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Rent-it-Today Terms and Conditions
Rent-it-Today Terms and Conditions
As at 1st March 2023
By entering into this Application Form, you irrevocably acknowledge and agree that if your Application Form is accepted by Caterlink (if at all) and you enter into Caterlink’s General Conditions (collectively, Contract) pursuant to clause 2(a) above (if at all), the Contract will be subject to the following conditions (as set out in further detail in the General Conditions):
- Minimum Term Applies): you acknowledge and agree that the Contract will provide that if the Goods are re-possessed or returned before the Minimum Term (as specified in the General Conditions), you are liable to pay Rent Instalments (as specified in the General Conditions) for the remaining Minimum Term (eg if Goods are returned after 10 months on a 12 month Minimum Term, you are responsible to pay Caterlink the remaining 2 months’ Rent Instalments).
- (Contract Continues After Minimum Term until Maximum Term): you agree that the Contract will at least be for the Minimum Term, after which the Contract continues until the earlier of the following: (a) you choose to terminate the Contract by contacting Caterlink to do so, providing written notice of termination and either returning, purchasing or upgrading the relevant Goods in accordance with the Contract; or (b) by 30th January in the year immediately following the 5th anniversary of the Commencement Date (upon which this Contract terminates automatically). It is your responsibility to keep record of the Minimum Term as Caterlink will not send a reminder regarding the expiry of the Minimum Term or the Maximum Term.
- (Purchase At Finance Price Only): you acknowledge that, to the extent you elect to purchase any Goods under the Contract, the purchase price will be determined (and notified to you) by Caterlink by reference to the finance price of the relevant Goods under this Contract (being the aggregate Rent Instalments) and not the base purchase price at which the Goods may otherwise be available.
- (Warranty Subject to No Amount Outstanding, Correct Use & Maintenance): you acknowledge that any warranty to which you may be entitled in respect of the Goods the subject of the Contract will be subject to there being no amount owing by you under the Contract and your correct use and regular maintenance of the Goods (at your cost and expense) in accordance with the relevant manufacturer’s guidelines, specifications and the terms of the Contract.
- (No Replacement Unit or Credit Provided): you acknowledge that Caterlink does not provide a replacement loan unit or credit whilst your Goods are being repaired.
- (Regional Clients): to the extent you are a regional client, the Contract will provide additional terms which apply to your ability to obtain repairs of the Goods.
- (Assignment Restrictions): to the extent you wish to assign your rights and/ or obligations pursuant to the Contract to any third party, you will be required to notify Caterlink over the phone and in writing, you and the proposed transferee (Transferee) enter into such documentation as required by Caterlink (in its sole discretion), including, in the case of the Transferee, a new Application Form and any proposed assignment is not valid unless and until the new Application Form is accepted by Caterlink (in its sole and absolute discretion).
- (Disconnection & Return Costs): where you return any Goods to Caterlink, you will be solely responsible for all costs, expenses and charges arising in connection with the disconnection of the Goods from your premises and delivery to Caterlink’s premises.
- (Retention of Title): Title in the Goods will remain with Caterlink, subject to and conditional upon Caterlink having received (in cleared funds) the full Purchase Price for that Goods.
- (Rebate Lapses for Goods Beyond Repair): If Caterlink determines (in its sole discretion) that Goods are beyond repair or uneconomical to repair for reasons other than Defects, including where, through fair wear and tear, the Goods have become an end-of-life product and at its discretion offers you the opportunity to apply for a replacement Contract for new Goods, you acknowledge and agree that upon accepting that offer any rebates to which you may have otherwise been entitled under your existing Contract will automatically lapse and be forfeited.
1.1 Chrystal & Co Pty Ltd (ACN 008 680 822) (trading as Caterlink) (Caterlink); and
1.2 The Party Specified in the Application Form (you/ your).
2.1 This agreement consists of the following documents (which apply in the following order of precedence) (collectively, Contract):
(a) Application Form (with special conditions (if any) given precedence) executed by you and accepted by Caterlink (as replaced pursuant to clauses 9.4 and 11.2(c)); and
(b) these General Conditions (including all schedules and annexures).
2.2 If there is an inconsistency between the documents comprising this Contract, the inconsistency is to be resolved in the above order of precedence.
3. MINIMUM TERM & MAXIMUM TERM
3.1 Unless terminated earlier in accordance with clause 12, this Contract commences on the Commencement Date and continues, after expiry of the minimum fixed period indicated in the Contracts Schedule (Minimum Term) in respect of all Goods which are not owned by you at that time unless and until the earlier of:
(a) the date those Goods are either (at your election):
(1) purchased by you in accordance with clauses 10 and 5.3;
(2) upgraded in accordance with clause 11; or
(3) returned to Caterlink in accordance with clause 12.4(a); or
(b) by the 30th January in the year immediately following the 5th anniversary of the Commencement Date (Maximum Term) (in which case clause 12.2 applies),
3.2 Pending Goods being dealt with in accordance with clause 3.1(a)(1), 3.1(a)(2) or 3.1(a)(3) (as applicable), you agree to continue paying Rent Instalments (and Taxes) to Caterlink in accordance with clause 9 until the expiry of the Maximum Term.
3.3 Caterlink will not send a reminder to you in respect of the expiry of the Minimum Term and your ongoing obligation to make payment in accordance with clause 3.2, or of the expiry of the Maximum Term.
3.4 Caterlink will not send a reminder to you in respect of the expiry of the Minimum Term and your ongoing obligation to make payment in accordance with clause 3.2.
3.5 Notwithstanding any other clause, you acknowledge and agree that, if any Goods are re-possessed by Caterlink under this Contract, returned by you before expiry of the Minimum Term or Caterlink terminates this Contract under clause 12.1(b) or 12.1(c), you are liable to pay Caterlink all Rent Instalments for the remaining Minimum Term (in addition to Rent Instalments which have already fallen due).
4. SECURITY DEPOSIT
4.1 To the extent you rent any Goods, as security for the performance of your obligations hereunder, you agree to pay Caterlink a security deposit equal to:
(a) to the extent the aggregate value of the Goods is below $100,000 (including GST), 8 weeks of Rent Instalments as set out in the Contracts Schedule; or
(b) to the extent the aggregate value of the Goods is equal to or greater than $100,000 (including GST), 12 weeks of Rent Instalments as set out in the Contracts Schedule,
(either, Security Deposit).
4.2 Caterlink may utilise the Security Deposit to remedy any breaches by you of this Contract, any damage to or destruction or theft of the Goods, to clean and otherwise repair the Goods to original condition and to retrieve the Goods from you.
4.3 Upon expiry of the Term or the earlier termination of this Contract, you will be refunded the remaining balance of the Security Deposit, after having deducted the charges contemplated in clause 4.2 (if any) (such remaining balance being the Remaining Security Deposit).
4.4 To the extent you:
(a) purchase any Goods pursuant to clause 10, Caterlink may (at its discretion) allow you to attribute the Remaining Security Deposit towards the Purchase Price of those Goods; and
(b) upgrade Goods pursuant to clause 11, Caterlink may (at its discretion) allow you to attribute the Remaining Security Deposit towards the Security Deposit in respect of the Upgraded Goods.
5. TITLE AND DELIVERY
5.1 Subject to clause 5.2, the Goods will be provided to you EXW (Incoterms 2010) Caterlink Premises, such that you are wholly responsible for:
(a) the loading, collection and transportation of those Goods from the Caterlink Premises;
(b) procuring all necessary insurance in respect of those Goods; and
(c) all onward transport and for all costs arising after collection of those Goods,
and all risk in those Goods will pass to you when those Goods leave the Caterlink Premises and the carrier of those Goods will be taken as being your agent.
5.2 Caterlink may agree to provide Goods to you CIF (Incoterms 2010) FO the Customer Premises, in which case:
(a) by entering into this Contract, you are deemed to have appointed Caterlink as your agent to arrange shipping on your behalf, unless otherwise agreed in writing between the parties;
(b) while Caterlink will use reasonable endeavours to procure delivery of the Goods that have been rented or purchased by you to the Customer Premises within any timeframe provided to you, which is indicative only, Caterlink is not liable in any way for any Loss arising from any delay in delivery; and
(c) risk in each Good shall pass from Caterlink to you when that Good is delivered on-board the performing vehicle at the point of loading.
5.3 Title to each Good will remain with Caterlink, subject to and conditional upon Caterlink having received (in cleared funds) the full Purchase Price for that Good in accordance with clause 10.
6. RETURNS POLICY
6.1 You must thoroughly inspect all Goods, including to identify any Defects, promptly upon delivery or collection (as applicable), and in any event within ten (10) Business Days of delivery, notify Caterlink in writing if there is any error in the Goods received or you wish to return any Good for any reason.
6.2 Caterlink may, at Caterlink’s sole and absolute discretion, agree in writing to accept the return of Goods requested by you, in which case, the Goods must be:
(a) returned with the original packaging, in unsoiled, undamaged and resalable condition; and
(b) returned to the Caterlink Premises, at your cost and expense (including, without limitation, all costs, liabilities, charges and expenses in connection with the disconnection of the Goods from the Customer Premises).
6.3 You acknowledge and agree that if Caterlink agrees to the return of any Good, other than a Defective Good, Caterlink may, at Caterlink’s sole discretion, charge a handling/ restocking fee of an amount up to 30% of the price of the Good charged to you, payable by you prior to Caterlink accepting delivery of the returned Good.
7. PRODUCT WARRANTIES
7.1 You must notify Caterlink in writing as soon reasonably practicable upon becoming aware of, any Goods which you consider to be Defective (Defect Notice).
7.2 If you provide a Defect Notice to Caterlink, Caterlink may inspect the relevant Good to determine whether it is Defective (acting reasonably).
7.3 Subject to clause 7.4, during the relevant Warranty Period, if any Good, or part of any Good, rented or purchased by you is determined to be Defective, the warranty claim must be notified to Caterlink (not the manufacturer) and, subject to the Product Warranty Terms, Caterlink will arrange for the defect to be remedied in the manner determined by Caterlink at its sole and absolute discretion, including (without limitation) by repairing or replacing the relevant Goods, provided that:
(a) you have complied with all of your obligations in this Contract and have provided to Caterlink a Defect Notice in respect of the relevant Good, or part thereof, within the Warranty Period;
(b) you have provided Caterlink with a reasonable opportunity to inspect the relevant Good;
(c) the Defect is not caused by any assembly, construction, alteration, modification, adjustment, operation, servicing, repair, maintenance or storage of the Goods by you which is in a manner contrary to the terms of this Contract, the Manufacturer’s Guidelines, or Good Industry Practise;
(d) you have complied with all reasonable directions Caterlink provide to you regarding the return of the relevant Goods (or parts thereof) which are, or are alleged to be, Defective; and
(e) there is not any outstanding Amount Owing.
7.4 If Caterlink determines (in is sole discretion) that Goods are beyond repair or uneconomical to repair for reasons other than Defect, including where, through ordinary wear and tear, the Goods have become an end-of-life product, Caterlink may (but is not obligated to) at its sole discretion agree to offer you the opportunity to apply for a replacement Contract for new Goods on the same terms as your existing Contract and/ or offer you free delivery of future Goods. For the avoidance of doubt, any rebates which may be available to you under this Contract are deemed forfeited and cancelled in the event you enter into a replacement Contract under this clause 7.4.
7.5 Notwithstanding any other clause, you acknowledge and agree that:
(a) your right to claim for any Defect is subject to and conditional upon there being no Amount Owing, and you using, and performing regular ongoing maintenance in respect of, the relevant Goods in accordance with the Manufacturer’s Guidelines; and
(b) Caterlink does not provide a replacement loan unit or credit whilst any Goods are being repaired.
8. YOUR OBLIGATIONS
8.1 You acknowledge and agree that you are solely responsible, and Caterlink shall not assume any liability, for:
(a) the assembly, construction and installation of the Goods (which you acknowledge and agree must be undertaken exclusively by a Caterlink approved technician, failing which, any warranty available to you under this Contract may be voided);
(b) any user error in respect of the Goods due to your non-compliance with the Manufacturer’s Guidelines;
(c) preserving the Goods in good working order (save for fair wear and tear) and arranging for service and repair of all Goods in accordance with the Manufacturer’s Guidelines and Good Industry Practice (other than under the Product Warranty Terms), including (without limitation) by:
(1) replacing of light globes, door seals, glass, filters and curtains on cold units;
(2) preventing the over-packing of stock;
(3) maintaining the temperature of the room in which the Goods are stored and not leaving the door of any refrigeration units open for extended periods of time;
(4) checking and cleaning condensers, including, where indicated by the Manufacturer’s Guidelines or in writing by Caterlink, by compressed air; and
(5) ensuring gaskets are sealed correctly, adjusting door hingers and replacing gaskets and checking the condition of the power supply cord.
8.2 You must:
(a) inform Caterlink if the place where the Goods are used or ordinarily kept are changed; and
(b) not alter or modify or alter the Goods in any way without Caterlink’s prior written consent.
8.3 Prior to the delivery of any Goods, you must take out, maintain and provide to Caterlink, upon request, certificates of currency for the following insurances in accordance with Good Industry Practice (and otherwise on such terms and for such amounts as are satisfactory to Caterlink in its sole discretion):
(a) damage to or destruction or theft of the Goods;
(b) public liability insurance against all third party risks, including liability for damage or injury of any kind to any property or person; and
(c) such workers compensation insurance as required by law.
8.4 This clause 8 shall not apply to the extent you have purchased Goods in full and in accordance with clauses 10 and 5.3.
9. PAYMENT AND TAXES
9.1 You must pay to Caterlink, in full and without deduction:
(a) the Rent Instalments payable for all Goods that are rented by you, together with any applicable delivery fees (if any), in accordance with clause 9.2 and the Contracts Schedule; and
(b) any and all Taxes imposed or assessed in relation to any payment by you pursuant to this Contract, including, where such payment constitutes a Taxable Supply (as that term is defined in the GST Act), an amount equal to the GST payable.
9.2 By entry into this Contract, you: (i) hereby request and irrevocably authorise Caterlink (or its agents) to arrange a debit to my/ our Nominated Account (as defined in the Contracts Schedule) to pay all Amounts Owing under this Contract; (ii) understand that direct debits will be paid every Wednesday (unless otherwise notified by Caterlink) (Debit Date) for the duration of the Term; (iii) acknowledge that there may be an initial and final pro-rata amount payable that is in addition to the Rent Instalment for the first and final Rent Instalments; (iv) confirm that you are authorised to operate the Nominated Account; and (v) acknowledge that there will be a $40 dishonour fee incurred for every rejected direct debit from the Nominated Account.
9.3 You may change your nominated payment method at any time by notice in writing to Caterlink, which change will take effect from the next Debit Date, provided that the notice has been provided more than five (5) Business Days in advance of the Debit Date.
9.4 You acknowledge and agree that, notwithstanding any other clause, Caterlink may at any time repossess the Goods and/or require that you submit a new Application Form (or new Deed of Guarantee), including in, but not limited to, circumstances where:
(a) your nominated payment method is invalid, has expired or where there are insufficient funds to satisfy an Amount Owing as at the Debit Date; or
(b) you have undergone a Change in Control.
9.5 Caterlink may charge default interest on all Amounts Owing at the rate of 9% per annum on and from the date when such Amounts Owing became due for payment up to, and including, the date that such Amounts Owing have been paid (in full).
9.6 Caterlink may set off against any amounts payable by Caterlink to you against any Amounts Owing to Caterlink.
10. PURCHASE REQUEST
10.1 You may, at any time during the Term (subject to you not being in breach of this Contract), request in writing to Caterlink that Caterlink sells you the Goods you are renting at the Purchase Price (Purchase Request), which Caterlink may accept or reject at its sole and absolute discretion.
10.2 You acknowledge that the Purchase Price under any Purchase Request will be determined (and notified to you) by Caterlink by reference to the finance price of the relevant Goods under this Contract (being the aggregate Rent Instalments for the duration of the Minimum Term) and not the base purchase price at which the Goods may otherwise be or have been available.
10.3 If Caterlink accepts the Purchase Request in accordance with clause 10.1:
(a) subject to receipt by Caterlink (in cleared funds) of the Purchase Price, title to the Goods shall pass to you (free of encumbrances) in accordance with clause 5.3, without the necessity for actual or formal delivery or conveyance;
(b) to the maximum extent permitted by law, Caterlink makes no warranty regarding the state, condition or location of the Goods and you purchase the Goods on an “as is, where is” basis in whatever state, condition or location it may be at the point of sale;
(c) Caterlink is not obliged to deliver up possession to you of the purchased Goods, which you must arrange at your own cost and expense; and
(d) renting of the Goods will terminate upon receipt by Caterlink (in cleared funds) of the Purchase Price in accordance with clause 10.3(a) (however, you will remain responsible for the payment of Rent Instalments up to the date on which such termination occurs).
10.4 Caterlink may, at its sole and absolute discretion, allow you to deduct an amount of up to 75% of the Rent Instalments paid by you prior to exercise of the Purchase Request from the Purchase Price payable for the Goods being purchased (capped at a maximum of 90% of the value of the relevant Goods).
11. UPGRADE REQUEST
11.1 You may, upon expiry of the Minimum Term (subject to you not being in breach of this Contract), request in writing to Caterlink (Upgrade Request) that Caterlink provide you with goods of a higher value or capability (Upgraded Goods) in replacement of the Goods which you are currently renting, which Caterlink may accept or reject at its sole and absolute discretion.
11.2 If Caterlink accepts your Upgrade Request in accordance with clause 11.1:
(a) you must, at your own cost and expense, arrange for the return to the Caterlink Premises of the rented Goods in your possession or control;
(b) you shall remain responsible for paying Rent Instalments in respect of the rented Goods in your possession or control up to and including the date they are returned to the Caterlink Premises;
(c) as a pre-condition to you receiving the Upgraded Goods, you must complete a new Application Form (and new Deed of Guarantee (if applicable)) to the satisfaction of Caterlink (in its sole and absolute discretion); and
(d) subject to Caterlink having accepted your new Application Form, these General Conditions will apply, mutatatis mutandis in respect of the Upgraded Goods for the existing Term and such additional period as may be agreed between you and Caterlink in writing.
12.1 This Contract may be terminated:
(a) by Caterlink, at any time, for convenience, by providing the other party with at least three (3) months’ written notice;
(b) by you, at any time after the Minium Term has expired, by providing Caterlink with at least fourteen (14) day’s written notice and either returning or purchasing the Goods; and
(c) by either party, on fourteen (14) days’ written notice to the other party, if the other party breaches a material term of this Contract, including, in your case, a breach of clause 9 or 10, which:
(1) is incapable of remedy; or
(2) if capable of remedy, is not remedied within fourteen (14) days of the other party receiving written notice requiring the breach to be remedied; and
(d) by Caterlink, immediately upon notice to you, if:
(1) there is a Change in Control or assignment of this Contract for which Caterlink has not provided its prior written consent;
(2) you are a natural person and are convicted of a crime punishable by a term of imprisonment for one (1) year or more; or
(3) you suffer an Insolvency Event.
12.2 Where the Maximum Term is reached in respect of any Goods, this Contract automatically terminates in respect of those Goods without any further action being required by either party.
12.3 The termination or expiration of the Contract, however caused:
(a) is without prejudice to any rights or obligations of the parties which have accrued prior to that termination or expiration (as applicable); and
(b) shall not affect clauses 4.2, 8.1(c), 12.2 to 20 (inclusive) and this clause 12, each which shall survive such termination or expiry.
12.4 Upon the termination or expiration of the Contract for any reason:
(a) you must return any Goods in your possession or control which are not owned by you; and
(b) return and cease to use any Confidential Information.
12.5 Without limiting any other rights or remedies which may be available to Caterlink at Law, you acknowledge and agree that Caterlink is entitled to suspend the delivery of any Goods, and repossess any Goods which have been received by, but are not owned by, you, at Caterlink’s sole discretion, if you are in default of any of your obligations in this Contract.
13. LIABILITIES AND INDEMNITIES
13.1 Subject to clause 13.2, you shall be responsible for, and indemnify and hold Caterlink and each of Caterlink’s Personnel (collectively, Indemnified Persons) harmless from and against, any Loss caused or incurred by:
(a) any breach of this Contract by you (or your Personnel);
(b) any assembly, modification, construction, maintenance, installation, servicing or repair of any Goods performed by you or your Personnel; and
(c) your Personnel, as a result of personal injury or death.
13.2 To the maximum extent permitted by law, the Indemnified Persons excludes and you irrevocably agree to release each Indemnified Person from, any and all liability (whether arising in contract, tort or otherwise) that any of the Indemnified Persons may have for any Loss arising from any reliance on, or the availability, use, quality, correctness, completeness or any statement or representation regarding the suitability of the Goods.
13.3 To the maximum extent permitted by law, Caterlink’s liability pursuant to any guarantee, condition or warranty (including, without limitation, any guarantee, condition or warranty of merchantability, acceptable quality, fitness for purpose or fitness for disclosed result), or any other right or remedy, pursuant to any legislation, or which is implied into this Contract by any legislation (Statutory Warranties), is hereby excluded.
13.4 Where Caterlink is liable pursuant to any Statutory Warranties, and any legislation avoids or prohibits provisions in this Contract excluding or modifying the application, or exercise, of or liability pursuant to, such Statutory Warranties, Caterlink’s liability for any breach of such Statutory Warranties shall be limited, at Caterlink’s option, to one or more of the following:
(a) if the breach relates to any goods, the replacement of the relevant goods, the supply of equivalent goods or the refund of any fees you paid for the goods; and
(b) if the breach relates to any services, the supplying of the services again, the payment of the cost of having the services supplied again or the refund of any fees you paid for those services.
13.5 Notwithstanding any other clause, no party will be liable to the other party (or their respective Personnel) for any Consequential Loss (save for fraud, dishonesty or wilful misconduct), howsoever caused, suffered or incurred in connection with this Contract.
13.6 You acknowledge and agree that Caterlink’s reliance on the limitations of liability in this clause 12.2 is fair and reasonable in all the circumstances.
14.1 In this clause 14, words and phrases that have defined meanings in the Personal Property Securities Act 2009 (Cth) (PPSA) have the same meanings as ascribed to them in the PPSA and reference to a section is a reference to a section of the PPSA.
14.2 As security for performance of your obligations pursuant to this Contract, including payment of Amounts Owing, you:
(a) grant to Caterlink a security interest in all Goods rented by you pursuant to this Contract (and all proceeds) (unless and until purchased by you in accordance with clauses 10 and 5.3) (Secured Property); and
(b) acknowledge that, pursuant to clause 14.2(a), you have granted to Caterlink a purchase money security interest in the Secured Property (and all proceeds).
14.3 Until all Amounts Owing have been received by Caterlink:
(a) you are not entitled to grant or permit any form of security interest over the Secured Property or any accounts in relation to the Secured Property;
(b) you acknowledge and agree that, where you are in breach of this Contract, we may enter into the premises located at the Customer Premises (or the premises of an associated company or agent where any Secured Property is reasonably likely to be located) and to seize or take repossession of the Secured Property located at that place, and you represent and warrant that you have obtained all necessary third party consents to such access and that, in doing so, Caterlink will not incur any liability for trespass to the property of any person; and
(c) we may keep, resell or otherwise dispose of any Secured Property which Caterlink have seized or repossessed in accordance with clause 14.3(b).
14.4 If any Secured Property supplied to you becomes part of a product or mass or are otherwise dealt with or disposed of (unless and until purchased by you in accordance with clauses 10 and 5.3), then:
(a) you acknowledge and agree that any dealings or disposals in the collateral giving rise to proceeds does not extinguish Caterlink’s security interest and that those proceeds are to be held by you as trustee and agent for Caterlink;
(b) Caterlink’s security interest continues in the other property, product or mass; and
(c) references to the Secured Property supplied to you shall include the other property, product or mass.
14.5 You must notify us at least fourteen (14) days before you change your name, place of registration or incorporation or apply for an ACN or ABN pursuant to which an interest in any of the collateral specified in this Contract is, or will be, held.
14.6 The parties agree that, pursuant to section 275(6), neither party will request or be obliged to disclose information of the kind mentioned in section 275(1).
14.7 You irrevocably agree:
(a) that we may register the security interest granted pursuant to clause 14.2 on the Personal Property Securities Register (and any successor register) in any manner Caterlink consider appropriate and that any costs incurred in registering, amending or releasing will be charged to you and added to the Amount Owing;
(b) as a grantor pursuant to the PPSA, you have waived your rights to receive any notice required by any provision of the PPSA (including a notice of a verification statement) to the maximum extent that such a right can be excluded; and
(c) to the extent the law permits, section 143 is excluded, and that Caterlink, as secured party, need not comply with sections 95, 118, 121(4), 125, 130, 132(3)(d) or 132(4).
15. YOUR WARRANTIES
15.1 You represent and warrant, for the benefit of each Indemnified Person, that:
(a) all information provided to Caterlink by you, or at your direction, is accurate in all respects and not misleading, whether by omission or otherwise;
(b) prior to taking delivery of any Secured Property pursuant to this Contract, you have obtained any other required persons’ agreement sufficient to authorise Caterlink to carry out inspections pursuant to clause 7.2 at any time;
(c) you will comply with all applicable Laws in relation to the assembly, construction, servicing and maintenance of the Secured Property; and
(d) where you enter into this Contract as the trustee of any trust, you warrant that you have full power and authority to do so and that you shall be bound by this Contract in your own capacity and in your capacity as the trustee of that trust.
15.2 You expressly acknowledge and agree that the representations and warranties contained in clause 15.1 are repeated on each day for the duration of the Term and that Caterlink will be relying upon these representations and warranties when entering into this Contract and agreeing to supply you with any such Secured Property.
Each party agrees to keep confidential any Confidential Information provided to it by the other party and to not, and to procure that its Personnel do not, use or disclose such information other than:
(a) to that party’s professional advisors;
(b) as agreed by the parties in writing;
(c) as required for the purpose of a party exercising their rights or discharging their obligations pursuant to this Contract; or
(d) as required by law, a court of competent jurisdiction or government agency, provided that the disclosing party first provides the other party with reasonable prior written notice and discloses only the minimum information required to satisfy such requirement.
You may assign your rights or obligations arising pursuant to this Contract, in their entirety, to a third party, provided that:
(a) you notify Caterlink over the phone and in writing of the proposed transfer;
(b) you and the proposed transferee (Transferee) enter into such documentation as required by Caterlink (in its sole discretion), including, in the case of the Transferee, a new Application Form; and
(c) any proposed assignment is not valid unless and until the new Application Form is accepted by Caterlink (in its sole and absolute discretion).
(a) You acknowledge and agree that:
(1) you have provided Caterlink with your email address for the purpose of being notified by email of amendments to these General Conditions, which may be done by Caterlink uploading a copy of the amended General Conditions to Caterlink’s website and notifying you of the same; and
(2) the amended General Conditions shall take effect on the date notified to you in writing, provided it is not earlier than 30 days’ after your being provided with notice of such amendments.
(b) You may, within 30 days of Caterlink’s notifying you of an amendment pursuant to clause 18(a), terminate this Contract on providing written notice to Caterlink.
19.1 By entry into this Contract, you acknowledge and agree that you have read, understood, and agree to be bound by, this Contract and have obtained, or have had the opportunity obtain legal advice in respect of this Contract.
19.2 The Contract records the entire agreement between the parties, and supersedes all previous agreements, in respect of its subject matter.
19.3 The relationship between the parties established pursuant to the Contract does not constitute a franchise, partnership, joint venture, employment relationship or give rise to any form of fiduciary relationship.
19.4 Any provision of this Contract which is prohibited or unenforceable will be read down to the extent necessary to be valid and, if it cannot be read down, severed from this Contract.
19.5 Any waiver is of no effect unless it is in writing, signed by the party granting the waiver or its authorised representative. A waiver is limited to the instance referred to in the writing (or if no instance is referred to in the writing, to past breaches).
In this Contract, the following words have the following meanings (unless the context requires otherwise):
Amounts Owing means all amounts owed, but not paid, by you pursuant to this Contract, including, without limitation, any accrued interest, fees or expenses agreed to be paid by you pursuant to these General Conditions and references to Amount Owing have a corresponding meaning.
Application Form means any ‘Application Form’ entered into by you (or your permitted successors and assigns) in connection with either or both of the rent and purchase of Goods from Caterlink.
Business Days means any day except a Saturday, Sunday or public holiday in Perth, Western Australia.
Caterlink means Chrystal & Co Pty Ltd (ACN 008 680 822) (trading as Caterlink).
Caterlink Premises means, in respect of a given delivery, the premises specified by Caterlink to you in writing prior to the date of collection.
Change in Control means:
(a) a person who Controls you at the date of this Contract stops having Control of you;
(b) a person who did not (directly or indirectly) Control you at the date of this Contract, either alone or together with others, acquires effective Control of you; and
(c) where you are a “company”, a transaction is undertaken (whether by sale, transfer, cancellation, issuance or other means) the result of which is that one or more persons become entitled to acquire, hold or have a legal or beneficial interest in more than 50% of the issued share capital, or votes attaching to the shares eligible to be cast at a general meeting, of you. For the purposes of this definition, the phrase, “more than 50% of the issued share capital,” includes a right to receive more than 50% of the dividends payable, or capital distributable, on a winding up, of you.
Commencement Date means, in respect of any Goods, the date the Goods are delivered to the Customer Premises.
Confidential Information means any term of this Contract, any information acquired by a party for the purpose of, or pursuant to, this Contract and any other information belonging to a party which is of a confidential nature.
Consequential Loss means loss of bargain, loss of revenue, loss of reputation, indirect loss, loss of profit, loss of actual or anticipated savings, lost opportunities (including opportunities to enter into arrangements with third parties), loss or damage in connection with claims against a party by third parties or loss or corruption of data.
Contracts Schedule means the Contracts Schedule attached to these General Conditions as Schedule 1.
Control has the meaning ascribed to that term in the Corporations Act.
Corporations Act means the Corporations Act 2001 (Cth).
Customer Premises means your place of business as specified in the Application Form (or such other location notified by you in writing to Caterlink from time to time).
Deed of Guarantee means a deed of guarantee in the form set out in Annexure A.
Defect means the failure of a Good to meet the Goods Specifications (including Product Warranties (as defined in Annexure B)) or the requirements of this Contract, but excludes failures that are caused or contributed to by any modification to that Good made or authorised by you that Caterlink have not authorised in writing, and references to Defective have a corresponding meaning.
Good Industry Practice means the servicing and repair of Goods to a high quality, in a professional manner and to the standard ordinarily expected of competent food, beverage and catering businesses in Australia.
Goods means any goods supplied to you pursuant to this Contract (including those specified in the Contracts Schedule).
Goods Specifications means the specifications provided by Caterlink, or at Caterlink’s direction, pertaining to the Goods.
GST has the meaning ascribed to that term in the GST Act.
GST Act means A New Tax System (Goods and Services Tax) Act 1999 (Cth).
Indemnified Person has the meaning ascribed to that term in clause 13.1.
Insolvency Event means an event where:
(a) an order is made or a resolution is effectively passed for your winding-up or dissolution (except for the purpose of solvent reconstruction or amalgamation for which Caterlink have given prior written approval);
(b) you go into liquidation or make an assignment for the benefit of, or enter into an arrangement, composition or compromise with your creditors, or any class of creditors;
(c) a receiver and manager, controller, administrator, trustee or similar officer is appointed over all or any part of your assets or an application or order for such appointment is made;
(d) execution is levied against you and is not discharged within thirty (30) Business Days;
(e) you are unable to pay your debts as and when they fall due, or you are deemed unable to pay your debts according to applicable Law or Authorisation (other than because of a failure to pay a debt or claim the subject of a good faith dispute);
(f) you (being an individual) become bankrupt, or commit an act of bankruptcy; or
(g) anything analogous or having similar effect to anything referred to in paragraphs (a) to (f) of this definition occurs in respect of you.
Law means any act of parliament, any subordinate legislation, rules, regulations, standards or by-laws made pursuant to the relevant act, any common law or principles of equity or any form of authorisation, approval, certification or consent from any government authority or professional or industry body.
Loss means any costs, damages, loss, demands, legal proceedings, claims, actions, fines, penalties, obligations, liabilities or expenses of any nature, including, without limitation, the costs of Caterlink’s mercantile agents and the costs of any matter being referred out to a collection agent and/or solicitor for recovery.
Manufacturer’s Guidelines means the guidelines provided by the manufacturer of the relevant Good.
Maximum Term has the meaning ascribed to that term in clause 3.1.
Minimum Term has the meaning ascribed to that term in clause 3.1.
Personnel means, of a party, that party’s employees, officers, contractors, Related Entities (as that term is defined in the Corporations Act) and subcontractors, and employees, officers, contractors and Related Entities of those subcontractors.
Product Warranty Terms means the terms contained in Annexure B.
Purchase Price means the purchase price payable to purchase Goods pursuant to clauses 10 and 5.3, being the ‘Finance Price’ stated in the Contract Schedule.
Purchase Request has the meaning ascribed to that term in clause 10.1.
Rent Instalments means the weekly rental instalments payable by you to rent the Goods pursuant to this Contract, as specified in the Contracts Schedule.
Secured Property has the meaning ascribed to that term in clause 14.3.
Taxes means a tax (including GST), rate, levy, impost or duty and any interest, penalty, fine or expense relating to any of the foregoing or other withholding of a similar nature (including any penalty or interest payable in connection with any failure to pay or any delay in paying any of the same).
Term has the meaning ascribed to that term in clause 3.1.
Upgrade Request has the meaning ascribed to that term in clause 11.1.
Upgraded Goods has the meaning ascribed to that term in clause 11.1.
Warranty Period means, in respect of any given Good, the applicable warranty period applying to that Good, as specified in the relevant warranty certificate issued by Caterlink as at the date of purchase.
Annexure B – Product Warranty Terms
The following additional Product Warranty Terms apply in respect of the Goods:
1. The Goods Specifications in respect of any Goods may contain product warranties from the relevant manufacturer upon which you may be entitled to a remedy (each, a Product Warranty), which you agree shall be exercised exclusively in accordance with this Contract.
2. Where there is a Product Warranty which applies to any of the Goods which expires during the Term, Caterlink agrees to provide an equivalent warranty to you on the same terms as the Product Warranty. References in this Annexure B to ‘Product Warranty’ includes reference to warranties provided by Caterlink in accordance with this clause 2.
3. Where you notify Caterlink of a warranty claim in accordance with clause 7.3 of the Contract, Caterlink will arrange with the relevant manufacturer of the Goods, on your behalf, for any warranty repairs to the Goods which are required, provided that all repairs made under any Product Warranty must occur during normal business only (specifically 8.30am-5pm during Business Days) and any servicing required outside this period must be arranged and paid for by you.
4. You acknowledge and agree that:
(a) the availability of any repairs under these Product Warranty Terms are subject to the terms of the relevant Product Warranty (and the Manufacturer’s Guidelines more generally) and Caterlink assumes no liability for the availability or unavailability of any such Product Warranties; and
(b) while Caterlink will use reasonable endeavours to procure repairs in accordance with paragraph 3 immediately above, any timeframe provided to you is indicative only and Caterlink is not liable in any way for any Loss arising from any delay in servicing occurring. Caterlink notes in particular that various of Caterlink’s suppliers and manufacturers are based in the Eastern States, which may cause delays (including as a result of time differences) in repairs.
REGIONAL CUSTOMERS ONLY
To the extent that you are a Regional Customer (being a person or entity within the parameters set out in the below “Coverage” column) the manufacturer will only attend site to provide warranty repairs on Goods under a Product Warranty in the event it is within the parameters set out in the following table, and that certain Goods (including all Goods stored outside the following parameters) require ‘back to base’ repairs, in which case, it is your responsibility to arrange and pay for delivery of the relevant Goods to the relevant manufacturer’s technicians (noting that Caterlink does not carry any replacement units for the Goods):
Radius of Warranty Coverage by Supplier:
- MOFFAT – 50km distance or 4 hours travel time from the nearest service centre. Moffat brands: Waldorf, Cobra, Blue Seal, Turbofan, Convotherm, Washtech, Paramount, Rieber, Crown, Merrychef.
- STODDART – 50km of travel from their nearest service agent. Stoddart brands: Electrolux, Koldtech, Woodson, Culinaire, Anets, Chillair.
- ROBAND – Furthest Supplier covers: North – Joondalup South – Rockingham East – Mundaring West – Fremantle
- FAGOR – 25Km radius from the metro area
- AJ BAKER – Around 50km from Perth
- GOLDSTEIN – Around 50km from Perth
- SKOPE – 100km from the technician’s base
- HOBART – No radius, if regional they will allocate to an approved contractor
- FED – Around 50km from Perth
- I.C.E – 50 km from Perth
- COMCATER – 50km from Perth (Excluding microwaves)
- BONN – Back to base warranty
- FSM – 50kms from the nearest CBD, after that travel is charged
- UNOX – If no local techs unit is back to base
- BIRKO – If no local techs unit is back to base
- ZIP – Will travel more than 50 Km from capital city (Perth) 1.5 hours each way
- B+S – 100km from the closest contractor
- ROBOT COUPE – Back to base warranty
- SEGAFREDO – Furthest Supplier covers (anything further is back to base): South- Mandurah North- Yanchep East- Armadale
- COATS DISTRIBUTOR – If no local techs unit is back to base
- BROMIC – 50 kms from Perth or Kalgoorlie (can assign jobs to local techs)
- OTHER – 50 kms from Perth