Term Residential Payment Plan
“PPSA” means the Personal Property Securities Act 2009 (Cth);
“PPSR” means the Personal Property Security Register;
“PPS Regulations” means the Personal Property Securities Regulations 2010 (Cth);
“Purchase Money Security Interest” that has the meaning prescribed to it in the PPSA;
“Security Interest” includes any security interest under the PPSA;
On or about the Commencement Date the Seller shall deliver and install the Equipment at the location shown in the schedule to this Agreement and the Purchaser shall take possession of the Equipment. The Purchaser must make any arrangements necessary to enable the Purchaser to obtain delivery of the Equipment. The Seller will not be liable for any delay in obtaining, or refusal of, delivery or for any damage incurred by the Equipment in the course of delivery.
4. Purchase Price:
The Purchaser shall pay the Instalment Payments shown in the schedule to this Agreement (“Instalment Payments”), the first of which shall be due on the Commencement Date, and subsequent Instalment Payments shall be due on the same day of each third month thereafter. Instalment Payments shall be due whether or not the Purchaser has received any notice that such payments are due. All Instalment Payments shall be paid to the Seller or as otherwise directed by the Seller in writing. The Purchaser shall notify the Seller immediately in writing of any change in the Purchaser's address. The Purchaser is not entitled to withhold any Instalment Payments or make any deductions from any Instalment Payment where the Purchaser claims to have a right of set off or counter claim of any nature. The Purchaser further agrees to (a) pay on demand interest at a rate equal to the aggregate of 3% p.a. plus the ANZ 90 Day Bank Bill Swap Reference Rate as last published in the Australian Financial Review (“the Interest Rate”) on all amounts payable under this Agreement more than seven days overdue; (b) to pay to the Seller on demand any expenses which the Seller may incur by reason of the Seller attempting to retake possession of the Equipment in accordance with this Agreement or in attempting to enforce this Agreement.
5. Retention of Security Interest:
Until all Instalment Payments have been paid, the Seller retains full title in the Equipment and retains a Security Interest in the Equipment and, if the Purchaser sells or otherwise disposes of the Equipment in violation of the terms of this Agreement, in the proceeds of such sale disposition. Upon payment of the Instalment Payments in full the Purchaser shall obtain full title to the Equipment.
The Purchaser covenants that he or she shall, until payment of all Instalment Payments have been made to the Seller, keep the Equipment in good condition and free from liens and other Security Interest, or not use the Equipment illegally or dispose of or encumber the Equipment without the prior written consent of the Seller.
7. Service of Equipment:
The Purchaser agrees that the Seller, or its nominated service agent, shall have the exclusive right to service and maintain the Equipment. All costs of servicing of the Equipment by the Seller, including filter replacement, are included in the Instalment Payments. The Purchaser covenants with the Seller that no other party shall be permitted to service or maintain the Equipment including replacement of any filter other than the Seller or its nominated service agent.
Until all of the Instalment Payments are made by the Purchaser to the Seller the Purchaser agrees to keep the Equipment comprehensively insured against fire accident and theft with a reputable insurer for its full insurable value and to keep the Seller insured against all liability howsoever arising in respect thereof. The Purchaser agrees to forward all insurance policies and to pay promptly all premiums and maintain such policy throughout term of the Agreement. The Purchaser will pay any insurance excess on any claim.
9. Security Interest:
(a)The Purchaser hereby acknowledges that this Agreement constitutes a security agreement which creates a Security Interest in favour of the Seller and in all Equipment sold by the Seller to secure the payment from time to time for Equipment. The Purchaser agrees to grant to the Seller a Purchase Money Security Interest.
(i)Until such time as payment in full has been received by the Seller from the Purchaser in respect to this Agreement, the Purchaser covenants to the Seller not to create, cause or permit to exist any other Security Interest over any Equipment the subject of this Agreement without obtaining the prior written consent of the Seller;
(ii)The Purchaser covenants to the Seller that it shall sign anything and do anything the Seller requires to further or more effectively secure the Seller’s rights over the applicable Equipment or under this Agreement. This includes anything the Seller requires in order for it to:
(A)register and maintain (including renew before expiry) one or more financing statements in relation to any Security Interest in the relevant Equipment created by this Agreement;
(B)obtain possession or control of any Equipment for the purposes of perfecting any Security Interest in that property by possession or control for the purposes of the PPSA.
(iii)The Purchaser waives its rights to receive a verification statement in respect of any financing statement or financing change statement registered by or on behalf of the Seller under the PPSA to the extent permitted by the PPSA and agrees to that as between the Seller and the Purchaser, to the extent permitted by the PPSA, the Purchaser will have no rights under (or by reference to) sections 95, 96, 117, 118, 120, 121(4), 123, 125, 126, 128, 129, 130, 132(3)(d), 132(4), 134(1), 135, 142 and 143 of the PPSA.
10. Limit of Liability:
To the fullest extent permitted by law, the Seller gives no warranty and makes no express or implied representation as to the condition, quality, suitability or fitness of the Equipment for the Purchaser's purposes or as to the correspondence of the Equipment to any description of it. If the Seller should be liable for a breach of this Agreement or a breach of a guarantee, condition or warranty implied into this contract by the Competition and Consumer Act 2010, or by the provisions implying conditions or warranties which can not be excluded or modified of any other legislation applicable to this transaction , the Seller's liability shall, to the extent permitted by law, be limited to any one or more of the following as it in its sole discretion considers appropriate: in the case of the Equipment:
a) replacement of the Equipment;
b) the supply of equivalent Equipment;
c) payment of the cost of replacing the Equipment;
d) payment of the cost of acquiring equivalent equipment;
e) the repair of the Equipment; or
f) the payment of the cost of having the Equipment repaired; and in the case of services supplied under this Agreement:
g) the supplying of such services again; or
h) the payment of the cost of having such services supplied again. Subject to the foregoing, in no event will the Seller be liable (whether before or after expiry or termination of this Agreement) for any loss or damage which the Purchaser suffers arising from, or caused or contributed by, the Seller’s negligence or the negligence of the Seller’s servants or agents.
Nor will the Seller be liable for special, indirect or consequential loss or damage as a result of a breach by the Seller of this Agreement including but not limited to loss of profits or revenue, the costs arising from the loss of use of the Equipment and the costs of any substitute equipment which the Purchaser acquires.
If during this Agreement
(a) the Seller ascertains that the Purchaser has made a false statement in relation to this Agreement;
(b) the Purchaser does not pay any payment in accordance with this Agreement within seven days of the applicable due date thereof;
(c) the Purchaser shall commit any breach of the terms of this Agreement and fail to rectify same within 14 days after notice by the Seller to do so;
(d) the Purchaser shall commit or suffer an act of bankruptcy or being a company shall without the written consent of Seller go into liquidation, administration or receivership then in each case the Seller can treat this Agreement as fundamentally breached and all Instalment Payments over the balance of the Instalment Term shall become due and payable; and (1) the Seller shall have the right to obtain judgement the amount of any unpaid Instalment Payments under the Agreement plus interest at the Interest Rate; and (2) enter the Premises of the Purchaser and take possession of the Equipment and take immediate possession of the Equipment where ever found and to sell or otherwise to dispose of the Equipment.
The Seller may elect at any time to waive its rights in respect to any breach or repudiation by the Purchaser but no such waiver in respect of any breach or act of repudiation shall affect the Sellers’ rights in respect of any further, other, continuing or recurring breach or act of repudiation.
In the event that any provision (or part thereof) contained in this Agreement is rendered void, invalid, or unenforceable, then such provision or part thereof shall be severed from this Agreement without affecting the remaining provisions hereof
(a) The Seller may, without prior notice to the Purchaser, but subject always to the rights of the Purchaser hereunder, sell or assign, either absolutely or by way of security, its rights or interests in this Agreement.
(b) The Purchaser shall not assign this Agreement without the consent of the Seller.
15. Trust Warranty:
The Purchaser warrants to the Seller that it has not executed this Agreement in its capacity as Trustee of a trust.
16. Time of the essence:
In respect of any provision herein requiring the Purchaser to act within a stipulated time or address any obligation owed to the Seller, time is of the essence.
17. Blanks and corrections:
The Purchaser hereby irrevocably authorises the Seller to complete any blank spaces appearing in the schedule and in particular to insert the Commencement Date and the serial numbers and other identification data of the Equipment.
Any notice to be given by the Seller or its agent, shall without prejudice to any other method of giving the same, be deemed to have been given if posted to the Purchaser’s address as set out in the schedule (or at such other address notified in writing by the Purchaser). Any such notice or demand shall be deemed to have been received on the second business day following such posting.
The Purchaser agrees to use, operate and possess the Equipment at the Purchaser’s risk. The Purchaser agrees that the Seller will have no responsibility or liability for any loss or damage to any property of the Purchaser including without limitation any damage caused or arising from removal, or repossession, of the Equipment from the installation location. To the full extent permitted by law the Purchaser releases and discharges the Seller and its agents and employees from: (a) all claims and demands of the Purchaser; and (b) any loss or damages whatsoever and whenever caused to the Purchaser or his or her invitees; arising directly or indirectly from or incidental to a breakdown of or defect in the Equipment or any accident to or involving the Equipment or its use, operation, repair, maintenance or storage or which may otherwise be suffered or sustained near the Equipment.
This instrument constitutes the entire Agreement between the Seller and the Purchaser and it shall not be amended, altered or changed except by written notice as described in this Agreement. If more than one Purchaser is named in this Agreement the liability of each shall be joint and several. This Agreement shall bind the Purchaser, its successors, executors and assigns and shall enure to the benefit of the Seller, its successors and assigns. This Agreement shall be construed in accordance with the law of New South Wales and the law of New South Wales will be the proper law of the contract. The parties submit to the non-exclusive jurisdiction of the courts of New South Wales and any courts which may hear appeals therefrom. The Purchaser acknowledges that no representations or warranties have been given by the Seller other than as appear in this Agreement. The Purchaser represents and warrants that all credit and financial information submitted to the Seller herewith or at anytime is true and correct. The Seller’s rights under this Agreement may be exercised by its nominees. The Purchaser has no authority to involve the Seller in liability or create any lien over the Equipment for repairs or otherwise.
The Seller is irrevocably authorised, in its absolute discretion, to
(a) use the Purchaser's name and to act on the Purchaser's behalf in exercising any rights or instituting any actions or demands which it thinks desirable;
(b) enter any premises where the Seller believes the Equipment may be located for the purpose of inspecting or testing the Equipment or retaking possession of the Equipment in accordance with this Agreement.
Any reference in this Agreement to the singular shall include the plural and vice versa, any reference to a person includes a corporation and any other legal entity; any reference to the Equipment shall include any attachments to the Equipment or any parts or accessories from time to time in addition to or in replacement of any part of the Equipment referred to in the schedule hereto.
If any GST is, or becomes chargeable in respect of anything the Seller does or anything the GST law deems the Seller to have done under or in connection with this Agreement, the Purchaser must pay the Seller (in addition to any other amounts payable under this Agreement) the amount of the Seller's GST liability. This amount must be paid at the same time as the minimum monthly amounts are payable, whether or not the GST liability relates to those amounts.
22. Acknowledgement:The Purchaser acknowledges and agrees that the total of the Instalment Payments does not exceed the cash price of the Equipment as at the Commencement Date. The Purchaser further acknowledges that the Seller has relied upon the acknowledgements in this clause in the entering into of this Agreement.
- We will advise you, in writing, the details of the Zip Heaters (Aust) Pty Ltd Pay Plan drawing arrangements [amount; frequency; commencement date] at least fourteen (14) calendar days prior to the first drawing.
- Where the due date falls on a non-business day, we will draw the amount on the next business day.
- We will not change any details of drawings arrangements without giving you at least fourteen (14) days written notice.
- We reserve the right to cancel the Zip Heaters (Aust) Pty Ltd Pay Plan drawing arrangements if three or more drawings are returned unpaid by your nominated Financial Institution and to arrange with you an alternate payment method.
- We will keep all information pertaining to your nominated account at the Financial Institution, private and confidential.
- You may terminate the Zenith Heaters Ltd Pay Plan drawing arrangements at any time by giving written notice directly to us, or through your nominated Financial Institution. Notice given to us should be received by us at least fourteen (14) business days prior to the due date.
- You may stop payment of a drawing under the Zenith Heaters Ltd Pay Plan by giving written notice directly to us, or through your nominated Financial Institution. Notice given to us should be received by us at least fourteen (14) business days prior to the due date.
- You may request change to the drawing amount and/or frequency of Zenith Heaters Ltd Pay Plan drawings by contacting us and advising your requirements no less than fourteen (14) business days prior to the due date.
- Where you consider that a drawing has been initiated incorrectly [outside the Zenith Heaters Ltd Pay Plan arrangements] you may take the matter up directly with us, or lodge a Direct Debit Claim through your nominated Financial Institution.
- Your commitment to us,
- It is your responsibility to ensure that sufficient funds are available in the nominated account to meet a drawing on its due date.
- It is your responsibility to ensure that the authorisation given to draw on the nominated account is identical to the account signing instruction held by the Financial Institution where the account is based.
- It is your responsibility to advise us if the account nominated by you to receive the Zenith Heaters Ltd Pay Plan drawings is transferred or closed.
- It is your responsibility to arrange with us a suitable alternate payment method if you wish to cancel theZenith Heaters Ltd Pay Plan drawing.