at www.billi.com.au from time to time;
‘Commencement Date’ means the date detailed in the Rental Agreement;
‘GST’ has the meaning given in the GST Law;
‘GST Law’ means the A New Tax System (Goods and Services Tax) Act 1999 (Cth) as amended from time to time;
‘GST’ has the same meaning as in the A New Tax System (Rented Equipment and Services Tax) Act 1999 (Cth).
‘Premises’ means the Renter’s premises identified in the Rental Agreement;
‘Premises Lease’ means the lease or sublease of the Premises (if any) between a landlord or sub- ‘landlord and the Renter;
‘Rental Agreement’ means the rental agreement entered into by Billi and the Renter, to which these Billi Rental Terms and Conditions are attached and form part of;
‘Rental Period’ means the period commencing on the Commencement Date and identified in the Rental Agreement;
‘Rental Fees’ means those rental fees identified in the Rental Agreement;
‘Rented Equipment’ means the Rented Equipment identified in the Rental Agreement and any replacement for those Rented Equipment that may be issued by Billi from time to time, and shall include all accessories;
‘Renter means the person or entity identified in the Rental Agreement;
By signing the Rental Agreement and providing it to Billi, the Renter agrees to rent from Billi the Rented Equipment for the Rental Period at the Rental Fees in accordance with the Rental Agreement.
4. DELIVERY AND INSTALLATION OF RENTED EQUIPMENT AND OWNERSHIP OF RENTED EQUIPMENT
4.1 As soon as reasonably practicable after receipt of the first monthly instalment, Billi will arrange to deliver the Rented Equipment to the Renter and install the Rented Equipment at the Premises.
4.2 Billi shall only be required to install the Rented Equipment in accordance with the Billi Standard Installation Requirements. The Renter shall undertake all modifications necessary to conform with the Billi Standard Installation Requirements prior to installation of the Rented Equipment, at its own expense.
4.3 Billi shall charge the Renter an installation fee, at prevailing Billi scheduled rates, for installation on granite bench tops, stone bench tops or bench tops that are greater than 48mm in thickness.
4.4 The Renter agrees to ensure it will do all things necessary to permit Billi to be able to install the Rented Equipment in accordance with the Billi Standard Installation Requirements.
4.5 Upon installation the Rented Equipment is deemed accepted by the Renter whereupon all risk passes to the Renter.
4.6 Billi retains full title to the Rented Equipment notwithstanding:
(a) the delivery of the Rented Equipment to the Renter;
(b) the possession and use of the Rented Equipment by the Renter; and
(c) the payment of any Rental Fees by the Renter,
subject only to the rights of the Renter as a bailee of the Rented Equipment with a right only to use them in accordance with and under the terms of the Rental Agreement.
5. RENTAL FEES
5.1 The Renter must pay the Rental Fees for the Rented Equipment promptly and on or before each due date. Payment may be made by direct debit arrangement in favour of Billi (free of deductions) to the bank account or at any place or financial institution as Billi from time to time specifies by notice in writing to the Renter. The Renter expressly authorises the entering into of a recognised direct debit arrangement with Billi and shall sign all documentation necessary to facilitate payment in this manner.
5.2 Without limiting the ability for Billi to recover all amounts payable under the Rental Agreement, the Renter authorises Billi to charge any amounts owing by the Renter to any credit card or account details of which have been provided to Billi.
5.3 The Rental Fees shall be payable during the Rental Period by the number of consecutive instalments as detailed in the Rental Agreement, each to be in the amount set out in the Rental Agreement. The first instalment shall be paid on or prior to the Commencement Date.
6. PREMISES LEASE IS BINDING
6.1 If there is a Premises Lease, the Renter warrants in favour of Billi that the Premises Lease is valid and binding for the Rental Period and that all rental and other payments required to be made by the Renter pursuant to the Premises Lease have been and will be made on each due date for payment and that the Renter is not in default in compliance with any provisions of the Premises Lease.
6.2 In the event that the Renter assigns or sub-lets its rights under a Premises Lease, to the extent that the Rented Equipment is situated in the Premises subject to such assignment or sub-letting arrangement, the Renter shall ensure that such assignment or sub-letting arrangement will maintain Billi’s rights provided for in the Rental Agreement, including Billi’s rights to title, entry and inspection to the Premises and of the Rented Equipment.
7. USE AND MAINTENANCE OF RENTED EQUIPMENT
7.1 The Renter will ensure that the Rented Equipment will be used solely and exclusively by the Renter and the Rented Equipment shall not be removed from, or concealed within, the Premises. Without limiting the generality of this clause, the Renter must comply in all respects with the instructions and recommendations of Billi relating to the Rented Equipment and their use and maintenance of the Rented Equipment.
7.2 Billi shall, during the Rental Period, provide the scheduled maintenance services detailed in the Rental Agreement. Billi shall, during the Rental Period, further provide repairs and replacement of parts to the Rented Equipment due to malfunction or scheduled maintenance on the Rented Equipment for the Rental Period.
7.3 Scheduled maintenance services will include filter cartridge supply and replacement, sanitisation, complete system check, minor adjustments and replacement parts as scheduled and detailed in the Rental Agreement.
7.4 The Renter acknowledges and agrees that repairs and replacement of parts outside of regular scheduled service intervals, and additional filter changes requested in addition to the scheduled maintenance services, will be charged and payable separately at prevailing Billi scheduled rates.
7.5 Scheduled maintenance services, additional service and repairs will only be carried out within normal business hours, Monday to Friday, unless otherwise agreed.
7.6 Damage to Rented Equipment caused by unauthorised service persons, abnormal water conditions, negligence or abuse, will not be covered by scheduled maintenance services and necessary repairs will be charged at prevailing Billi scheduled rates.
8. ALTERATION OF RENTED EQUIPMENT
The Renter will not conceal the Rented Equipment, move the Rented Equipment or part with possession or control of it, or of any elements of it, without Billi’s prior written consent. The Renter will not alter the Rented Equipment or alter or deface any identifying number, name or mark upon the Rented Equipment. Billi shall at all reasonable times have access to the Premises and to the Rented Equipment for the purpose of inspecting the Rented Equipment.
9. NO ASSIGNMENT BY RENTER
The Renter shall not sell, purport to sell, transfer, assign, mortgage, encumber, pledge, underlet, part with possession of, create any lien in respect of, or otherwise deal with or dispose of the Rented Equipment or any interest therein, unless authorised by Billi or the terms of the Rental Agreement.
10.1 The Renter shall insure the Rented Equipment, at an amount equal to Billi’s prevailing recommended sale pricing for such Rented Equipment, on an all risks basis noting Billi as an insured party.
10.2 The Renter shall provide to Billi, immediately on request, evidence of the insurance policy detailed in clause 10.1.
11.1 The Renter will use and keep the Rented Equipment at the sole risk of the Renter in all respects and releases, to the full extent permitted by law, Billi its employees, agents and contractors from all injuries, costs, claims, actions, proceedings, demands, expenses, judgments, damages or losses of any kind whatsoever resulting from or attributable to any accident, damage, loss, death or injury occurring in the vicinity of the Rented Equipment or attributable to the Rented Equipment except to the extent that the same is caused by the negligence on the part of Billi, its employees, agents or contractors.
11.2 The Renter assumes liability for and will keep Billi, its employees, agents and contractors indemnified against any and all injuries, costs, claims, actions, proceedings, demands, expenses, judgments, damages or losses of any kind whatsoever resulting from or attributable to any accident, damage, loss, death or injury occurring in the vicinity of the Rented Equipment or attributable to the Rented Equipment except to the extent that the same is caused by the negligence on the part of Billi, its employees, agents or contractors. This indemnity will continue in force and effect notwithstanding termination or expiry of the Rental Agreement.
12. DEFAULT PROVISIONS
Billi, without prejudice to any other available remedy, shall be entitled to terminate the Rental Agreement immediately by written notice to the Renter upon the happening of any of the following:
(a) the Renter failing to duly or punctually perform or observe any provision of the Rental Agreement or the Premises Lease, after the expiration of 7 days of written notice to the Renter to remedy the same;
(b) the passing of a resolution for the winding up of the Renter or the filing with any court of competent jurisdiction of an application for the dissolution or winding up of the Renter;
(c) the appointment of an official manager, administrator, trustee, receiver or receiver and manager or similar officer in respect of the Renter or of any of the Renter’s assets;
(d) any distress or execution being threatened or levied on or against the Rented Equipment, or the Rented Equipment being claimed or seized by any person having or claiming an interest in the Premises; or
(e) the Renter sells its business or there is a material change in control within the Renter without the prior written consent of Billi.
13. DELIVERY UP AND REMOVAL OF RENTED EQUIPMENT
13.1 On the expiration or termination of the Rental Agreement, whether on or prior to expiration of the Rental Period, unless Billi has consented to an overholding as provided for in clause 15, the Renter shall permit Billi to attend the Premises, or upon other premises on which Billi reasonably suspects the Rented Equipment is kept, during normal business hours to permit Billi to remove the Rented Equipment. The Rental Equipment shall be in good and substantial repair and condition.
13.2 If the Renter fails to permit Billi to attend the Premises, or upon other premises on which Billi and/or its employees, agents and contractors reasonably suspect the Rented Equipment is kept, for the purpose set out in clause 13.1, Billi may take any act including, without limitation, breaking open any inside or outside gate, door or fastening and detaching or dismantling the Rented Equipment from any part of the Premises or other premises (as the case may be) without incurring any liability whatsoever to the Renter. The Renter grants Billi an irrevocable authority to use the name of the Renter and to act on the Renter’s behalf in exercising any rights or instituting, pursuing or enforcing any legal proceedings which Billi may think desirable to protect its rights in the Rented Equipment or to recover possession thereof.
13.3 If Billi re-takes possession of the Rented Equipment pursuant to clause 13.2, the Renter will pay to Billi all expenses reasonably and properly incurred by Billi in re-taking possession of the Rented Equipment, including without limitation:
(a) all legal expenses incurred in connection with any relevant Court proceedings;
(b) fees to recover the Rented Equipment from the possession or control of any competent authority;
(c) the cost of dismantling and removal and transporting to, and storage at, Billi’s place of business or to any other place reasonably designated by Billi; and
(d) all and any other payments of a like nature reasonably incurred by Billi in re-taking possession of the Rented Equipment;(together ‘Recovery Costs’).
13.4 Billi is entitled, at its option, to retain the Rented Equipment re-taken pursuant to this clause and may sue the Renter for damages (including the Recovery Costs) for breach of the Rental Agreement.
13.5 The Renter shall not remove or attempt to uninstall the Rented Equipment at any time.
14. AMOUNTS DUE ON EARLY TERMINATION
Upon early termination of the Rental Agreement, for any reason, Billi:
(a) will be entitled to retain all Rental Fees and other money previously paid by the Renter to Billi under the Rental Agreement; and
(b) may recover from the Renter the balance of Rental Fees due for the Rental Period as an amount immediately due and payable and any and all additional damages and expenses sustained by Billi by reason of such early termination or by reason of the breach of any provision contained or implied in the Rental Agreement.
15. OVERHOLDING BEYOND EXPIRY OF RENTAL PERIOD
In the event that the Renter remains in possession of the Rental Equipment beyond the expiry of the Rental Period with the consent of Billi, the terms of the Rental Agreement will continue to apply albeit on a periodic basis equal to the instalment period detailed in the Rental Agreement (‘Additional Rental Period’) and will be continued to be extended by each Additional Rental Period until either Billi uninstalls the Rented Equipment or the Renter notifies Billi to uninstall the Rented Equipment by not less than 30 days’ written notice. The Renter shall be obliged to continue to pay the Rental Fees for the Additional Rental Periods.
16. GUARANTEE AND INDEMNITY
16.1 If a Guarantor is specified in the Rental Agreement, in consideration of Billi entering into the Rental Agreement, the Guarantor (and if more than one, each Guarantor) unconditionally and irrevocably:
(a) guarantees to Billi the due and punctual performance and observance by the Renter of all of the obligations contained in or implied under or in relation to the Rental Agreement that must be performed and observed by the Renter (‘Guaranteed Obligations’);
(b) as a separate and independent obligation, irrevocably indemnifies Billi against all claims, losses, damages, liabilities, costs and expenses which Billi may now or in the future suffer or incur consequent on or arising directly or indirectly out of any breach or non-observance by the Renter of a Guaranteed Obligation.
16.2 This clause is a continuing guarantee and indemnity and the Guarantor’s obligations under this guarantee are absolute, unconditional and irrevocable and are principal obligations and are not released, discharged or otherwise affected by anything which but for this provision might have that effect, including but not limited to:
(a) the death, bankruptcy or winding up of or insolvency of the Renter;
(b) any indulgence of time or other indulgence or concession to, compounding or compromising with, or wholly or partially releasing the Renter or a Guarantor of an obligation;
(c) any change to the terms of the Rental Agreement, the Billi Rental Terms and Conditions, the Billi Terms and Conditions of Trade, or terms upon which any Rented Equipment is supplied to, or paid for by, the Renter;
(d) if the Guarantor is a director or officer of the Renter upon the signing of the Rental Agreement, the resignation or termination of the Guarantor as a director or officer of the Renter;
(e) a rule of law or equity to the contrary;
(f) any omission or time delay on behalf of Billi or anything else that could be classified as prejudicial, or limit Billi’s obligations under the terms of the Rental Agreement; and
(g) any other act, omission, matter or thing whatsoever that might otherwise release, discharge or affect the obligations of the Guarantor under the terms of the Rental Agreement.
16.3 The Guarantor agrees that in the event that Billi is unable to recover from the Guarantor in relation to the whole or part of the Guarantee by reason of legal disability, limitation, incapacity, failure or fact of circumstance, then the obligations detailed in this clause shall be construed as an indemnity and the Guarantor shall nevertheless as Guarantor hold Billi fully indemnified in respect of every failure by the Renter to punctually perform or observe the Guaranteed Obligations.
16.4 Billi may enforce the obligations detailed in this clause against a Guarantor without first having to resort to another guarantee or security interest or other agreement relating to the Guaranteed Obligations.
16.5 The obligations detailed in this clause are:
(a) principal obligations and are not to be treated as ancillary or collateral to another right or obligation; and
(b) independent of and not in substitution for or affected by another security interest or guarantee or other document or agreement which Billi or another person may hold concerning the Guaranteed Obligations.
16.6 The Guarantor waives any right of subrogation until the Guaranteed Obligations are discharged in full.
16.7 The Guarantor must not exercise any right of set-off that reduces or extinguishes the obligations of the Renter or the Guarantor to perform the Guaranteed Obligations.
16.8 If the Renter becomes insolvent, the Guarantor must co-operate with Billi and comply with all Billi’s directions in regards to any distribution, payments or proof or claim by the administrator, liquidator or trustee of the Renter. The Guarantor must not prove or claim in the insolvency for any distribution or payment without Billi’s consent in writing.
16.9 No conduct of Billi (including a failure to exercise, a partial exercise or delay in exercising, a right, power or remedy) operates as a waiver of the right, power or remedy or otherwise prevents the exercise of the right, power or remedy. Billi may only waive a right, power or remedy in writing signed by an authorised officer of Billi.
16.10 Any provision detailed in this clause which is invalid or unenforceable in any jurisdiction must be read down for the purposes of that jurisdiction, if possible, so as to be valid and enforceable. If that provision cannot be read down, then it is capable of being severed to the extent of the invalidity or unenforceability without affecting the remaining provisions detailed in this clause or affecting the validity or enforceability of that provision in any other jurisdiction.