MEET PAT – LEASING TERMS AND CONDITIONS

 

1. GENERAL PROVISIONS

Parties:

Lessee shall include a person, company, firm, and council;

Provider shall, where the context admits or requires mean and include Products and Things Pty Ltd trading as Meet PAT™ ABN 42634465637 and/or any of its related bodies corporate as defined in Section 50 of the Corporations Act 2001 or any other person who or which is named as the party accepting the order.

 

Background

1. the Provider operates a water dispenser and advertising space business.

2. the Lessee wishes to appoint the Provider to design, supply, install, clean and maintain public bottle refill stations and Drinking fountains in the location/s outlined in the site map.

 

Part A: Scope

 

1. Term

Term of Agreement

  • The term of this Agreement commences on the Commencement Date and continues in force for a period of 5 years (Initial Term) unless terminated earlier or extended in accordance with the terms of this Agreement (Term).

Extension of Term

1.2 The Lessee and the Provider may, extend the period of this Agreement by any agreed period. Any extensions by the Lessee or Provider must be communicated in writing not less than 6 months before the expiry of the Initial Term or the then current Further Term, as the case may be.

 

2. Objectives

2.1 The Provider will design, supply, install and maintain Water Stations in a manner which enables the Lessee to achieve the following objectives (Objectives):

2.1.1 support the significant investment in providing public access to clean, free drinking water;

2.1.2 improved level of amenity across public spaces, creating attractive, interactive, inviting spaces.

2.1.3 creating new public, clean water access points that incorporate modern branding and marketing potential.

2.1.4 creating access to amenities that promote healthy lifestyles.

2.1.5 reducing the impact on the environment by supporting products that reduce single use bottle waste.

 

Part B: Location, Design, Supply and Installation.

 

3. Location

Location of Water Stations

3.1 the agreed  location for a New Water Station is defined in the “site location” map, in the leasing contract.

3.3 the Provider has the right to refuse the proposed location if it deems the site to be unsuitable after further investigation.

 

4. Supply and installation of Water Stations

4.1 the Provider must submit locations plans for the installation of the requested Water Station and/or Additional Structures at the specified Site (Site Plan) together with, if applicable an application for a building permit to the Lessee and the Council in whose Council Municipality the requested installation is to take place. The site plan must include the, following details:

4.1.1 a plan showing the area of a Site on which the Water Station and/or Additional Structure is to be installed;

4.1.2 details of the works proposed for the installation of the Water Station and/or Additional Structure, including, without limitation, structural computations and plans, details of any alterations to be made to the Site, the location of all underground services, the removal of any existing fixtures such as seats or shelters and any disturbance to any road, footpath, nature strip or other surface; and

4.2 details of the proposed occupational health and safety procedures and Site safety procedures for that Site.

4.3 After receiving the Building Plan, the Lessee may require that the Provider:

4.3.1 make any alteration to the Building Plan that is reasonably directed by the Lessee ; and

4.3.2 The Provider must not install a New Water Station or Additional Structure without the Lessee’s written approval of the relevant Building Plan, which approval may be withheld by the Lessee, acting reasonably.

 

5. Design, modifications and upgrading of Water Stations.

5.1 The Provider may modify the Design Specification at any time by written notice to the Lessee.

5.2 This includes:

5.2.1 Changing the water station model type.

5.2.2 Updating some or all the components.

5.2.2 Including additional features and technologies

 

6. Installation

 

Installation by the Provider.

6.1 If the Water Stations and/or any Additional Structure are to be installed by the Provider:

6.1.1 The Provider must perform, at its own cost, all preparatory works and provide Footings necessary for all New Water Stations and/or any Additional Structure to ensure that the supply and installation of all New Water Stations and/or Additional Structures comply with all Legislative Requirements.

6.2 Where the installation of a Water Station requires extraordinary cost as a direct result of the physical attributes of the Site, the Provider may notify the Lessee of such costs and the parties shall enter into discussions in good faith in respect of such costs and the parties may agree to:

6.2.1 determine that the Water Station should be installed at a different Site;

6.2.2 contribute to the additional cost of installation at the Site; or

6.2.3 determine that no Water Station will be installed at the Site;

6.3 If requested by the Lessee the Provider will remove and dispose of all Existing Water Stations and Additional Structures in accordance with the relevant OH&S guidelines.

6.4 Where the Provider installs a New Water Station or Additional Structure under this clause, it must clean, restore and make safe the Site on which the Water Station or Additional Structure is installed, including by doing the following:

6.4.1 full removal of the debris and rubbish at the Site;

6.4.2 ensuring the Site is left in a clean and tidy state;

6.4.3 where applicable, spreading quality topsoil over all disturbed areas within a nature strip and then seeding those areas; and

6.4.4 all other things reasonably necessary to ensure that the Site is clean, safe and otherwise complies with the requirements of this Agreement and the reasonable requirements of the relevant Council in respect of the Site.

 

Installation by the Lessee.

6.5 If the Water Stations and/or any Additional Structure are to be installed by the Lessee:

The Lessee must perform, at its own cost, all preparatory works and provide Footings necessary for all New Water Stations and/or any Additional Structure to ensure that the supply and installation of all New Water Stations and/or Additional Structures comply with all Legislative Requirements.

6.6 The installation must comply with the installation specifications given to the Lessee at the time of the contract.

 

7. Water supply charges

7.1 the Lessee must pay all water supply, rates, taxes, levies, charges, duties, assessments, impositions, fees and other like outgoings payable in respect of the Water Stations.

 

8. Water quality

8.1 It is the Lessee’s responsibility to insure the water supply is from a potable source.

8.2 The Provider takes no responsibility for the water quality delivered to the water stations.

8.3 If requested from the Lessee the Provider will supply water quality reports periodically as outlined in a separate agreement.

 

9. Additional Structures

Acknowledgement

9.1 The parties acknowledge that this Agreement does not give the Provider any right to install any

Additional Structures except in accordance with this clause 9.

 

Request for Additional Structures

9.2 The Provider may submit a request to the Lessee for the supply and installation of an Additional Structure at any time during the Term. The Providers request will specify the type of Additional Structure to be supplied and the Site at which the Additional Structure must be installed.

Design of Additional Structures

9.3 All Additional Structures must be supplied and installed in accordance with the relevant Design

Specification.

 

10. Acceptance and ownership

Upgrading and removal of Existing Water Stations

10.1 The Provider agrees and acknowledges that all Existing Water Stations and Additional Structures are owned by the Lessee and that nothing in this Agreement gives the Provider any right, title or interest in Existing Water Stations and Additional Structures existing at the date of this Agreement.

10.2 If requested by the Lessee the Provider will remove all Existing Water Stations and Additional Structures in accordance with the relevant OH&S guidelines.

10.3 All Existing Water Stations and Additional Structures will remain the property of the Lessee, unless written approval is given to the Provider to dispose of the Existing Water Stations and Additional Structures. At this point the Existing Water Stations and Additional Structures become the property of the provider for disposal.

 

New Water Stations

10.4 The New Water Station and/or Additional Structures will always remain the property of the Provider, under this lease agreement.

10.5 Upon installation by the Provider of any New Water Station and/or Additional Structures, the Provider shall notify the Lessee. The Lessee may inspect the Site on which that Water Station and/or

Additional Structure has been installed within 20 Business Days of the Provider’s notification and/or may request the relevant Council to conduct such inspection. If the Water Station and/or Additional Structure has been properly installed in accordance with the relevant Building Plan, Design Specification, Approved Design or other Approval, the Lessee shall accept the Water Station and/or Additional Structure. Upon acceptance of the installation of the Water Station and/or Additional Structure, or if the Lessee chooses not to inspect the relevant Site, upon the expiry of 20 Business Days from the date on which the Provider notified the Lessee of the installation. If the Lessee or the Council notifies the Provider that the Water Station has not been installed in accordance with the relevant Building Plan, Design Specification, Approved Design or Approval (as the case may be), then the Provider must undertake such remedial or additional work as is required to ensure compliance with the Building Plan, Design Specification, Approved Design or Approval (as the case may be). The Provider shall have a further 10 Business Days to undertake this remedial or additional work, after which the Lessee or the Council may inspect the Site. If the Provider has addressed any non-compliance, then the Lessee shall accept the installation. Otherwise, the Lessee shall direct the Provider to take any action that the Lessee deems

necessary to ensure that the Water Station complies with the Building Plan, Design Specification, Approved Design or Approval (as the case may be).

 

11. Relocation and removal.

 

Relocation

11.1 No Water Station or Additional Structure shall be relocated by or on behalf of the Lessee unless such relocation is at the Providers request or with the Providers written consent. Such consent may be withheld in the absolute discretion of the Provider.

 

Removal

11.2 No Water Station or Additional Structure shall be removed by or on behalf of the Lessee unless such relocation is at the Providers request or with the Providers written consent. Such consent may be withheld in the absolute discretion of the Provider

11.2 If the Lessee requires the Provider to remove any Water Station and any Additional structure for any other reasonable reason, including for safety reasons, to permit road or path works or other construction works to occur or if there is excessive vandalism to a particular Water Station. The Lessee will pay the Provider for the costs of removal.

11.3 Upon the removal of a Water Station, the Provider must, if requested by the Lessee:

11.3.1 securely store the Water Station, as the case may be, for the Lessee , at a reasonable cost, for which the  Lessee will pay the Provider; or

11.3.2 deliver the Water Station, as the case may be, to the  Lessee  or a third party as directed by the  Lessee . The cost of removal includes delivery distances of within 15 kilometres. The parties will agree the costs for delivery distances in excess of 15 kilometres.

 

Site restoration

11.4 If the Provider relocates or removes a Water Station, or Additional Structure under this clause 11, it must do so in a way that will permit reuse of the Site on which the relocated or removed Water Station or Additional Structure was installed, including by doing the following:

11.4.1 consult with the Council in whose Council Municipality the Site is located as to any requirements or guidelines the Council may have in relation to the restoration of the Site;

11.4.2 full removal of the Footings, debris and rubbish at the Site;

11.4.3 restoration of all surfaces at the Site in matching colour and texture;

11.4.4 ensuring that the Site is able to be accessed and used safely;

11.4.5 ensuring the Site is left in a clean and tidy state;

11.4.6 ensuring that all excavations are backfilled and compacted to minimise further subsidence;

11.4.7 where applicable, spreading quality topsoil over all disturbed areas within a nature strip and then seeding those areas; and

11.4.8 all other things reasonably necessary to rehabilitate the Site for further use.

11.5 If the removal is requested before the lease agreement expiry date the associated costs will be covered by the Lessee.

 

Part C: Advertising, Branding and Signage

 

12. Advertisements – Only Applicable for Leasing Option 2 – “Advertising”

Advertisements

12.1 Subject to the Provider paying the applicable Licence Fees and obtaining all Approvals to do so, the Provider may, during the Term, Advertise on or in, and affix Advertisements to or display or place

Advertisements on, all Existing Water Stations and New Water Stations. The Lessee will not, during the Term, authorise any other person to erect or display Advertisements on any Water Station which is the subject of this Agreement.

 

Guidelines

12.2 The Provider may submit guidelines in respect of obstructions to Advertisements on Water Stations. If the Lessee approves such guidelines, the Lessee shall circulate such guidelines to Councils and any other person considered relevant by the Lessee.

 

13. Restrictions on Advertising

Advertising quality

13.1 The Provider shall only display Advertisements which exhibit high quality graphic design and finish and which comply with the following:

13.1.1 all Legislative Requirements;

13.1.2 all voluntary codes of conduct established by the advertising industry; and

 

Prohibited Advertisements

13.2 The Provider must ensure that Advertisements:

13.2.1 do not depict political, religious, racist, sexually explicit or other subject matter which may reasonably be considered to be contentious;

13.2.2 do not depict subject matter which may reasonably be considered to be offensive or in bad taste;

13.2.3 do not resemble and are not capable of being confused with road traffic directional or information signs, either by shape, size or colour; and

13.2.4 are not detrimental to the interests of the Lessee.

13.3 Notwithstanding clause 13.2, the Lessee retains the right to reject or require the discontinuance of any Advertisement or a type of Advertisement that, in the reasonable opinion of the Lessee , is not suitable for security or safety reasons, or which promotes matters or items which, in the reasonable opinion of the  Lessee , are in bad taste, offensive, political or otherwise contentious, including without limitation, any Advertisement that:

13.3.1 depicts smoking and/or tobacco products, or does not comply with restrictions recommended by guidelines issued in respect of tobacco, alcohol and gambling; or

13.3.2 in the opinion of the  Lessee , is likely to be offensive.

13.4 If the Lessee requires the discontinuance of any Advertisement or type of Advertisement under clause 13.3, the Lessee will notify the Provider and the Provider must remove all such Advertisements within 48 hours of receiving such notification. The Lessee will not be liable for any loss or damage caused to or suffered by the Provider in connection with requiring the Provider to remove any Advertisement under this clause.

 

14. Lessee’s Advertising and signage

14.1 The Lessee agrees to the Providers advertising terms and conditions document.

14.2 If not leasing a water station through option1 “display own messages”. The Lessee may purchase advertising space from the Provider on advertising Water Stations at discount of 10% off from the Provider’s market rate Standard Advertising Period for the purpose of displaying any Advertisement, poster or signage provided by the Lessee.

 

15. Maintenance services

15.1 Subject to the Lessee continuing to engage the Provider to supply, install, clean, maintain and

Advertise on the Water Stations under this Agreement, the Provider will maintain and/or repair

Water stations as defined in this contract.

15.2 The Lessee’s agreement of the Providers maintenance services grants the Provider access to the site, without written approval.

15.3 The Provider must fully assess the condition of each Water Station every six months or monthly depending on the Term, with the first assessment to occur one month after the Commencement Date. This condition assessment must include an inspection of the following:

15.3.1 the structural condition of each Water Station, Additional Structure;

15.3.2 any damage to a Water Station, Additional Structure; and

15.3.3 any safety hazards present at any Water Station, or Site.

 

Part E: Fees and payment

 

16. Payment
Unless the Purchaser has a credit account with the Company, all payments are to be made by cheque, credit card or other cleared funds at the time of ordering the goods. If the Purchaser has a credit account, payment must be made in accordance with the terms set out in the Credit Accounts section.

 

17. Credit Accounts

17.1 Payment – If the Purchaser has a credit account, a 25% deposit must be paid within 7 working days of order and remaining payment must be made within 30 days of date of invoice or such other period (if any) as may have been agreed to in writing by the Company.

17.2 The Company may terminate a credit arrangement with the Purchaser at any time upon which all money owing to the Company will be immediately due and payable. If the Purchaser defaults in making payment to the Company in accordance with these terms and conditions, the Company may in its absolute discretion:

17.2.1. Charge the Purchaser interest calculated on the portion of the Purchaser’s account overdue from time to time at the rate of fifteen per cent (15%) per annum calculated daily; and

17.2.2. Require the Purchaser to reimburse the Company for all collection costs including legal costs incurred by the Company calculated on a solicitor and own Purchaser basis as a consequence of the Company instructing its solicitor to provide advice to it in connection with each default and/or to institute such recovery process as shall in the absolute discretion of the Company be appropriate in the circumstances.

17.3 Completed goods – If goods ordered by the Purchaser are required to be installed at the Purchaser’s nominated site and the Purchaser is neither willing nor able to make available the site for installation of the goods, the Purchaser shall be invoiced for the goods when the goods are ready for installation unless otherwise agreed in writing between the parties.

17.4 Insolvency and Default – If:

17.4.1 The Purchaser makes default in any payment due to the Company or in the performance and observance of any terms or conditions set out herein
17.4.2. A resolution is passed or proposed or a petition is presented or an application filed or an order made for the winding up or liquidation of the Purchaser
17.4.3 A receiver, receiver and manager or controller (as defined in the Corporations Law) is appointed of the property or any part of the property of the Purchaser
17.4.4 The Purchaser makes or proposes to make any arrangement with its creditors
17.4.5 The Purchaser is placed under administration or an administrator is appointed
17.4.6 Execution is levied upon the assets of the Purchaser for an amount in excess of $1000.00 and is not satisfied within seven (7) days
17.4.6 The Purchaser is the subject or a debtor’s or creditor’s petition in bankruptcy or is the subject of an Bankruptcy Notice then the Company may, without prejudice to any other remedy that may be available to the Company at its option with old further deliveries or cancel and arrangement between the Company and the Purchaser.

 

Part F: General

 

18. Personnel and subcontracting

18.1 The Provider must engage a sufficient number of Personnel with the necessary skills, expertise, qualifications and training for the purpose of providing the goods and services in accordance with the Service Levels under this Agreement.

 

19. Intellectual Property in design
19.1 All right, title and interest in and to any goods or materials in which copyright or other intellectual property rights exist created by the Provider for or supplied by the Provider to the Lessee shall, vest absolutely in and remain the sole property of the Provider. The supply of goods shall imply a license to the Lessee to use the same but for no other purpose. The Lessee undertakes not to utilise, copy, reproduce or disclose or permit others to utilise, copy, reproduce or disclose any such intellectual property without the prior written consent of the Provider.

 

20. Insurance

20.1 The Provider will ensure that throughout the Term it is insured with, or is the beneficiary under a policy with, a reputable insurance company for the types of insurance having the minimum cover as stipulated below:

20.2 public liability insurance covering Personal Injury and damage to or loss of property with a limit of not less than $20,000,000 for any one occurrence;

20.3 insurance for all motor vehicles the Provider or its Personnel may use in connection with performing its obligations under this Agreement of an amount adequate to cover the activities contemplated under this Agreement;

20.4 worker’s compensation insurance in respect of its employees and contractors to cover the maximum liability which may be imposed under the state laws from time to time; and

Any other insurance that the Provider is required to have by law in order to perform its obligations under this Agreement.

 

21. Matters beyond the Providers control

21.1 The Provider will not be liable for any failure or delay in the performance or delivery of its obligations where such failure or delay arises because of any matter beyond The Provider’s reasonable control, including fire, act of God, industrial dispute, strike, civil unrest, lockout, curtailment or cessation of traffic ordered by any government or authority, acts or omissions of third parties including Authorities, vandalism, criminal conduct, adverse weather that (in The Provider opinion acting reasonably) renders performance unsafe or impractical, natural disasters, access issues (including building closures or lock outs), loss of service by utility suppliers, telecommunications carriers or telecommunication service providers or where The Provider is unable to access infrastructure, or loss due to hardware failures within the normal operating risk (in this latter case other than to seek to diagnose the issue within 3-6 hours and repair within 24-48 hours).

21.2 Upon The Provider receiving notice of vandalism of a Water Station, The Provider will:

21.2.1 clean-up or remove the damage; and

21.2.1.1 in the event of breakage, repair the Water Station within a reasonable time frame;

 

22. Damages and leaks.

22.1 The Provider will not be liable for any flood or water damage caused from damage to a water station.

22.2 Any damages caused to the water Stations from the Lessee will be repaired and all costs associated will be paid for by the Lessee.

22.3 The Provider will not be liable for any associated water supply costs, caused from leaking connections.

22.4 The Provider will not be liable for any damage or injury due to improper use or installation.

 

23. Provider marketing

23.1 The Provider may take photographs and cinematograph films of the Purchaser’s goods, and reproduce, publish and communicate same, for the purpose of marketing and promoting the company and its services.

 

24. Termination

24.1 The Provider has the right to terminate the contract and remove the Water Station for any of the following reasons:

24.1.1 If the Water Station is routinely damaged from environmental, graffiti, vandalism, or any other causes.

24.1.2 If the advertising panels are damaged or stolen more than once.

24.1.3 If the Lessee is behind in payments.

24.1.4 If the site, paths, tracks, roads are modified to an extent that affects the suitability of the location.

24.1.5 Any act of Force Majeure.

 

25. End of Term services

Transition Out

25.1 Upon termination or expiry of the Agreement, the Provider will provide the End of Term Services. This involves the plan for removal and or extension of the contract.

 

26. Definitions and interpretation

26.1 In this Agreement the following definitions apply:

Additional Structures means objects or structures which are installed over, under or alongside water stations  which have a public use or are located in a public space, including, without limitation:

(a) litter or recycling bins;

(b) Shade structures

(c) bike racks;

(g) passenger information and timetable displays;

(h) tourist information units;

(j) poster bollards.

 

Advertise means to make any information generally or publicly known in any way (including, without limitation, through use of posters or any other printed material or paintings or any digital or electronic method of display of information).

 

Advertisement means any substance, material, object, mechanism, facility or configuration which is used to Advertise on a Water Station.

 

Agreement means the agreement set out in this document, including all its Schedules, as may be varied or amended from time to time in accordance with its terms.

 

Approvals means all approvals for the design, installation, relocation, removal and maintenance of

Water Stations or Additional Structures to be supplied, installed and maintained under this Agreement

and advertising on Water Stations, including:

(a) all necessary planning approvals, consents, licences or approvals required by relevant

Councils or Government authorities; and

(b) approval of water authorities for the connection of water to the Water Stations.

 

Water Stations means Existing Water Stations and New Water Stations. This can include drinking fountains, bottle refill stations and any other water dispensing device.

 

Footings means all works required to properly and effectively support a Water Station or any additional Structure including any mountings or bolts to keep the Water Station or Additional Structure in place.

Force Majeure means:

(a) an act of God;

(b) strike, lockout or other industrial disturbance or labour difficulty that do not affect only the

affected party;

(c) an act of war or terrorist incident;

(d) a civil disturbance or riot; or

(e) a fire, explosion or earthquake.

 

GST has the meaning given to it in A New Tax System (Goods and Services Tax) Act 1999 (Cth).

 

Installation Fee means the fee payable by the  Lessee to the Provider under clause 6 for the supply and installation of Water Stations and Additional Structures.

 

Intellectual Property Rights means all copyright, patents, patent applications, trade marks

(registrable or not), designs (registrable or not), eligible circuit layout rights, trade secrets, trade,business or company names, and other intellectual property rights.

 

Legislative Requirements includes:

(a) Acts, Ordinances, regulations, by-laws, rules, orders, awards and proclamations of the

Commonwealth and the State of Victoria or any other relevant authority;

(b) certificates, licences, consents, permits, approvals and requirements of organisations

having jurisdiction in connection with the carrying out of the work and provision of goods

and services under this Agreement; and

(c) fees and charges payable in connection with the foregoing.

 

Maintenance Fee means the fee payable by the Lessee to the Provider for cleaning and maintaining Water Stations and Additional Structures.

 

Personnel means the Provider’s employees, agents, officers or subcontractors engaged for the purposes of fulfilling the Provider’s obligations under this Agreement.

 

Site means the site or location of a Water Station or where a Water Station may be installed, as approved by the  Lessee .

 

Term means the Initial Term and any Further Terms.