Terms & Conditions

 

1. Definitions
   • “Shorscaff” means Shorscaff Pty Ltd, its successors and assigns or any person acting on behalf of and with the authority of Shorscaff Pty Ltd.
   • “Client” means the person/s hiring the Goods (and/or purchasing the goods) or any person acting on behalf of and with the authority of the Client requesting Shorscaff to provide the Services as specified in any proposal, quotation, order, invoice or other documentation, and:
     • if there is more than one Client, is a reference to each Client jointly and severally; and
     • if the Client is a part of a Trust, shall be bound in their capacity as a trustee; and
     • includes the Client’s executors, administrators, successors and permitted assigns.
   • “Goods” means all Goods or Services supplied by Shorscaff to the Client at the Client’s request from time to time (where the context so permits the terms ‘Goods’ or ‘Services’ shall be interchangeable for the other).
   • “Equipment” means all Equipment including any accessories supplied on hire by Shorscaff to the Client (and where the context so permits shall include any supply of Services). The Equipment shall be as described on the invoices, quotation, authority to hire, or any other work authorisation form provided by Shorscaff to the Client.
   • “Minimum Hire Period” means the Minimum Hire Period as described on the invoices, quotation, authority to hire, or any other forms as provided by Shorscaff to the Client.
   • “Price” means the Price payable (plus any GST where applicable) for the Goods and/or Equipment hire as agreed between Shorscaff and the Client in accordance with clause 5
   • “GST” means Goods and Services Tax as defined within the “A New Tax System (Goods and Services Tax) Act 1999” (Cth).

 

2. Acceptance
   • The Client is taken to have exclusively accepted and is immediately bound, jointly and severally, by these terms and conditions if the Client places an order for or accepts delivery of the Goods/Equipment.
   • 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 contract between the Client and Shorscaff.
   • The Client acknowledges and accepts:
     • the product supply of shrinkwrap offers a manufacturer’s guarantee of UV protection and can withstand up to the manufacturers specified tolerance and/or Bureau of Meteorology definition regarding gale force winds, being winds of up to 63-75kph; and
     • that when the contract period for hire completes under this contract and payment is not forthcoming when due and payable, then Shorscaff reserves the right at their discretion to leave the scaffolding erected until such time as payment effected and the Client shall be liable for all loss hire charges in accordance with clause 2(e);
     • no cantilever scaffolds are included in the Price, unless otherwise agreed;
     • variations to the contract requested by the Client that are subject to labour charges, shall be at the rate of $65.00 per person per hour or Shorscaff’s current hourly rate, unless otherwise stated at the time of the variation request.
   • These terms and conditions may be meant to be read in conjunction with Shorscaff’s Labour Hire Form, and:
     • where the context so permits, the terms ‘Goods’ ‘Equipment’ or ‘Services’ shall include any supply of Labour, as defined therein; and
     • if there are any inconsistencies between the two documents then the terms and conditions contained therein shall prevail.
   • Shorscaff shall only be responsible for their performance to the party that contracts them to undertake the Services and shall not be responsible to any third party irrespective of their relationship to the Client.
   • Where the Client requesting or organising Shorscaff to provide the Services is acting with or on behalf of any third party and that third party is intended to be responsible for the payment (or any part thereof) of the Price then in the event that the third party does not pay for the Services when due, the Client acknowledges that they shall be liable for the payment of the Price as if they had contracted the Services on their own behalf.
   • Where Shorscaff gives advice, recommendations, information, assistance or service to the Client or the Client’s agent, regarding the Goods, Equipment or Services, then it is given in good faith and Shorscaff shall not be liable in any way whatsoever for any damages, losses or costs however arising resulting from the Client relying on the same.
   • 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.

 

3. Errors and Omissions
   • The Client acknowledges and accepts that Shorscaff shall, without prejudice, accept no liability in respect of any alleged or actual error(s) and/or omission(s):
     • resulting from an inadvertent mistake made by Shorscaff in the formation and/or administration of this contract; and/or
     • contained in/omitted from any literature (hard copy and/or electronic) supplied by Shorscaff in respect of the Services.
   • In the event such an error and/or omission occurs in accordance with clause 1, and is not attributable to the negligence and/or wilful misconduct of Shorscaff; the Client shall not be entitled to treat this contract as repudiated nor render it invalid.

 

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

 

5. Price and Payment
   • At Shorscaff’s sole discretion the Price shall be either:
     • as indicated on any invoice provided by Shorscaff to the Client; or
     • Shorscaff’s quoted price (subject to clause 2) which will be valid for the period stated in the quotation or otherwise for a period of thirty (30) days.
   • Shorscaff reserves the right to change the Price if a variation to Shorscaff’s quotation is requested. Any variation from the plan of scheduled Services and/or specifications of the Goods/Equipment, any variation as a result of unforeseen circumstances, such as poor weather conditions, limitations to accessing the site and safety considerations (e.g. overhead hazards, unstable footings, etc.), prerequisite work by any third party not being completed, any relocation and/or alteration to working platforms and/or hop up brackets (or the Goods entirely), or as a result of any increase to Shorscaff in the cost of materials and labour, fluctuations in currency exchange rates, extended hire periods or any Government or regulatory body imposing or increasing fees, etc.) will be charged for on the basis of Shorscaff’s quotation and will be shown as variations on the invoice. The Client shall be required to respond to any variation submitted by Shorscaff within ten (10) working days. Failure to do so will entitle Shorscaff 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.
   • At Shorscaff’s sole discretion a bond may be required which shall be refunded upon return of the Equipment in a condition acceptable to Shorscaff.
   • At Shorscaff’s sole discretion a deposit may be required.
   • Time for payment for the Goods/Equipment being of the essence, the Price will be payable by the Client on the date/s determined by Shorscaff, which may be:
     • by way of progress payments in accordance with Shorscaff’s payment schedule;
     • thirty (30) days following the end of the month in which a statement is delivered to the Client’s address or address for notices;
     • the date specified on any invoice or other form as being the date for payment; or
     • failing any notice to the contrary, the date which is thirty (30) days following the date of any invoice given to the Client by Shorscaff.
   • Payment may be made by 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 Client and Shorscaff.
   • The Client shall not be entitled to set off against, or deduct from the Price, any sums owed or claimed to be owed to the Client by Shorscaff nor to withhold payment of any invoice because part of that invoice is in dispute.
   • Unless otherwise stated the Price does not include GST. In addition to the Price, the Client must pay to Shorscaff an amount equal to any GST Shorscaff must pay for any supply by Shorscaff under this or any other contract for the sale of the Goods/hire of the Equipment. The Client must pay GST, without deduction or set off of any other amounts, at the same time and on the same basis as the Client pays the Price. In addition, the Client must pay any other taxes and duties that may be applicable in addition to the Price except where they are expressly included in the Price.

 

6. Delivery of Goods/Equipment
   • Delivery (“Delivery”) of the Goods/Equipment is taken to occur at the time that Shorscaff (or Shorscaff’s nominated carrier) delivers the Goods/Equipment to the Client’s nominated address even if the Client is not present at the address.
   • At Shorscaff’s sole discretion the cost of delivery is in addition to the Price.
   • The Client must take Delivery, by receipt or collection of the Goods/Equipment, whenever they are tendered for Delivery. In the event that the Client is unable to take Delivery as arranged then Shorscaff shall be entitled to charge a reasonable fee for redelivery and/or storage.
   • Any time specified by Shorscaff for Delivery is an estimate only and Shorscaff will not be liable for any loss or damage incurred by the Client as a result of Delivery being late. However both parties agree that they shall make every endeavour to enable the Goods /Equipment to be supplied at the time and place as was arranged between both parties. In the event that Shorscaff is unable to supply the Goods/Equipment (including any installation and/or removal thereof) as agreed solely due to any action or inaction of the Client then Shorscaff shall be entitled to charge a reasonable fee (to cover mileage and lost time hours, loss of hire fees associated with the Equipment being unavailable) for re-supplying the Goods/Equipment at a later time and date.
   • The Client shall ensure that Shorscaff has clear and free access to the nominated address at all times to enable them to make Delivery. Shorscaff shall not be liable for any loss or damage to the property (including, without limitation, damage to pathways, driveways and concreted or paved or grassed areas), unless due to the negligence of Shorscaff.
   • Where applicable, an off-hire receipt shall be issued by Shorscaff when the Equipment is picked up by Shorscaff or returned to Shorscaff’s premises.

 

7. Risk to Goods
   • Risk of damage to or loss of the Goods passes to the Client on Delivery and the Client must insure the Goods on or before Delivery.
   • If any of the Goods are damaged or destroyed following delivery but prior to ownership passing to the Client, Shorscaff is entitled to receive all insurance proceeds payable for the Goods. The production of these terms and conditions by Shorscaff is sufficient evidence of Shorscaff’s rights to receive the insurance proceeds without the need for any person dealing with Shorscaff to make further enquiries.

 

8. Title to Goods
   • Shorscaff and the Client agree that ownership of the Goods shall not pass until:
     • the Client has paid Shorscaff all amounts owing to Shorscaff; and
     • the Client has met all of its other obligations to Shorscaff.
   • Receipt by Shorscaff 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.
   • It is further agreed that until ownership of the Goods passes to the Client in accordance with clause 1:
     • the Client is only a bailee of the Goods and must return the Goods to Shorscaff on request.
     • the Client holds the benefit of the Client’s insurance of the Goods on trust for Shorscaff and must pay to Shorscaff the proceeds of any insurance in the event of the Goods being lost, damaged or destroyed.
     • the Client must not sell, dispose, or otherwise part with possession of the Goods other than in the ordinary course of business and for market value. If the Client sells, disposes or parts with possession of the Goods then the Client must hold the proceeds of any such act on trust for Shorscaff and must pay or deliver the proceeds to Shorscaff on demand.
     • the Client should not convert or process the Goods or intermix them with other goods but if the Client does so then the Client holds the resulting product on trust for the benefit of Shorscaff and must sell, dispose of or return the resulting product to Shorscaff as it so directs.
     • the Client irrevocably authorises Shorscaff to enter any premises where Shorscaff believes the Goods are kept and recover possession of the Goods.
     • Shorscaff may recover possession of any Goods in transit whether or not delivery has occurred.
     • the Client shall not charge or grant an encumbrance over the Goods nor grant nor otherwise give away any interest in the Goods while they remain the property of Shorscaff.
     • Shorscaff may commence proceedings to recover the Price of the Goods sold notwithstanding that ownership of the Goods has not passed to the Client.

 

9. Personal Property Securities Act 2009 (“PPSA”)
   • In this clause financing statement, financing change statement, security agreement, and security interest has the meaning given to it by the PPS
   • Upon assenting to these terms and conditions in writing the Client acknowledges and agrees that these terms and conditions constitute a security agreement for the purposes of the PPSA and creates a security interest in all Goods/Equipment and/or collateral (account) – being a monetary obligation of the Client to Shorscaff for Services – that have previously been supplied and that will be supplied in the future by Shorscaff to the Client.
   • The Client undertakes to:
     • promptly sign any further documents and/or provide any further information (such information to be complete, accurate and up-to-date in all respects) which Shorscaff may reasonably require to;
       • register a financing statement or financing change statement in relation to a security interest on the Personal Property Securities Register;
       • register any other document required to be registered by the PPSA; or
       • correct a defect in a statement referred to in clause 3(a)(i) or 9.3(a)(ii);
     • indemnify, and upon demand reimburse, Shorscaff for all expenses incurred in registering a financing statement or financing change statement on the Personal Property Securities Register established by the PPSA or releasing any Goods/Equipment charged thereby;
     • not register a financing change statement in respect of a security interest without the prior written consent of Shorscaff;
     • not register, or permit to be registered, a financing statement or a financing change statement in relation to the Goods/Equipment and/or collateral (account) in favour of a third party without the prior written consent of Shorscaff;
     • immediately advise Shorscaff of any material change in its business practices of selling Goods which would result in a change in the nature of proceeds derived from such sales.
   • Shorscaff and the Client agree that sections 96, 115 and 125 of the PPSA do not apply to the security agreement created by these terms and conditions.
   • The Client waives their rights to receive notices under sections 95, 118, 121(4), 130, 132(3)(d) and 132(4) of the PPSA.
   • The Client waives their rights as a grantor and/or a debtor under sections 142 and 143 of the PPSA.
   • Unless otherwise agreed to in writing by Shorscaff, the Client waives their right to receive a verification statement in accordance with section 157 of the PPSA.
   • The Client must unconditionally ratify any actions taken by Shorscaff under clauses 3 to 9.5.
   • Subject to any express provisions to the contrary (including those contained in this clause 9), nothing in these terms and conditions is intended to have the effect of contracting out of any of the provisions of the PPSA.

 

10. Security and Charge
    • In consideration of Shorscaff agreeing to supply the Goods/Equipment, the Client charges all of its rights, title and interest (whether joint or several) in any land, realty or other assets capable of being charged, owned by the Client either now or in the future, to secure the performance by the Client of its obligations under these terms and conditions (including, but not limited to, the payment of any money).
    • The Client indemnifies Shorscaff from and against all Shorscaff’s costs and disbursements including legal costs on a solicitor and own client basis incurred in exercising Shorscaff’s rights under this clause.
    • The Client irrevocably appoints Shorscaff and each director of Shorscaff as the Client’s true and lawful attorney/s to perform all necessary acts to give effect to the provisions of this clause 10 including, but not limited to, signing any document on the Client’s behalf.

 

11. Defects, Warranties and Returns, Competition and Consumer Act 2010 (CCA)
    • The Client must inspect the Goods/Equipment on delivery and must within forty-eight (48) hours for Equipment on hire (or within seven (7) days for Goods) of delivery notify Shorscaff in writing of any evident defect/damage, shortage in quantity, or failure to comply with the description or quote. The Client must notify any other alleged defect in the Goods/Equipment as soon as reasonably possible after any such defect becomes evident. Upon such notification the Client must allow Shorscaff to inspect the Goods/Equipment.
    • Under applicable State, Territory and Commonwealth Law (including, without limitation the CCA), certain statutory implied guarantees and warranties (including, without limitation the statutory guarantees under the CCA) may be implied into these terms and conditions (Non-Excluded Guarantees).
    • Shorscaff acknowledges that nothing in these terms and conditions purports to modify or exclude the Non-Excluded Guarantees.
    • Except as expressly set out in these terms and conditions or in respect of the Non-Excluded Guarantees, Shorscaff makes no warranties or other representations under these terms and conditions including but not limited to the quality or suitability of the Goods/Equipment. Shorscaff’s liability in respect of these warranties is limited to the fullest extent permitted by law.
    • If the Client is a consumer within the meaning of the CCA, Shorscaff’s liability is limited to the extent permitted by section 64A of Schedule 2.
    • If Shorscaff is required to replace the Goods under this clause or the CCA, but is unable to do so, Shorscaff may refund any money the Client has paid for the Goods.
    • If the Client is not a consumer within the meaning of the CCA, Shorscaff’s liability for any defect or damage in the Goods is:
      • limited to the value of any express warranty or warranty card provided to the Client by Shorscaff at Shorscaff’s sole discretion;
      • limited to any warranty to which Shorscaff is entitled, if Shorscaff did not manufacture the Goods;
      • otherwise negated absolutely.
    • Subject to this clause 11, returns will only be accepted provided that:
      • the Client has complied with the provisions of clause 1; and
      • Shorscaff has agreed that the Goods are defective; and
      • the Goods are returned within a reasonable time at the Client’s cost (if that cost is not significant); and
      • the Goods are returned in as close a condition to that in which they were delivered as is possible.
    • Notwithstanding clauses 1 to 11.8 but subject to the CCA, Shorscaff shall not be liable for any defect or damage which may be caused or partly caused by or arise as a result of:
      • the Client failing to properly maintain or store any Goods/Equipment;
      • the Client using the Goods/Equipment for any purpose other than that for which they were designed;
      • the Client continuing the use of the Goods/Equipment after any defect became apparent or should have become apparent to a reasonably prudent operator or user;
      • the Client failing to follow any instructions or guidelines provided by Shorscaff;
      • fair wear and tear, any accident, or act of God.
    • Notwithstanding anything contained in this clause if Shorscaff is required by a law to accept a return then Shorscaff will only accept a return on the conditions imposed by that law.

 

12. Intellectual Property
    • Where Shorscaff has designed, drawn or developed Goods/Equipment for the Client, then the copyright in any designs and drawings and documents shall remain the property of Shorscaff. Under no circumstances may such designs, drawings and documents be used without the express written approval of Shorscaff.
    • The Client warrants that all designs, specifications or instructions given to Shorscaff will not cause Shorscaff to infringe any patent, registered design or trademark in the execution of the Client’s order and the Client agrees to indemnify Shorscaff against any action taken by a third party against Shorscaff in respect of any such infringement.
    • The Client agrees that Shorscaff may (at no cost) use for the purposes of marketing or entry into any competition, any documents, designs, drawings or Goods/Equipment which Shorscaff has created for the Client.

 

13. Default and Consequences of Default
    • Interest on overdue invoices shall accrue daily from the date when payment becomes due, until the date of payment, at a rate of two and a half percent (2.5%) per calendar month (and at Shorscaff’s sole discretion such interest shall compound monthly at such a rate) after as well as before any judgment.
    • If the Client owes Shorscaff any money the Client shall indemnify Shorscaff from and against all costs and disbursements incurred by Shorscaff in recovering the debt (including but not limited to internal administration fees, legal costs on a solicitor and own client basis, Shorscaff’s contract default fee, and bank dishonour fees).
    • Further to any other rights or remedies Shorscaff may have under this contract, if a Client has made payment to Shorscaff, and the transaction is subsequently reversed, the Client shall be liable for the amount of the reversed transaction, in addition to any further costs incurred by Shorscaff under this clause 13 where it can be proven that such reversal is found to be illegal, fraudulent or in contravention to the Client’s obligations under this contract.
    • Without prejudice to any other remedies Shorscaff may have, if at any time the Client is in breach of any obligation (including those relating to payment) under these terms and conditions Shorscaff may suspend or terminate the supply of Goods/Equipment to the Client. Shorscaff will not be liable to the Client for any loss or damage the Client suffers because Shorscaff has exercised its rights under this clause.
    • Without prejudice to Shorscaff’s other remedies at law Shorscaff shall be entitled to cancel all or any part of any order of the Client which remains unfulfilled and all amounts owing to Shorscaff shall, whether or not due for payment, become immediately payable if:
      • any money payable to Shorscaff becomes overdue, or in Shorscaff’s opinion the Client will be unable to make a payment when it falls due;
      • the Client has exceeded any applicable credit limit provided by Shorscaff;
      • the Client becomes insolvent, convenes a meeting with its creditors or proposes or enters into an arrangement with creditors, or makes an assignment for the benefit of its creditors; or
      • a receiver, manager, liquidator (provisional or otherwise) or similar person is appointed in respect of the Client or any asset of the Client.

 

14. Cancellation
    • Without prejudice to any other remedies Shorscaff may have, if at any time the Client is in breach of any obligation (including those relating to payment) under these terms and conditions Shorscaff may suspend or terminate the supply of Goods/Equipment to the Client. Shorscaff will not be liable to the Client for any loss or damage the Client suffers because Shorscaff has exercised its rights under this clause.
    • Shorscaff may cancel any contract to which these terms and conditions apply or cancel delivery of Goods/Equipment at any time before the Goods/Equipment are delivered by giving written notice to the Client. On giving such notice Shorscaff shall repay to the Client any money paid by the Client for the Goods/Equipment. Shorscaff shall not be liable for any loss or damage whatsoever arising from such cancellation.
    • In the event that the Client cancels delivery of Goods/Equipment the Client shall be liable for any and all loss incurred (whether direct or indirect) by Shorscaff as a direct result of the cancellation (including, but not limited to, any loss of profits).

 

15. Privacy Act 1988
    • The Client agrees for Shorscaff to obtain from a credit reporting body (CRB) a credit report containing personal credit information (e.g. name, address, D.O.B, occupation, previous credit applications, credit history) about the Client in relation to credit provided by Shorscaff.
    • The Client agrees that Shorscaff may exchange information about the Client with those credit providers and with related body corporates for the following purposes:
      • to assess an application by the Client; and/or
      • to notify other credit providers of a default by the Client; and/or
      • to exchange information with other credit providers as to the status of this credit account, where the Client is in default with other credit providers; and/or
      • to assess the creditworthiness of the Client including the Client’s repayment history in the preceding two (2) years.
    • The Client consents to Shorscaff being given a consumer credit report to collect overdue payment on commercial credit.
    • The Client agrees that personal credit information provided may be used and retained by Shorscaff for the following purposes (and for other agreed purposes or required by):
      • the provision of Goods/Equipment; and/or
      • analysing, verifying and/or checking the Client’s credit, payment and/or status in relation to the provision of Goods/Equipment; and/or
      • processing of any payment instructions, direct debit facilities and/or credit facilities requested by the Client; and/or
      • enabling the collection of amounts outstanding in relation to the Goods/Equipment.
    • Shorscaff may give information about the Client to a CRB for the following purposes:
      • to obtain a consumer credit report;
      • allow the CRB to create or maintain a credit information file about the Client including credit history.
    • The information given to the CRB may include:
      • personal information as outlined in 1 above;
      • name of the credit provider and that Shorscaff is a current credit provider to the Client;
      • whether the credit provider is a licensee;
      • type of consumer credit;
      • details concerning the Client’s application for credit or commercial credit (e.g. date of commencement/termination of the credit account and the amount requested);
      • advice of consumer credit defaults, overdue accounts, loan repayments or outstanding monies which are overdue by more than sixty (60) days and for which written notice for request of payment has been made and debt recovery action commenced or alternatively that the Client no longer has any overdue accounts and Shorscaff has been paid or otherwise discharged and all details surrounding that discharge(e.g. dates of payments);
      • information that, in the opinion of Shorscaff, the Client has committed a serious credit infringement;
      • advice that the amount of the Client’s overdue payment is equal to or more than one hundred and fifty dollars ($150).
    • The Client shall have the right to request (by e-mail) from Shorscaff:
      • a copy of the information about the Client retained by Shorscaff and the right to request that Shorscaff correct any incorrect information; and
      • that Shorscaff does not disclose any personal information about the Client for the purpose of direct marketing.
    • Shorscaff will destroy personal information upon the Client’s request (by e-mail) or if it is no longer required unless it is required in order to fulfil the obligations of this contract or is required to be maintained and/or stored in accordance with the law.
    • The Client can make a privacy complaint by contacting Shorscaff via e-mail. Shorscaff 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 Client is not satisfied with the resolution provided, the Client can make a complaint to the Information Commissioner at oaic.gov.au.

 

16. Dispute Resolution
    • If a dispute arises between the parties to this contract then either party shall send to the other party a notice of dispute in writing adequately identifying and providing details of the dispute. Within fourteen (14) days after service of a notice of dispute, the parties shall confer at least once, to attempt to resolve the dispute. At any such conference each party shall be represented by a person having authority to agree to a resolution of the dispute. In the event that the dispute cannot be so resolved either party may by further notice in writing delivered by hand or sent by certified mail to the other party refer such dispute to arbitration. Any arbitration shall be:
      • referred to a single arbitrator to be nominated by the President of the Institute of Arbitrators Australia; and
      • conducted in accordance with the Institute of Arbitrators Australia Rules for the Conduct of Commercial Arbitration.

 

17. Building and Construction Industry Security of Payments Act 2009
    • At Shorscaff’s sole discretion, if there are any disputes or claims for unpaid Equipment hire, Goods and/or Services then the provisions of the Building and Construction Industry Security of Payments Act 2009 may apply.
    • Nothing in this contract is intended to have the effect of contracting out of any applicable provisions of the Building and Construction Industry Security of Payments Act 2009 of South Australia, except to the extent permitted by the Act where applicable.

 

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

 

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

 

20. General
    • The failure by either party to enforce any provision of these terms and conditions shall not be treated as a waiver of that provision, nor shall it affect that party’s right to subsequently enforce that provision. If any provision of these terms and conditions shall be invalid, void, illegal or unenforceable the validity, existence, legality and enforceability of the remaining provisions shall not be affected, prejudiced or impaired.
    • These terms and conditions and any contract to which they apply shall be governed by the laws of South Australia, the state in which Shorscaff has its principal place of business, and are subject to the jurisdiction of the courts of South Australia.
    • Subject to clause 11, Shorscaff shall be under no liability whatsoever to the Client for any indirect and/or consequential loss and/or expense (including loss of profit) suffered by the Client arising out of a breach by Shorscaff of these terms and conditions (alternatively Shorscaff’s liability shall be limited to damages which under no circumstances shall exceed the Price of the Goods).
    • Neither party shall assign or sub-contract all or any part of their rights and obligations under this contract without the written consent of the other party.
    • The Client agrees that Shorscaff may amend these terms and conditions by notifying the Client in writing. These changes shall be deemed to take effect from the date on which the Client accepts such changes, or otherwise at such time as the Client makes a further request for Shorscaff to provide Goods to the Client.
    • Neither party shall be liable for any default due to any act of God, war, terrorism, strike, lock-out, industrial action, fire, flood, storm or other event beyond the reasonable control of either party.
    • Both parties warrant that they have the power to enter into this contract and have obtained all necessary authorisations to allow them to do so, they are not insolvent and that this contract creates binding and valid legal obligations on them.

 

Additional Terms & Conditions Applicable to Hire Only

 

21. Hire Period
    • Hire charges shall commence from the time the Equipment is collected by the Client from Shorscaff’s premises and will continue until the return of the Equipment to Shorscaff’s premises, and/or until the expiry of the Minimum Hire Period, whichever last occurs.
    • If Shorscaff agrees with the Client to deliver and/or collect the Equipment, hire charges shall commence from the time the Equipment leaves Shorscaff’s premises and continue until the Client notifies Shorscaff that the Equipment is available for collection, and/or until the expiry of the Minimum Hire Period, whichever last occurs.
    • The date upon which the Client advises of termination shall in all cases be treated as a full day’s hire.

 

22. Risk to Equipment
    • Shorscaff retains property in the Equipment nonetheless all risk for the Equipment passes to the Client on delivery.
    • The Client accepts full responsibility for the safekeeping of the Equipment and indemnifies Shorscaff for all loss, theft, or damage to the Equipment howsoever caused and without limiting the generality of the foregoing whether or not such loss, theft, or damage is attributable to any negligence, failure, or omission of the Client.
    • The Client will insure, or self insure, Shorscaff’s interest in the Equipment against physical loss or damage including, but not limited to, the perils of accident, fire, theft and burglary and all other usual risks and will effect adequate Public Liability Insurance covering any loss, damage or injury to property arising out of the Equipment. Further the Client will not use the Equipment nor permit it to be used in such a manner as would permit an insurer to decline any claim.
    • The Client accepts full responsibility for and shall keep Shorscaff indemnified against all liability in respect of all actions, proceedings, claims, damages, costs and expenses in respect of any injury to persons, damage to property, or otherwise arising out of the use of the Equipment during the hire period and whether or not arising from any negligence, failure or omission of the Client or any other persons.
    • The Client accepts that where downtime occurs as a result of a breakdown of the Equipment, delay in assembly or relocation of the Equipment, and/or dismantling of the Equipment, Shorscaff shall not be held responsible for such downtime and will not accept any charges from the Client or any third party for any losses or damages arising from such downtime.

 

23. Access and Installation
    • The Client shall ensure that Shorscaff has clear and free access to the nominated delivery address to enable Shorscaff to deliver, install and/or dismantle the Equipment, and Shorscaff agrees at the time of completion thereof to carry out in a reasonable way the clean-up of the site where scaffolding was installed. Furthermore, it is acknowledged that it is unreasonable to expect the clean-up to restore the property to its pre-existing condition, especially in the event where existing grass has died off due to the covering of base blocks to establish foundation support for the Equipment, such damage will remain the Client’s responsibility.
    • It shall be the Client’s responsibility to ensure that where the Equipment is installed on concreted areas, patios, driveways, timber decks, lower level roof areas or other structures that suitable coverings are put in place to help prevent any marking/staining of the finished product. Shorscaff shall not be liable for any loss or damage to the site (including, without limitation, damage to pathways, driveways, lower level roofs, and concreted or paved or grassed areas) unless due to the negligence of Shorscaff.
    • The Client shall ensure that the nominated delivery address is cleared and ready for installation of the Equipment prior to delivery of the Equipment, and that the foundations upon which Shorscaff is to install the Equipment is sufficiently firm and otherwise suitable to safely carry the structure and the load to be put on it without subsidence. The Client will be liable to Shorscaff for any loss, costs or damages which Shorscaff may suffer or incur by reason of the Client’s failure to carry out its obligations hereunder if Shorscaff is unable or unwilling to install the Equipment due to the site not being cleared and ready as a foresaid. Nevertheless, the Client shall be liable to pay the costs on the hire of the Equipment on the terms stated herein.
    • Unless the Client instructs/directs otherwise, Shorscaff shall place the Equipment at the nominated address at the nearest clear area to the roadside. Shorscaff shall not be liable for any damages incurred by the Client or any third party (including damage to property) in following any instructions/directions of the Client to deliver the Equipment elsewhere at the address. In all cases, the Client agrees to indemnify Shorscaff against any claims whatsoever made against Shorscaff that arise out of the placement and/or re-positioning of the Equipment (including but not limited to any re-positioning of scaffolding installed by any other third party for safety requirements).
    • Where the Equipment is not installed by Shorscaff, the Client shall ensure that the Equipment is erected and dismantled by qualified persons. A suitable qualified person shall be the holder of any certificate of competency or license that may be required by any legislation or local regulatory authority for the purpose of the erection or the dismantling of the Equipment.
    • Further to clause 5, where the Client is unable to supply a suitable trained person, Shorscaff is able to offer an inspection service every thirty (30) days to ensure compliance with SafeWork SA requests, which shall be an additional cost and will be charged separately.

 

24. Affixation of Equipment to Land or Buildings
    • If the Equipment or any part thereof is affixed to any land or buildings pursuant to this contract, and the land or buildings are or become the subject of a mortgage or charge whether under the PPSA or otherwise at law, then the Client shall, without first receiving any request from Shorscaff, obtain the written acknowledge of the mortgagee, administrator or liquidator (as the case may be) that:
      • the Equipment or any part thereof is not a fixture for the purposes of the mortgage or charge;
      • that the mortgagee, administrator or liquidator will not make any claim in relation to the Equipment or any part therefore; and
      • that the mortgagee, administrator or liquidator will permit Shorscaff (whether or not there has been any default under the mortgage or charge) to enter upon the land or buildings and to remove the Equipment or part thereof.

 

25. Title to Equipment
    • The Equipment is and will at all times remain the absolute property of Shorscaff.
    • If the Client fails to return the Equipment to Shorscaff then Shorscaff or Shorscaff’s agent may (as the invitee of the Client) enter upon and into land and premises owned, occupied or used by the Client, or any premises where the Equipment is situated and take possession of the Equipment, without being responsible for any damage thereby caused.
    • The Client is not authorised to pledge Shorscaff’s credit for repairs to the Equipment or to create a lien over the Equipment in respect of any repairs.

 

26. Client’s Responsibilities
    • The Client shall:
      • maintain the Equipment as is required by Shorscaff (including, but not limited to, performing regular inspections);
      • notify Shorscaff immediately by telephone of the full circumstances of any mechanical breakdown or accident. The Client is not absolved from the requirements to safeguard the Equipment by giving such notification;
      • satisfy itself at commencement that the Equipment is suitable for its purposes;
      • operate the Equipment safely, strictly in accordance with the law, only for its intended use, and in accordance with any manufacturer’s instruction whether supplied by Shorscaff or posted on the Equipment;
      • ensure that all persons operating or erecting the Equipment are suitably instructed in its safe and proper use and where necessary hold a current Certificate of Competency and/or are fully licensed to operate the Equipment and shall provide evidence of the same to Shorscaff upon request;
      • comply with all work health and safety laws relating to the Equipment and its operation;
      • on termination of the hire, deliver the Equipment complete with all parts and accessories, clean and in good order as delivered, fair wear and tear accepted, to Shorscaff;
      • keep the Equipment in their own possession and control and shall not assign the benefit of the hire contract nor be entitled to lien over the Equipment;
      • not alter or make any additions to the Equipment including but without limitation altering, make any additions to, defacing or erasing any identifying mark, plate or number on or in the Equipment or in any other manner interfere with the Equipment;
      • employ the Equipment solely in its own work and shall not permit the Equipment or any part thereof to be used by any other party for any other work;
      • not exceed the recommended or legal load and capacity limits of the Equipment;
      • not use or carry any illegal, prohibited or dangerous substance in or on the Equipment.
    • Immediately on request by Shorscaff the Client will pay:
      • the new list price of any Equipment that is for whatever reason destroyed, written off or not returned to Shorscaff;
      • all costs incurred in cleaning the Equipment;
      • all costs of repairing any damage caused by the ordinary use of the Equipment up to an amount equal to ten percent (10%) of the new list price of the Equipment;
      • the cost of repairing any damage to the Equipment caused by the negligence of the Client or the Client’s agent;
      • any lost hire fees Shorscaff would have otherwise been entitled to for the Equipment, under this, or any other hire contract;
      • the cost of repairing any damage to the Equipment caused by vandalism, or (in Shorscaff’s reasonable opinion) in any way whatsoever other than by the ordinary use of the Equipment by the Client;
      • the cost of fuels and consumables provided by Shorscaff and used by the Client.