- “Company” means the Company described in the Agreement made by both parties, its successors, executors, administrators, and permitted assigns.
- “Services” means the Services attached to the Agreement executed by the parties.
- “Site” means the Company’s nominated premises at which the Services will be performed.
- “Term” means the period referred to Agreement.
- “DROPZONE” means MRI PSO Pty Ltd, its nominees, successors and assigns.
- The Company offers to rent waste removal containers (“the Containers”) and requests the performance of the waste management services of DropZone (“the Services”) on the terms and conditions set out herein. This offer by the Company shall be regarded as being accepted by DROPZONE upon the initial delivery of the Containers to the Company, at which time a binding agreement for rental of the Containers and performance of the Services shall come into effect on the terms and conditions set out herein and in the Schedule of Services, which the parties agree shall constitute the entire agreement between the parties.
- The Company acknowledges that the Services are identified in the Agreement.
- The Company must promptly inform DROPZONE of any change in the details described in the Services. If the Company relocates, the Agreement shall continue to remain in full force and effect (as varied by the substitution of the Company’s new address) for the remainder of the Term (or the Extended Term, as applicable).
- Unless otherwise described in Agreement, the term of the Agreement (“the Term”) shall be for an initial period of three (3) years.
- The Company grants to DROPZONE the exclusive right to perform the Services for the benefit of the Company during the entire Term (including any extension to the Term).
- If the term of the Agreement is described in the Services as being for a period other than three (3) years, then that period shall apply as the Term of the Agreement (“the Initial Term”), and that Term shall be automatically renewed for successive further periods of time equivalent to the Initial Term (“the Extended Term”), unless written notice is received by DROPZONE at least thirty (60) days prior to the expiration of the Initial Term to the effect that the Company does not intend for the Extended Term to apply.
5. SERVICE FEES
5.1 Calculation of Service Fees
- The Company agrees all service fees and charges shall be calculated by DROPZONE in accordance with the service & price details described in the Schedule of Services (“the Service Fees”). All prices are exclusive of GST.
5.2 Payment of Service Fees
- The Company agrees to make payment to DROPZONE for the Services at the times and in the manner directed by DROPZONE from time to time for the whole of the Term (including any extended Term) and to pay interest at the rate of 12% on any monies payable under the Agreement which may from time to time be overdue.
5.3 Variation of the Service Fees
- The Company acknowledges that DROPZONE may determine in its absolute discretion to vary the Service Fees payable by the Company for the remaining Term of the Agreement for reasons including, without limitation: increases in DROPZONE’s operating costs; changes in disposal fees; carbon tax; the profitability to DROPZONE of any given waste removal site; changes to the location of disposal facilities; or increases in government levies, fees, charges, duties, taxes, or any other legislative changes.
- DROPZONE must provide to the Company written notification of any such variation in the Service Fees (“Price Variation Notice”). The Service Fees will automatically be varied to the amount stated in any Price Variation Notice provided by (30) days from the date of the Price Variation Notice is sent.
5.4 Scheduled Collection
- The Company acknowledges that the Service Fees described in the Services are quoted on the basis that the Services provided to the Company are based on a collection schedule specifically determined by DROPZONE (“the Scheduled Collection”). Although DROPZONE undertakes to use all reasonable endeavours to Services at a time most suitable to the Company, if the Company requires the Services to occur at a time that does not form part of a Scheduled Collection, charges in addition to the Service Fees quoted in the Services may apply.
The Company agrees that:
- if DROPZONE has not received written notification of any temporary or other variations to the required Services to its satisfaction at least three (3) days prior to any Scheduled Collection, and
- DROPZONE attends the Company’s premises for the purpose of performing the Services, and
DROPZONE is unable to perform the Services due to holiday closure, lack of access, or some other reason particular to the Company; then in such circumstances the penalty fees will be payable by the Company to DROPZONE as though the Services were actually performed.
6. CONTAINERS FOR SERVICE
The Company agrees
- that nothing contained in the Agreement shall confer on the Company any property or interest in or to the Containers except as a renter of the Containers on the terms of the Agreement.
- before signing the Agreement, the Company has examined the Containers and has satisfied itself as to the condition of the Containers and its suitability for the Company’s purposes.
- no express warranty, condition or representation has been given by DROPZONE as to the quality, fitness, safety, suitably or otherwise of the Containers prior to or at any time during the continuance of the Agreement.
- so far as the law permits, all conditions and warranties which might be implied on the part of DROPZONE are negatived and excluded.
to indemnify DROPZONE against loss or damage arising from loss or damage to the Containers (including lawful confiscation of the Containers).
not to alter or make any addition to the Containers without the previous written consent of DROPZONE and not to alter any identifying number or mark on the Containers.
- to ensure that no combustible, corrosive, toxic, radioactive, volatile, highly flammable, explosive or other dangerous matter is deposited in the Containers and agrees to indemnify and hold harmless DROPZONE and its directors, officers, agents and employees against all claims arising as a result of a breach by the Company of this clause; to keep the Containers in the personal control of the Company and not to attempt or purport to sell, dispose of or encumber the Containers in any way.
- not to relocate the Containers without DROPZONE’s prior written consent.
to notify DROPZONE immediately following any loss or damage to the Containers.
to indemnify DROPZONE against any claims and costs whatsoever arising out of the use, operation or keeping of the Containers or any defect in the Containers, present or future.
7. COMPANY WARRANTIES
The Company warrants:
- that all ground surfaces required to be traversed by any DROPZONE vehicle (in or around the Site) in connection with the performance by DROPZONE of the Services are suitable for this purpose and the Company agrees to indemnify and hold DROPZONE harmless because of any damage (whether direct or indirect) howsoever occurring to any ground surfaces or related areas of the Company’s waste removal site.
- that the weight of any waste deposited in the Container shall not exceed the weight limit as directed by DROPZONE.
that the Container will be used only in connection with the Company’s business.
8. BREACH OF AGREEMENT
If during the Agreement
- the Company does not pay within fourteen (14) days of the date of issue of any Tax Invoice by DROPZONE in relation to Service Fees payable.
the Company commits any other breach of the provisions of the Agreement, which the Company shall fail to rectify within fourteen (14) days after notice by DROPZONE to do so.
- the Company shall commit or suffer an act of bankruptcy or enter an arrangement with its creditors or being a company, shall go into liquidation or have a receiver and/or manager, controller or administrator appointed; THEN DROPZONE may at its option without prejudice to any other right or remedy of DROPZONE contained or implied in the Agreement or at general law
- take appropriate action to enforce the performance of the Agreement by the Company and/or to recover damages for breach of the Agreement; and/or
by notice to the Company terminate the Agreement.
- In such event the Company authorises DROPZONE to enter upon any premises where any Containers may be located and to take possession of the Containers. The Company waives, releases and indemnifies DROPZONE from any liability for any damage or loss occasioned in retaking or attempting to retake possession.
- The Company acknowledges that the Services may be suspended by DROPZONE if the Company fails to comply with any provision of the Agreement, including without limitation the obligation to promptly pay the Services Fees.
- In the event that DROPZONE terminates the Agreement following a breach by the Company then without prejudice to any other rights or remedies of DROPZONE, the Company shall pay to DROPZONE upon demand the aggregate of
- all unpaid Service Fees to the date of termination of the Agreement or the date of any Services last performed by DROPZONE for the benefit of the Company (whichever shall occur last) together with any other monies which may then be payable to DROPZONE under the Agreement and
- all Service Fees in respect of the period from the date of termination of the Agreement or the date of any Services last performed by DROPZONE for the benefit of the Company (whichever shall occur last) until the end of the Term, after discounting to its present value each Service Fee payment that would otherwise have been payable at a later date by applying a discount rate determined by DROPZONE as being the rate of cost of funds of DROPZONE applicable to the Agreement.
- Upon payment to DROPZONE of all such monies and interest (if applicable) the Company shall be relieved of all liability to
- DROPZONE for Service Fees under the Agreement.
- Without affecting the Company’s obligations above, DROPZONE will use all reasonable endeavours to mitigate its loss and will credit the Company for any part of the loss which it is able to mitigate.
- If the Company validly terminates the Agreement however at the expiration of the Term or the Extended Term (as applicable) fails to make the Containers available for collection by DROPZONE, then the period of the Agreement shall be extended from month to month (“the Holding Over Period”) at the same Service Fees and otherwise on the same terms and conditions as set out in the Agreement provided that the Holding Over Period may be determined by DROPZONE demanding possession of the Containers at any time or by the Company delivering the containers to DROPZONE.
11. INDIRECT OR ECONOMIC LOSS
- The Company acknowledges that in no event shall DROPZONE be liable for any indirect, consequential, or economic loss.
- If the Company is a company within the meaning prescribed to that term under the Corporations Act 2001, an authorised officer of the Company must sign the Services Schedule as ‘Guarantor’ of the obligations of that company under the Agreement. The following further provisions bind the Guarantor in the performance of the obligations of the Company under the Agreement:
- In consideration of DROPZONE accepting this offer, the Guarantor (jointly and severally) guarantees the payment of all Service Fees and other money payable by the Company to DROPZONE under the Agreement and the due performance of the Company’s obligations under the Agreement.
- The Guarantor’s obligations are unconditional and irrevocable and will not be released or otherwise affected by any legal disability of any person, by any neglect or forbearance of DROPZONE to enforce the terms of the Agreement or this guarantee, or by DROPZONE granting any time concession or indulgence to, or making any composition with the Company, or waiving any breach or default by the Company.
- The Guarantor must pay DROPZONE’s costs of enforcing this guarantee and interest on the guaranteed money at the rate specified in the Agreement and must pay the guaranteed money on demand.
- This guarantee is a primary obligation and DROPZONE need not act against the Company or any other person before enforcing this guarantee.
- DROPZONE may (subject always to the rights of the Company under the Agreement) sell or assign either absolutely or by way of security its rights under the Agreement and to the Container.