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Terms and Conditions

Our Disclosures:

Our complete terms and conditions are contained below, but some important points for you to know before you become a customer are set out below:

  • We may cancel, at any time before delivery and for whatever reason, an order that we have previously accepted. Where we do so, we will refund you using the original payment method used for the order.
  • If applicable, it is the end user’s responsibility to clarify any discounts or rebates received by the end user,  plan manager or any other service provider that relate to our supply of products;
  • If you are a plan manager or service provider, you are responsible for clarifying any discounts or rebates offered by ILS directly with your client;
  • Where you choose a change of mind return, we may charge a 20% restocking fee;
  • Our liability under these terms is limited to the price paid by you for the products the subject of the relevant claim, and we will not be liable for consequential loss.

Nothing in these terms limit your rights under the Australian Consumer Law.

 

1 Introduction

(a) These terms and conditions (Terms) are between Independent Living Specialists Pty Limited (ABN 78 106 336 958) (we, our or us) and you, the person placing an order for products. If you are purchasing products on behalf of your employer or a business entity, you, in your individual capacity, represent and warrant that you are authorised to act on behalf of your employer or the business entity and to bind the entity and the entity’s personnel to these Terms. 

 

2 Online Accounts

(a) You may purchase products from us without an online account or you may choose to create an online account with us.

(b) You must ensure that any personal information you give to us when creating an account is accurate and up-to-date. All personal information that you give to us will be treated in accordance with our Privacy Policy.

(c) It is your responsibility to keep your account details confidential. You are responsible for all activity on your account, including purchases made using your account details.

 

3 Orders

(a) You accept these Terms by accepting a Quote, placing an order or making part or full payment of the Price.  

(b) If applicable, it is your responsibility to clarify any discounts or rebates directly with your plan manager or service provider. 

(c) If you are a plan manager or service provider, you must clarify any discounts or rebates directly with your client. 

(d) If you place an order for products, you are making an order to purchase the product(s) for the price listed on the Site or in the Quote (including the delivery fees or other applicable charges and taxes). 

(e) We may, at our absolute discretion, accept or reject an order. If we need to reject your order, we will notify you within a reasonable time after your order is placed. Once we accept an order, a binding agreement is formed for the supply of products to you in accordance with these Terms and any accompanying Quote (if applicable). 

(f) It is your responsibility to check the order details, including selected products, delivery details and pricing, before you submit your order. 

(g) We may cancel, at any time before delivery and for whatever reason, an order that we have previously accepted, including where there is a considerable delay in dispatching your order, if for any reason we cannot supply the products you order (for example for an event beyond our reasonable control) or if products ordered were subject to an error on our Site (for example in relation to a description, price or image). We will contact you using the details you provided when you placed your order. 

(h) Services: You may request Services (including maintenance services on the products) and we will set out a description of the Services, and the Services Fee, in the Quote. 

(i) You must not place an order for products unless you are at least 18 years old.

(j) Please be aware that some of the products we sell may not be suitable for children under 18 years old. Please take extra care when ordering products for children under 18 years old.

 

4 Price and payments

(a) You must pay us the purchase price of each product you order, plus any applicable delivery costs as set out on the Site or in any catalogue, and the Services Fee for any Services you request, (the Price) in accordance with this clause. All amounts are stated in Australian dollars and Australian GST (where applicable) will be set out separately.

(b) When purchasing online, you must pay the Price upfront using one of the methods set out on the Site. When not purchasing online, you must pay the Price in accordance with the Quote or as per the trading terms established for your account.

(c) You must not pay, or attempt to pay, the Price by fraudulent or unlawful means. If you make a payment by debit card or credit card, you warrant that you are authorised to use the debit card or credit card to make the payment.

(d) We may offer payment through a third-party provider. You acknowledge and agree that we have no control over the actions of the third-party provider, and your use of the third-party payment method may be subject to additional terms and conditions.

(e) We do not store any credit card details, and all payment information is collected and stored through our third-party payment processor.

(f) Where you order the products for delivery outside Australia, you may need to pay custom charges or taxes in addition to the Price.

(g) We may from time to time issue promotional discount codes for certain products.

(h) To claim the discount, you must enter the promotional discount code at the time of submitting your order.

 

5 Delivery, title and risk

(a) If possible we will deliver the products to the delivery address you provide when making your order. We currently deliver to areas as set out on the Site or otherwise advised to you. If you are not in our delivery area please contact us to discuss delivery options.

(b) We normally dispatch products held in stock within 3 business days of receiving an order and payment terms being met, unless otherwise notified to you. The dispatch of non-stock items including scripted equipment is subject to the delivery time from our suppliers. Any delivery periods are estimates only, based on the information provided by the delivery company.

(c) We deliver the products using a range of delivery methods. You may need to sign for some deliveries. If neither you nor your authorised representative is at the delivery address to accept delivery, you agree that we may leave the products at your premises, or take the products to the nearest post office.

(d) Title to the products will remain with us until you have paid the Price in full for the products. Until title passes, you must not do anything which seeks to create an encumbrance, lien, charge or other interest in or over the products.

(e) Risk in the products will pass to you as soon as they are delivered to the delivery address you provided in your order.

 

6 Return Policy and Australian Consumer Law

(a) We offer exchanges (subject to stock availability) or refunds (subject to the Restocking Fee described below) of products for change of mind where we determine (at our absolute discretion): 

  1. you have provided the proof of purchase and you purchased the products within 7 days prior to the request for an exchange or refund;
  2. the products are in their original condition and have not been used, worn, damaged, tampered with, washed, altered, connected, installed or attempted to be connected or installed;
  3. the products are in their original undamaged packaging with all product tags still intact;
  4. the products are not sale items, special buy products or gift vouchers;
  5. for hygiene reasons, the products are not bath safety products (Examples: commodes, raised toilet seats, shower chairs, cushions and transfer benches); and
  6. the products are not made-to-order products including scripted equipment (examples: scripted wheelchairs, scripted commodes) or made-to-measure equipment such as bespoke recline chairs.

(b) Provided the requirements set out in clauses 6(a)(1)- (a)(6) are met, where you have chosen a refund, we may, at our discretion, charge a 20% restocking fee. In other words, you will be refunded for 80% of the cost of the product.

(c) We will not cover the costs of delivery or re-delivery for a change of mind return. You must cover these yourself.

Australian Consumer Law

(d) Nothing in these Terms attempts to modify or exclude the conditions, warranties and undertakings, and other legal rights, under the Australian Consumer Law (Consumer Law Rights). In Australia, our goods and services come with guarantees which cannot be excluded under the Australian Consumer Law. You are entitled to a replacement or refund for a major failure and compensation for any other reasonably foreseeable loss or damage. You are also entitled to have the goods repaired or replaced if the goods fail to be of acceptable quality and the failure does not amount to a major failure. Any and all other warranties or conditions which are not guaranteed by the Australian Consumer Law are expressly excluded where permitted, except to the extent such warranties and conditions are fully expressed in these Terms.

(e) Where you return products to us to seek an Australian Consumer Law remedy, you will need to cover any associated costs (for example delivery costs) of you returning the products to us.

(f) Where your claim is a valid claim under the Australian Consumer Law, we will refund your return delivery costs and, depending on the failure, either dispatch a new or repaired replacement product or refund you the Price of the relevant product. Please contact us for further information.

 

7 Limitations

(a) Despite anything to the contrary, but subject to your Consumer Law Rights, to the maximum extent permitted by law:

  1. neither Party will be liable for Consequential Loss;
  2. each Party’s liability for any Liability under these Terms will be reduced proportionately to the extent the relevant Liability was caused or contributed to by the acts or omissions of the other Party, including any failure by that Party to mitigate its losses; and
  3. our aggregate liability for any Liability arising from or in connection with the Terms (including the products and/or the subject matter of the Terms) will be limited to, and must not exceed, the portion of the Price paid by you to us for the products the subject of the relevant claim.

(b) You agree that any information contained on the Site and any materials provided with our products (collectively Materials) are provided for general information purposes only and do not take into account your personal circumstances. The Materials are not intended to be advice and they are not intended to be a substitute for professional medical advice. Our products are not intended to diagnose, treat, cure, or prevent any disease or condition and you are solely responsible for determining the suitability of our products for your circumstances and your reliance on the Materials is at your own risk. If you have an existing health condition, we recommend you consult a medical professional before using our products. Use of our products and/or the Materials does not establish a doctor-patient relationship.

 

8 Use of the Site (this clause applies if you are viewing these Terms on the Site)

(a) When using the Site, you must not do or attempt to do anything that is unlawful or inappropriate, including:

  1. anything that would constitute a breach of an individual’s privacy (including uploading private or personal information without an individual’s consent) or any other legal rights;
  2. using the Site to defame, harass, threaten, menace or offend any person;
  3. using the Site for unlawful purposes;
  4. interfering with any user of the Site;
  5. tampering with or modifying the Site (including by transmitting viruses and using trojan horses);
  6. using the Site to send unsolicited electronic messages;
  7. using data mining, robots, screen scraping or similar data gathering and extraction tools on the Site; or
  8. facilitating or assisting a third party to do any of the above acts.

 

9 General

(a) Amendment: We may, at any time and at our discretion, vary these Terms by publishing varied terms on the Site. Prior to placing an order, we recommend you carefully read the terms that are in effect at that time to ensure you understand and agree to them. For any order that has been accepted by us, the terms and conditions that apply will be the ones that were in effect (and which you agreed to) when you placed your order. 

(b) Assignment: Subject to clause 10(c), a Party must not assign or deal with the whole or any part of its rights or obligations under these Terms without the prior written consent of the other Party (such consent is not to be unreasonably withheld). 

(c) Assignment of Debt: You agree that we may assign or transfer any debt owed by you to us, arising under or in connection with these Terms, to a debt collector, debt collection agency, or other third party. 

(d) Disputes: A Party may not commence court proceedings relating to a dispute without first meeting with the other Party to seek (in good faith) to resolve the dispute, failing which the Parties agree to engage a mediator to attempt to resolve the dispute. The costs of the mediation will be shared equally between the Parties. Nothing in this clause will operate to prevent a Party from seeking urgent injunctive or equitable relief from a court of appropriate jurisdiction.  

(e) Force Majeure: Neither Party will be liable for any delay or failure to perform their respective obligations under these Terms if such delay or failure is caused or contributed to by a Force Majeure Event. This clause will not apply to a Party’s obligation to pay any amount that is due and payable to the other Party under these Terms. 

(f) Governing law: These Terms are governed by the laws of New South Wales. Each Party irrevocably and unconditionally submits to the exclusive jurisdiction of the courts operating in New South Wales and any courts entitled to hear appeals from those courts and waives any right to object to proceedings being brought in those courts.  

(g) Notices: Any notice given under these Terms must be in writing addressed to us at the details set out below or to you at the details provided when you submitted your order or in your account. Any notice may be sent by standard post or email, and will be deemed to have been served on the expiry of 48 hours in the case of post, or at the time of transmission in the case of transmission by email. 

(h) Relationship of Parties: These Terms are not intended to create a partnership, joint venture, employment or agency relationship between the Parties. 

(i) Third party sites: The Site may contain links to websites operated by third parties. Unless we tell you otherwise, we do not control, endorse or approve, and are not responsible for, the content on those websites.  

 

10 Definitions

(a) Consequential Loss means, whether under statute, contract, equity, tort (including negligence), indemnity or otherwise; any loss or damage that cannot be considered to arise according to the usual course of things from the relevant breach, act or omission, whether or not such loss or damage may reasonably be supposed to have been in the contemplation of the Parties at the time they entered into these Terms as the probably results of the relevant breach, act or omission, and/or, any real or anticipated loss of profit, loss of benefit, loss of revenue, loss of business, loss of goodwill loss of opportunity, loss of savings, loss of reputation, loss of use and/or loss or corruption of data. The Parties agree that your obligation to pay us the Price under these Terms will not constitute “Consequential Loss”.  

(b) Force Majeure Event means any event or circumstance which is beyond a Party’s reasonable control including but not limited to, acts of God including fire, hurricane, typhoon, earthquake, landslide, tsunami, mudslide or other catastrophic natural disaster, civil riot, civil rebellion, revolution, terrorism, insurrection, militarily usurped power, act of sabotage, act of a public enemy, war (whether declared or not) or other like hostilities, ionising radiation, contamination by radioactivity, nuclear, chemical or biological contamination, any widespread illness, quarantine or government sanctioned ordinance or shutdown, pandemic (including COVID-19 and any variations or mutations to this disease or illness) or epidemic. 

(c) Liability means any expense, cost, liability, loss, damage, claim, notice, entitlement, investigation, demand, proceeding or judgement (whether under statute, contract, equity, tort (including negligence), indemnity or otherwise), howsoever arising, whether direct or indirect and/or whether present, unascertained, future or contingent and whether involving a third party or a party to these Terms or otherwise. 

(d) Services means the services that we agree to provide to you (including maintenance services) as set out in a Quote, as adjusted in accordance with these Terms. 

(e) Services Fee means the services fee as set out in the Quote, if any. 

(f) Site means our website, available at https://ilsau.com.au/ 

(g) Quote (if applicable) means the quote we provide to you setting out the products, Services, and accompanying fees to provide these products and Services. 

 

For any questions and notices, please contact us at:

Independent Living Specialists Pty Limited (ABN 78 106 336 958)
Email: [email protected]
Last update: 13 June 2023
© LegalVision ILP Pty Ltd

Our Disclosures:

Our complete terms and conditions are contained below, but some important points for you to know before you hire our equipment are set out below:

  • You indemnify us for losses connected with damage to the Equipment, and losses we suffer when repossessing the Equipment;
  • The Hire Period is at least 2 weeks (unless otherwise agreed between the Parties);
  • If applicable, it is your responsibility to clarify any discounts or rebates directly with your plan manager or service provider;
  • If you are a plan manager or service provider, you must clarify any discounts or rebates directly with your client;
  • Our liability under these terms is limited to the recommended retail price of the Equipment the subject of the relevant claim, and we will not be liable for consequential loss.

Nothing in these terms limit your rights under the Australian Consumer Law.

 

1. Introduction

1.1 These terms and conditions (Terms) are between Independent Living Specialists Pty Limited (ABN 78 106 336 958) (we, our or us) and you, the person or entity hiring Equipment from us. If you are hiring Equipment on behalf of your employer or a business entity, you, in your individual capacity, represent and warrant that you are authorised to act on behalf of your employer or the business entity and to bind the entity and the entity’s personnel to these Terms.

 

2. Online Accounts

2.1 You may hire Equipment from us without an online account or you may choose to create an online account with us.

2.2 You must ensure that any personal information you give to us when creating an account is accurate and up-to-date. All personal information that you give to us will be treated in accordance with our Privacy Policy.

2.3 It is your responsibility to keep your account details confidential. You are responsible for all activity on your account, including payments made using your account details.

 

3. Acceptance, Term and Hire Period

3.1 You accept these Terms by making part or full payment of the Hire Fee.

3.2 Subject to clause 17.1, you agree to hire the Equipment for the Hire Period.

3.3 These Terms will continue for the Term.

 

4. Our obligations

4.1 In consideration of you paying the Hire Fee and you complying with these Terms, we agree to provide the Equipment to you for the Hire Period in accordance with these Terms.

4.2 We will have no obligation to hire out the Equipment to you until we have received the first payment of the Hire Fee.

 

5. Variations

5.1 All variations to the Equipment to be supplied must be agreed in writing between the Parties and will be priced in accordance with any schedule of rates provided by us, or otherwise as reasonably agreed between the Parties. If we consider that any instruction or direction from you constitutes a variation to the scope of our obligations under these Terms, then we will not be obliged to comply with such instruction or direction unless agreed in accordance with this clause.

 

6. Your obligations and warranties

6.1 You agree:

(a) that it is your responsibility to clarify any discounts or rebates directly with your plan manager or service provider, if applicable;

(b) that, if you are a plan manager or service provider, you must clarify any discounts or rebates directly with your client;

(c) to comply with these Terms, any instructions for use Manual, our reasonable requests or requirements (including safety procedures and policies), and all applicable laws;

(d) to provide all assistance, information, and all things reasonably necessary to enable us to comply with our obligations and rights under these Terms and at law.

6.2 You acknowledge and agree that if there is a discrepancy between the terms and conditions in these Terms and the Manual, the terms and conditions of these Terms will prevail.

6.3 You must not accept these Terms and/or hire Equipment unless you are at least 18 years old.

6.4 Please be aware that some of the Equipment we offer may not be suitable for children under 18 years old. Please take extra care when hiring Equipment for children under 18 years old.

 

7. Payment

7.1 In consideration for us supplying the Equipment, you agree to pay us the Fees, and any other amount payable to us under these Terms, in accordance with these Terms.

7.2 Unless otherwise agreed between the Parties:

(a) we will invoice you for the Hire Fee at the intervals as set out in the Quote or on the Site throughout the Hire Period; and

(b) you agree to pay the amount in the invoice (and any other amount due and payable to us under these Terms), using the payment method and by the due date set out in the invoice.

7.3 When applicable, GST is payable on the Fees and will be clearly shown on our invoices. You agree to pay us an amount equivalent to the GST imposed on these charges.

7.4 If any payment has not been made in accordance with this clause 7, we may (at our absolute discretion and without prejudice to any of our rights or remedies under these Terms or at law):

(a) after a period of 5 Business Days, cease providing the Equipment and enter any premises where the Equipment is located to recover or repossess the Equipment (and you agree to provide any access, items and consents required to enable us to do so), and recover, as a debt due and immediately payable from you, our additional costs of doing so (including all recovery costs);

(b) charge interest at a rate equal to the Reserve Bank of Australia’s cash rate from time to time plus 2% per annum, calculated daily and compounding monthly, on any such amounts unpaid after the due date for payment in accordance with this clause 7.

 

8. Collection, delivery and return of Equipment

8.1 You agree to pay for the reasonable costs of delivery or collection of the Equipment as set out in the Quote or on the Site, or otherwise notified to you, if any. You agree that if you have hired more than one item of Equipment, you may return different items at different stages, but that an additional collection fee may be charged.

8.2 Unless otherwise agreed between the Parties we will invoice you for the delivery and collection costs (if any) prior to the start of the Hire Period and you must pay the delivery costs by the date set out in the invoice and prior to the start of the Hire Period.

8.3 Subject to your compliance with clause 8.2, we agree to use our reasonable endeavours to deliver the Equipment to the delivery location by the delivery time agreed between the Parties as set out in the Quote or on the Site.

8.4 If you have hired the Equipment for at least 2 weeks, and have paid the Hire Fee upfront for a Hire Period exceeding 2 weeks, you may give notice in accordance with clause 17.1 that you wish to terminate the Hire Period early. Where the Equipment is returned to us, or collected by us, in accordance with this clause 8 we will give you a pro-rata refund (on a weekly basis) of the unused portion of the Hire Fee.

8.5 If the Parties have agreed that we will collect the Equipment from you at the end of the Hire Period (and you have paid the collection fee upfront in accordance with clause 8.2):

(a) at the expiry of the Hire Period, you agree to make the Equipment available for collection by us in the condition in which you received it, at the return location and by the earlier of the return time agreed between the Parties as set out in the Quote or on the Site or the date of termination of these Terms as set out in clause 17 (Collection Time); and

(b) you agree that if we arrive at the agreed location for collection at the Collection Time and the Equipment is not immediately available for our collection as set out in clause 8.5(a), we will continue to charge you the Hire Fee each week until the Equipment is available for collection by us.

8.6 This clause 8 will survive termination of these Terms.

 

9. Warranties and Representations

9.1 You represent, warrant and agree that:

(a) all information and documentation that you provide to us in connection with these Terms is true, correct and complete;

(b) the Equipment may only be operated by you or someone who knows how to operate the Equipment;

(c) you will report any Accident which occurs during the Hire Period to us as soon as possible after it occurs;

(d) you (and to the extent applicable, your Personnel) will provide us with all documentation, information, instructions, cooperation and access reasonably necessary to enable us to supply the Equipment;

(e) you will not use the Equipment, or allow the Equipment to be used, in breach of any laws or the Manual;

(f) you will keep the Equipment under your custody and control at all times, and you will not sublease, rent, sell, or otherwise transfer the Equipment to any other person; and

(g) you will provide us and our Personnel with sufficient access, free from harm or risk to health or safety, to any premises where the Equipment is located, and any other premises reasonably necessary to enable us to provide the Equipment including to exercise our rights under clauses 6 and 11.2, at the dates and times during Business Hours that we may reasonably request.

 

10. Maintenance

10.1 During the Term, in addition to and without limiting any other obligation under these Terms, you agree to:

(a) maintain the Equipment in accordance with any instructions for use provided with the Equipment;

(b) only allow our Personnel to service or repair the Equipment, unless otherwise agreed to by us;

(c) contact us immediately if there are any technical or mechanical issues with the Equipment;

(d) protect and keep the Equipment in the condition in which you received it (including being in good working order and condition), subject to any fair wear or tear; and

(e) prevent the Equipment from being subject to any loss, theft, damage, vandalism or destruction and notify us immediately if the Equipment is stolen, lost, destroyed, damaged or involved in an Accident.

 

11. Servicing and Repairs

11.1 You agree that you are responsible for the costs of any repair or replacement of the Equipment that is necessary as result of loss, theft, damage, vandalism, misuse or neglect to the Equipment during the Hire Period. Where we undertake the repairs or replacement on your behalf, you agree to pay us the costs of the repairs or replacement, as a debt due and immediately payable.

11.2 We may agree to undertake a general service check of the Equipment, at the times and dates as communicated by us to you, and you agree to do all things necessary to allow us to fulfil our obligations in this clause 11.2. We may, in our absolute discretion, provide you with the use of replacement equipment during any general service check.

 

12. Title and Risk

12.1 Risk in the Equipment will pass to you when we have delivered the Equipment to the location agreed between the Parties as set out in the Quote or on the Site, or when you collect the Equipment from us.

12.2 You agree that once the Equipment has been delivered to the delivery location (as applicable and as agreed between the Parties), you will be solely responsible for the Equipment until it is collected by, or returned to, us and it is in our full custody and control.

12.3 Title in the Equipment will at all times remain with us, and you take the Equipment as a bare bailee only.

 

13. Security Interest

13.1 You acknowledge and agree that:

(a) these Terms are a ‘security agreement’ under the PPSA;

(b) this clause 13 creates a security interest in the Equipment, and any proceeds from any sale or disposal of the Equipment, as security for your obligations to us;

(c) we are a secured party in relation to the Equipment and any proceeds in respect of any sale or disposal of the Equipment, and we are entitled to register our interest on the relevant register as either (at our discretion) a security interest, and if applicable, a ‘purchase money security interest’, and you must do all things necessary to assist us in effecting the registration;

(d) you must (at your cost), where we request, take all steps that we consider necessary or desirable to ensure our security interest in the Equipment and the proceeds is enforceable, and to perfect, or better secure our position under these Terms, or ensure our priority over all other security interests.

13.2 To the extent the law permits, you waive your right to receive any notice (including notice of a verification statement) that is required by the PPSA, including but not limited to notices under sections 157, 95, 118, 121, 130, 132 or 135. However, this does not prevent us from giving a notice under the PPSA.

13.3 To the extent permitted by law, unless we otherwise notify you, sections 95, 96, 121(4), 125, 130, 132(3)(d), 132(4), 142 and 143 of the PPSA will not apply to enforcement of our security interest.

13.4 If there is any inconsistency between our rights under this clause 13 and your rights under Chapter 4 of the PPSA, this clause prevails.

13.5 You must not disclose any information of the kind referred to in section 275 of the PPSA, to the extent permitted under that section.

13.6 Nothing in this clause 13 is intended as an agreement to subordinate a security interest arising under these Terms and conditions in favour of any person under section 61 of the PPSA.

13.7 In this clause 13 a ‘security interest’ includes any form or lien, encumbrance or a security interest under the PPSA.

13.8 In this clause 13 terms used in this clause but not defined have the same meaning as in the PPSA.

13.9 This clause 13 will survive termination of these Terms.

 

14. Australian Consumer Law

14.1 Certain legislation, including the Australian Consumer Law, and similar consumer protection laws and regulations, may confer you with rights, warranties, guarantees and remedies relating to the Equipment by us to you which cannot be excluded, restricted or modified (Consumer Law Rights). To the extent that you maintain Consumer Law Rights, nothing in these Terms excludes those Consumer Law Rights.

14.2 Subject to your Consumer Law Rights, we exclude all warranties, and all material, work and services, including that the Equipment is provided to you without warranties of any kind, either express or implied, whether in statute, at law or on any other basis, except where expressly set out in these Terms.

14.3 This clause 14 will survive the termination or expiry of these Terms.

 

15. Limitation on Liability

15.1 Despite anything to the contrary but subject to your Consumer Law Rights, to the maximum extent permitted by law:

(a) neither Party will be liable for Consequential Loss;

(b) a Party’s liability for any Liability under these Terms will be reduced proportionately to the extent the relevant Liability was caused or contributed to by the acts or omissions of the other Party (or any of its Personnel), including any failure by that other Party to mitigate its loss; and

(c) in respect of any failure by us to comply with the relevant Consumer Law Rights, our Liability is limited (at our discretion) to:

(1) replacing the Equipment or the supply of equivalent Equipment, or the payment of the cost of replacing the Equipment or of supplying equivalent Equipment; and/or

(2) the repair of the Equipment, or the payment of the cost of having the Equipment repaired.

(d) our aggregate liability for any Liability arising from or in connection with these Terms will be limited to the recommended retail price of the relevant Equipment to which the Liability relates.

15.2 This clause 15 will survive the termination or expiry of these Terms.

 

16. Indemnity

16.1 To the maximum extent permitted by law, you are liable for and you and agree to indemnify us and hold us harmless in respect of any Liability which we may suffer, incur or are otherwise liable for as a result of, or in connection with:

(a) any property loss or damage, death or personal injury, arising from or in connection with your use of the Equipment;

(b) any loss (including theft) of, or damage to, the Equipment when you are responsible for the risk in the Equipment in accordance with clause 12;

(c) any failure to make the equipment available for collection as set out in clause 8 in the condition in which you received it; and

(d) all Liabilities suffered or incurred by us in repossessing or recovering the Equipment in accordance with these Terms.

16.2 This clause 16 will survive the termination or expiry of these Terms.

 

17. Termination

17.1 After the two week minimum Hire Period, either Party may terminate these Terms at any time, by giving 2 Business Days’ notice in writing to the other Party. When you give us notice in accordance with this clause, we will give you a termination reference number.

17.2 These Terms will terminate immediately upon written notice by a Party (Non-Defaulting Party) if the other Party (Defaulting Party) breaches a material term of these Terms and that breach has not been remedied within 5 Business Days of the Defaulting Party being notified of the breach by the Non-Defaulting Party.

17.3 Upon expiry or termination of these Terms:

(a) we will immediately cease supplying the Equipment;

(b) you are to pay for any Fees due and payable prior to termination, and all other amounts due and payable under these Terms;

(c) by us pursuant to clause 17.2 you also agree to pay our additional costs, reasonably incurred, and which arise directly from such termination (including recovery fees); and

(d) you agree to grant us such rights of access, in accordance with clause 9.1(g) to any premises where the Equipment is located to allow us (or our Personnel) to immediately recover or repossess the Equipment.

17.4 Termination of these Terms will not affect any rights or liabilities that a Party has accrued under it.

17.5 This clause 17 will survive the termination or expiry of these Terms.

 

18. Use of the Site (this clause applies if you are viewing these Terms on the Site)

18.1 When using the Site, you must not do or attempt to do anything that is unlawful or inappropriate, including:

(a) anything that would constitute a breach of an individual’s privacy (including uploading private or personal information without an individual’s consent) or any other legal rights;

(b) using the Site to defame, harass, threaten, menace or offend any person;

(c) using the Site for unlawful purposes;

(d) interfering with any user of the Site;

(e) tampering with or modifying the Site (including by transmitting viruses and using trojan horses);

(f) using the Site to send unsolicited electronic messages;

(g) using data mining, robots, screen scraping or similar data gathering and extraction tools on the Site; or

(h) facilitating or assisting a third party to do any of the above acts.

 

19. General

19.1 Amendment: Subject to clause 5, these Terms may only be amended by written instrument executed by the Parties.

19.2 Assignment: Subject to clause 19.3, a Party must not assign or deal with the whole or any part of its rights or obligations under these Terms without the prior written consent of the other Party (such consent is not to be unreasonably withheld).

19.3 Assignment of Debt: You agree that we may assign or transfer any debt owed by you to us, arising under or in connection with these Terms, to a debt collector, debt collection agency, or other third party.

19.4 Disputes: A Party may not commence court proceedings relating to a dispute without first meeting with the other Party to seek (in good faith) to resolve the dispute, failing which the Parties agree to engage a mediator to attempt to resolve the dispute. The costs of the mediation will be shared equally between the Parties. Nothing in this clause will operate to prevent a Party from seeking urgent injunctive or equitable relief from a court of appropriate jurisdiction.

19.5 Force Majeure: Neither Party will be liable for any delay or failure to perform their respective obligations under these Terms if such delay or failure is caused or contributed to by a Force Majeure Event. This clause will not apply to a Party’s obligation to pay any amount that is due and payable to the other Party under these Terms.

19.6 Governing law: These Terms are governed by the laws of New South Wales. Each Party irrevocably and unconditionally submits to the exclusive jurisdiction of the courts operating in New South Wales and any courts entitled to hear appeals from those courts and waives any right to object to proceedings being brought in those courts.

19.7 Notices: Any notice given under these Terms must be in writing addressed to the addresses set out in these Terms, or the relevant address last notified by the recipient to the Parties in accordance with this clause. Any notice may be sent by standard post or email, and will be deemed to have been served on the expiry of 48 hours in the case of post, or at the time of transmission in the case of transmission by email.

19.8 Relationship of Parties: These Terms are not intended to create a partnership, joint venture, employment or agency relationship between the Parties.

19.9 Third party sites: The Site may contain links to websites operated by third parties. Unless we tell you otherwise, we do not control, endorse or approve, and are not responsible for, the content on those websites.

 

20. Definitions

In these Terms, unless the context otherwise requires, capitalised terms have the meanings given to them in the Quote, and:

Accident means any accident or incident caused by or involving the Equipment, including but not limited to any incident or occurrence that results in the Equipment being damaged, lost or destroyed or any other property, thing, person or animal being injured, killed, damaged, lost or destroyed (as applicable).

ACL or Australian Consumer Law means the Australian consumer laws set out in Schedule 2 of the Competition and Consumer Act 2010 (Cth), as amended, from time to time.

Agreement means these terms and conditions and any documents, attached to, or referred to, in it.

Business Days means a day on which banks are open for general banking business in New South Wales, excluding Saturdays, Sundays and public holidays.

Business Hours means 9am – 5pm on Business Days.

Consequential Loss means, whether under statute, contract, equity, tort (including negligence), indemnity or otherwise; any loss or damage that cannot be considered to arise according to the usual course of things from the relevant breach, act or omission, whether or not such loss or damage may reasonably be supposed to have been in the contemplation of the Parties at the time they entered into these Terms as the probably results of the relevant breach, act or omission, and/or, any real or anticipated loss of profit, loss of benefit, loss of revenue, loss of business, loss of goodwill loss of opportunity, loss of savings, loss of reputation, loss of use and/or loss or corruption of data. The Parties agree that your obligation to pay us any fees under these Terms will not constitute “Consequential Loss”.

Consumer Law Rights has the meaning given in clause 14.1.

Dispute has the meaning given in clause 19.4.

Equipment means the equipment and any accessories the subject of these Terms, as particularised in the Quote or on the Site.

Fee means the Hire Fee.

Force Majeure Event means any event or circumstance which is beyond a Party’s reasonable control including but not limited to, acts of God including fire, hurricane, typhoon, earthquake, landslide, tsunami, mudslide or other catastrophic natural disaster, civil riot, civil rebellion, revolution, terrorism, insurrection, militarily usurped power, act of sabotage, act of a public enemy, war (whether declared or not) or other like hostilities, ionising radiation, contamination by radioactivity, nuclear, chemical or biological contamination, any widespread illness, quarantine or government sanctioned ordinance or shutdown, pandemic (including COVID-19 and any variations or mutations to this disease or illness) or epidemic.

Hire Period means the hire period as set out in the Quote or on the Site or such shorter period where these Terms are terminated in accordance with clause 17.1. The Hire Period is at least two weeks, unless otherwise agreed between the Parties.

Hire Fee means the daily or weekly hire fee as set out in the Quote or on the Site, and includes a sanitization fee.

Liability means any expense, cost, liability, loss, damage, claim, notice, entitlement, investigation, demand, proceeding or judgment (whether under statute, contract, equity, tort (including negligence), indemnity or otherwise), howsoever arising, whether direct or indirect and/or whether present, unascertained, future or contingent and whether involving a third party or a Party to these Terms or otherwise.

Manual means any manual, provided by us to you, as to the operation, use, restrictions, guidelines or safety instructions for the Equipment.

Personnel means, in respect of a Party, any of its employees, consultants, suppliers, subcontractors or agents.

PPSA means the Personal Property Securities Act 2009 (Cth).

Site means our website, available at https://ilsau.com.au/

Term means the term of these Terms, commencing on the date they are accepted and ending on the later of the date the Equipment is collected by us in accordance with these Terms or the expiry of the Hire Period, unless these Terms are terminated earlier in accordance with its terms.

Quote means the quote we may provide to you setting out the Equipment and the Hire Fee.

For any questions and notices, please contact us at:

Independent Living Specialists Pty Limited (ABN 78 106 336 958)
Email: [email protected]
Last update: 13 June 2023
© LegalVision ILP Pty Ltd

 

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