MASTER FLEET FACILITY AGREEMENT
Date:
Customer name: Customer number:
Loan Offer
Standard Terms and Conditions
TABLE OF CONTENTS
Part 1 - Definitions and Interpretation ... 3
1. Interpretation ... 3
Part 2 - Finance Agreement Provisions... 7
2. Finance agreements ... 7
3. Delivery ... 7
4. Rent ... 7
5. Use of the vehicle ... 7
6. Registration... 8
7. Insurance ... 8
8. Damage or loss... 9
9. Repudiation ... 9
10. Expiry of finance agreement ... 10
11. Mitigation of loss... 11
Part 3 - Service and Management Provisions ... 13
12. Maintenance ... 13 13. Tyres... 14 14. TFM to renew registration ... 14 15. Fuel card ... 14 16. Emergency Services ... 15 17. Insurance... 15 18. Reporting ... 15 19. E-Tag... 15 20. Relief vehicle... 16 21. Mini-lease... 16
22. Managed finance agreement ... 16
23. Additional services ... 17
24. General ... 17
25. Customer’s financial obligations for services... 17
26. Termination ... 17
Part 4 - General Provisions ... 19
27. Acquisition services... 19 28. Disposal services... 19 29. Additional parties... 19 30. Examination ... 19 31. Customer's obligations... 19 32. Warranties... 20
33. Payments and taxes ... 20
34. Indemnity and costs ... 22
35. Notices... 23
36. TFM's rights... 24
37. Confidentiality... 24
38. Dealings, PPSA and variations ... 25
39. Guarantee and indemnity ... 26
40. Trust provisions... 26
41. Voluntary cessation ... 27
42. Dispute resolution ... 27
43. Governing law and jurisdiction ... 27
44. Counterparts... 27
Schedules Schedule 1 - Delivery Receipt ... 29
Schedule 2 - Related Corporation Nomination ... 31
Schedule 3 - New Guarantor Deed Poll... 33
1. INTERPRETATION 1.1 Definitions
Actual Usage means, on the day when a Vehicle is
returned under clauses 9.2(a) or 10.2(a) (and subject to clause 10.5), the number of kilometres shown on the odometer, less the number of kilometres (if any) specified as at the date of its Finance Agreement in its Finance Schedule, or the number of hours shown on the hourmeter for the Vehicle.
Adjusted Contract Usage is calculated for a Finance
Agreement on a day as follows:
(a) first, divide the number of whole months which have elapsed under that Finance Agreement up to that day by the number of months in its Finance Period, and
(b) second, multiply the resulting fraction by the Contract Usage.
The result of that multiplication is the Adjusted
Contract Usage.
Agreement means the terms and conditions of the
Master Fleet Facility Agreement between TFM, the Customer and the Guarantor as set out in the Details and this document.
Attorney means any attorney appointed under this
Agreement.
Authorised Person means each person named as an
Authorised Person in the Details (and any other person nominated by the Customer from time to time in accordance with clause 31.6(b)).
Authorised Service Centre means any such dealer
and service outlet as may be nominated by TFM from time to time.
Budgeted Costs means, for a Vehicle and a Finance
Agreement, those Service charges described in clause 25.1(b).
Business Day means any day on which TFM is open
for business in the State.
Casualty Amount means, for a Vehicle which has
suffered an event described in clauses 8.2(a), (b) or (c), the Termination Amount.
Commencement Date means:
(a) for a Finance Agreement and a Vehicle, the earlier of the date on which that Vehicle is first registered with the relevant State transport authority and the date on which TFM funds the purchase of that Vehicle; and
(b) for a Service Agreement for the provision of Service in connection with a Managed Finance Agreement or to a Customer separately, the date of the Finance Schedule for that Service Agreement.
Contract Usage means, for a Finance Agreement,
the number of kilometres or hours specified in its Finance Schedule.
Customer means:
(a) each party named in the Details as the Customer; and
(b) any corporation or affiliated entity of the party named in the Details as the Customer which has become a party to this Agreement by executing a Related Corporation Nomination Form.
Daily Rent means, for a day and a Finance
Agreement, the amount determined by dividing the Rent under that Finance Agreement by the number of days in the rental period for that Finance Agreement (as set out in its Finance Schedule).
Delivery Receipt means a completed form
substantially in accordance with Schedule 1.
Details means the document entitled "Master Fleet
Facility Agreement - Agreement Details" between TFM, the Customer and the Guarantor which includes details of the parties to this Agreement and any variations to this Agreement.
Excess Charge means, for a Finance Agreement, the
amount for each kilometre or hour specified in its Finance Schedule.
Fair Wear and Tear means such deterioration in the
repair, working order and appearance of a Vehicle as is reasonably consistent with the Customer's obligations to use and maintain the Vehicle in accordance with its Finance Agreement. It does not include any deterioration which TFM, acting reasonably and, where applicable, in accordance with the provisions for Fair Wear and Tear set out in the Fair Wear and Tear Guide, considers is not consistent with the Customer's obligations to use and maintain the Vehicle in accordance with its Finance Agreement.
Fair Wear and Tear Guide means the guidelines
issued by TFM which outline what TFM considers acceptable Fair Wear and Tear for a vehicle and is available on TFM Customer Portal.
Finance Agreement means:
(a) a Finance Lease; (b) an Operating Lease; (c) a Term Purchase; or (d) a Service Agreement.
Finance Lease means a lease of a Vehicle arising
from TFM's acceptance of an offer made under this Agreement to enter into a Finance Lease.
Finance Period means, for a Vehicle, the period
commencing on its Commencement Date and ending on the last day of the contract term specified in its Finance Schedule.
Finance Schedule means, for a Finance Agreement,
the quote prepared by TFM which sets out the details for that Finance Agreement and which becomes that Finance Schedule in accordance with clause 2.3.
Master Fleet Facility Agreement
Terms and Conditions
Financier means a bank or other financial institution
(named as Financier in a Finance Schedule) which has entered into a Managed Finance Agreement with the Customer.
Fixed Costs means those Service charges described
in clause 28.1(a).
Guaranteed Money means all moneys and damages
that are owing (actually or contingently) by the Customer to TFM under each Transaction Document now or in the future, or cease to be owing under any Insolvency law for any reason.
Guarantor means each party named in the Details
as the Guarantor and each person who executes a New Guarantor Deed Poll.
Insolvency or Insolvent includes receivership,
compromise, arrangement, amalgamation, scheme, administration, reconstruction, winding up, dissolution, assignment for the benefit of creditors, arrangement or compromise with creditors, actual or threatened cessation or suspension of business or payments or disposal of assets, bankruptcy or death.
Loss means any cost, expense, payment, charge, loss,
damage, liability, claim, action, proceeding, penalty, fine, judgment, order or other action. It includes legal costs on a full indemnity basis. It also includes any amount incurred because of the liquidation or re-employment of deposits or other funds acquired or contracted for by TFM to fund or maintain any Transaction Document or any amount (including loss of margin) and because of the reversing or termination of any agreement or arrangement entered into by TFM to hedge, fix or limit its effective cost of funding or maintaining any Transaction Document or amount.
Managed Finance Agreement means a lease or hire
purchase agreement between a Financier and the Customer as described in the Finance Schedule.
Market Value means, for a Vehicle on a day, the
amount which TFM estimates would be the net proceeds of sale by TFM for that Vehicle, after deducting all applicable costs and Taxes incurred or which would be incurred by TFM in connection with obtaining that estimate and the notional sale.
New Guarantor Deed Poll means a completed deed
substantially in accordance with Schedule 3.
Notified Usage means, for a Vehicle, the number of
kilometres or hours notified by the Customer to TFM under clause 9.2.
Operating Lease means a lease of a Vehicle arising
from TFM's acceptance of an offer made under this Agreement to enter into an Operating Lease.
Payment Date means, for a Finance Agreement,
each date specified in its Finance Schedule.
PPSA means the Personal Property Securities Act
2009 (Cth).
Quote means any document of the kind described
in clauses 2.1 and 2.2.
Recharge Costs means, for a Vehicle and a Finance
Agreement, those Service charges described in clause 25.1(c).
Related Corporation Nomination Form means a
completed form substantially in accordance with Schedule 2.
Rent means, for a Vehicle and a Finance Agreement,
the periodic amount specified in its Finance Schedule.
Residual Value means, for a Vehicle and a Finance
Lease, the amount specified in its Finance Schedule.
Security Interest includes any mortgage, pledge,
lien or charge or any security or preferential interest or arrangement of any kind. It also includes: (a) anything which gives a creditor priority to other
creditors with respect to any asset; and (b) retention of title other than in the ordinary
course of day-to-day trading and a deposit of money by way of security.
(c) any security interest within the meaning of section 12 of the PPSA.
Service means a service provided, or to be provided,
either in connection with a Finance Lease, a Term Purchase, an Operating Lease or a Managed Finance Agreement or to a Customer separately, in each case as specified by the Customer in a Finance Schedule..
Service Agreement means the provision of Services
either in connection with a Finance Lease, a Term Purchase, an Operating Lease or a Managed Finance Agreement or to a Customer separately, in each case arising from TFM's acceptance of an offer made under this Agreement to enter into a Service Agreement.
Service Records means, for a Vehicle, all technical
data, manufacturer's handbook, manuals, log books, insurance documents and other records (whether kept or to be kept in accordance with the requirements of any governmental agency or otherwise) relating to that Vehicle or any part of it.
Service Reimbursement Amount means the amount
necessary to reimburse TFM for the actual costs which it has incurred in providing Services for a Vehicle under a Finance Agreement up to the time when its Finance Agreement expires or terminates and which TFM certifies has not been recouped by it from payments which it has received under clauses 27.2(a)(i) and 27.3.
State means, for a Vehicle, the State or Territory
where the Vehicle is registered or, where a Vehicle is not registrable, the state or territory where the Vehicle is predominantly used.
Tax means any tax (including any tax in the nature
of a goods and services tax), rate, levy, impost or duty (other than a tax on the net income of TFM) and any interest, penalty, fine or expense relating to any of them.
Termination Amount means, for a Vehicle and a
Finance Agreement on a day, the aggregate of: (a) for a Finance Agreement which is an Operating
Lease, a Finance Lease or a Term Purchase, the amount calculated for the Vehicle by TFM which, on that day, equals the sum of the principal and interest component of each instalment of Rent that TFM determines relates to that Vehicle and is due for payment under its Finance Agreement after that day; and
(b) for a Finance Agreement which is an Operating Lease, the Market Value of that Vehicle as it would have been at the expiry of that Operating Lease had the Customer not repudiated that Operating Lease; and
(c) for a Finance Agreement which is a Finance Lease, the Residual Value of that Vehicle, in each case, discounted to a present value on that day by applying a discount rate equal to 75% of the implicit interest rate used by TFM to calculate the principal and interest component of each instalment of Rent for that Vehicle payable under that Finance Agreement.
Term Purchase means a hire of a Vehicle arising from
TFM's acceptance of an offer made under this Agreement to enter into a Term Purchase.
TFM means Toyota Fleet Management, a division of
Toyota Finance Australia Limited ABN 48 002 435 181.
TFM Fleet Online means, for a Customer which
selects TFM Fleet Online in the Details, the online fleet portal operated by TFM and provided to the Customer in accordance with the document entitled "Access Agreement - TFM Fleet Online" between TFM and the Customer, a copy of which is set out in Schedule 4.
Transaction Document means:
(a) this Agreement; (b) a Finance Agreement; (c) a Finance Schedule; (d) a Delivery Receipt;
(e) a Related Corporation Nomination Form; (f) a New Guarantor Deed Poll;
(g) for a Customer who selects TFM Fleet Online in the Details, the Access Agreement - TFM Fleet Online;
(h) a document including a Security Interest which secures any obligations of a Transaction Party under this Agreement; or
(i) a document or agreement entered into for the purpose of amending or novating any of the above or which TFM and the Customer agree is a Transaction Document.
Transaction Party means any Customer or any
Guarantor.
Trust means every instrument (whether made
before or after the date of this Agreement) under which a Transaction Party is a trustee (whether alone or with any other person, and whether TFM has, or does not have, notice of the Trust).
Vehicle means, in relation to any Finance Agreement,
each motor vehicle or other good as described in its Finance Schedule and/or specifically identified in the Delivery Receipt, including any permitted parts and accessories fitted to the Vehicle and other attached items, Service Records and any replacement, substitute or relief vehicle or good acquired with the proceeds of any insurance,
indemnity, compensation or other arrangement. To the extent of any inconsistency between the Finance Schedule and the Delivery Receipt, the Delivery Receipt prevails.
1.2 General
Headings are for convenience only and do not affect interpretation. The following rules apply unless the context requires otherwise.
(a) The singular includes the plural and the converse.
(b) A gender includes all genders.
(c) Where a word or phrase is defined, its other grammatical forms have a corresponding meaning.
(d) A reference to a person, corporation, trust, partnership, unincorporated body or other entity includes any of them.
(e) A reference to a clause, annexure or schedule is a reference to a clause of, or annexure or schedule to, this Agreement.
(f) A reference to a party to a Transaction Document or another agreement or document includes the party's successors and permitted substitutes or assigns.
(g) A reference to legislation or to a provision of legislation includes a modification or re-enactment of it, a legislative provision substituted for it and a regulation or statutory instrument issued under it.
(h) A reference to writing includes communications using TFM Fleet Online, electronic mail, facsimile transmission and any means of reproducing words in a tangible and permanently visible form.
(i) A reference to conduct includes an omission, statement or undertaking, whether or not in writing.
(j) The meaning of terms is not limited by specific examples introduced by "including" or "for example" or similar expressions.
(k) All references to time are to time in the State. (l) A reference to a right or obligation of any two or more Customers or Guarantors confers that right, or imposes that obligation, as the case may be, jointly and severally.
(m) If there are two or more Customers or Guarantors, a reference to:
(i) "the Customer" means "each Customer" or, where the context requires, "any Customer" or "either Customer" (as appropriate); (ii) "the Guarantor" means "each Guarantor" or,
where the context requires, "any Guarantor" or "either Guarantor" (as appropriate). (n) A reference to "dollars" or "$" is to Australian
currency.
(o) All obligations are taken to be required to be performed duly and punctually.
1.3 Document or agreement A reference to:
(a) an agreement includes a Security Interest, guarantee, indemnity or other third party assurance, undertaking, deed, agreement or legally enforceable arrangement whether or not in writing; and
(b) a document includes an agreement (as so defined) in writing or a certificate, notice, instrument or document.
A reference to a specific agreement or document (including an annexure or a Schedule to this Agreement) includes it as amended, varied, novated, supplemented or replaced from time to time, except to the extent prohibited by a Transaction Document.
1.4 Accounting terms
Accounting terms, at any time, are to be interpreted according to accounting principles and practices applying by law or otherwise generally accepted in Australia at that time, consistently applied.
1.5 Quote and Finance Schedule
A Quote and a Finance Schedule may each be in original or electronic form. They may also be prepared on the same document.
PART 2 – FINANCE AGREEMENT PROVISIONS
2. FINANCE AGREEMENTS 2.1 Quote
If the Customer wants to enter into a Finance Agreement with TFM, the Customer may request TFM to provide a Quote for the proposed Finance Agreement. TFM may then prepare a Quote setting out (as applicable):
(a) the nature of the proposed Finance Agreement; (b) particulars of the proposed Vehicle;
(c) the proposed Services that are to apply; (d) the variable terms for the proposed Service
Agreement; and
(e) such other matters as may be appropriate to regulate the Finance Agreement.
2.2 Variation of Quote
A Quote does not constitute an offer by TFM to the Customer at any time before TFM accepts an offer under clause 2.3. TFM may vary or revoke a Quote. 2.3 Making a new Finance Agreement
(a) If the Customer wants to enter into a Finance Agreement with TFM, the Customer must give TFM a Finance Schedule signed by an Authorised Person. TFM consents to the Customer signing by an Authorised Person marking an electronic duplicate of the Finance Schedule.
(b) The Customer must specify in the Finance Schedule, for each Vehicle specified in that Finance Schedule, the type of Finance Agreement which the Customer wants to enter into with TFM.
(c) The delivery of a signed Finance Schedule will constitute an irrevocable offer by the Customer to enter into the Finance Agreement specified in that Finance Schedule with TFM. TFM may accept or decline that offer in its absolute discretion without giving any reason and may make any acceptance dependent on the Customer satisfying stated conditions.
(d) TFM accepts an offer under clause 2.3(a) by: (i) in the case of a Finance Lease, Term
Purchase, Operating Lease or a Service Agreement for a Vehicle, ordering the Vehicle. That acceptance is effective without a notice to the Customer;
(ii) in the case of a Service Agreement for the provision of Services in connection with a Managed Finance Agreement or to a Customer separately, providing a Service. (e) A Finance Agreement comprises this Agreement
and each related Transaction Document. 2.4 Term
A Finance Agreement begins on the Commencement Date and ends on the last day of the Finance Period.
3. DELIVERY
(a) The Customer must obtain delivery of the Vehicle from the dealer identified in the Finance Schedule or such other place specified by TFM, within 5 Business Days of the Commencement Date and must promptly provide TFM with a Delivery Receipt.
(b) The Customer authorises a person which it nominates in a Finance Schedule as a driver to sign the Delivery Receipt for the Vehicle on behalf of the Customer.
(c) If the Customer fails to take delivery of the Vehicle in accordance with clause 3(a), TFM may treat that failure as the Customer's repudiation of the Finance Agreement for that Vehicle and immediately terminate that Finance Agreement by notice to the Customer. If this happens, the Customer must pay TFM as liquidated damages for loss of bargain an amount equal to TFM’s loss of profit on the transaction constituted by that Finance Agreement plus any Loss incurred by TFM in connection with that termination. (d) TFM is not liable for any failure or delay by the
Customer in obtaining delivery of the Vehicle unless such failure or delay is caused by TFM’s wilful and unreasonable refusal to permit the Vehicle to be delivered or to pay the supplier for the Vehicle.
4. RENT 4.1 Rent
The Customer must pay the Rent to TFM on each Payment Date.
4.2 Contract Usage
TFM calculates the Rent for a Finance Lease or Operating Lease on the basis that the Vehicle will travel no more than the Contract Usage.
At any time during the Finance Period, TFM may review the number of kilometres travelled and/or hours used by a Vehicle. If the number of kilometres travelled and/or hours used at that time is greater than the Adjusted Contract Usage at that time, TFM may:
(a) revise the Contract Usage and the revised Contract Usage will apply for the balance of the Finance Period; and
(b) recalculate the Rent to reflect the revised allowance and the revised Rent will apply for the balance of the Finance Period.
5. USE OF THE VEHICLE 5.1 Property of TFM
(a) The Vehicle will always be the property of TFM. The Customer only has a right to use it.
(b) The Customer must take all steps which TFM asks it to take to protect the interest of TFM in the Vehicle. When ownership of the Vehicle is relevant the Customer must make clear to other people that TFM owns the Vehicle.
5.2 Particular action required to protect title Without limiting clause 5.1, the Customer must: (a) not install anything on or in the Vehicle
(including a part or accessory) which is inconsistent with the rights of TFM in the Vehicle;
(b) immediately inform TFM of any seizure or attempted seizure of a Vehicle; and
(c) not do or allow anything likely to jeopardise the rights of TFM in a Vehicle.
5.3 Quiet Enjoyment
TFM may not interfere with the Customer’s possession or use of a Vehicle unless a Transaction Document allows it.
5.4 Location of the Vehicle
The Customer must keep the Vehicle:
(a) under its control and not permanently part with possession; and
(b) secure against theft or damage while it is not in use.
The Customer must not permanently remove the Vehicle from the State without notifying TFM in advance.
5.5 Compliance with laws
The Customer must comply with all laws including registration and licensing requirements relating to the Vehicle or its use.
5.6 Use
The Customer must make sure that the Vehicle is used:
(a) for the purpose for which it is designed and in accordance with the manufacturer’s instructions and recommendations; and
(b) safely and without risk to the health or property of any person.
5.7 Maintenance
Subject to clauses 12.1, 12.2 or 12.3 the Customer must keep the Vehicle in good repair and working order (Fair Wear and Tear excepted), and deliver the Vehicle to an Authorised Service Centre for periodic inspection, maintenance and repairs at the times specified, and in accordance with, the manufacturer's service booklet.
5.8 Alterations
The Customer must not, without TFM’s consent: (a) make any alteration or addition to, or interfere
with, the Vehicle;
(b) without limiting clause 5.8(a), interfere in any way with or disconnect the Vehicle’s odometer or hourmeter; or
(c) install anything on or in the Vehicle (including a part or accessory).
If TFM consents, the Customer must ensure that only an Authorised Service Centre makes any such alteration, addition or installation. Everything added to or installed on, or in, the Vehicle will be part of the Vehicle and TFM’s property. This includes all parts and accessories.
The Customer must immediately report to TFM any damage or defect in the odometer or hourmeter and promptly arrange for it to be rectified.
5.9 Corporate advertising
The Customer may apply to or attach on the Vehicle any corporate advertising signs, lettering, logos and/or insignias. The Customer must remove them without damage to the Vehicle at the end of the Finance Period.
6. REGISTRATION
6.1 Customer to register Vehicle
Where a Vehicle is registrable, the Customer must, during the Finance Period (and subject to clause 14.1):
(a) arrange for an inspection of the Vehicle where such inspection is required by the transport authority in the State; and
(b) register the Vehicle in the Customer's name or such other name requested by TFM and with an office of the Customer as the registered address; and
(c) take out compulsory third party insurance for the Vehicle.
6.2 Customer not to change details
(a) The Customer must not, without TFM's consent, change the registration number of the Vehicle. (b) If TFM gives its consent under clause 6.2(a), the Customer must inform TFM promptly upon a change in the registration number of the Vehicle.
7. INSURANCE
7.1 Policies to be taken out
The Customer must take out the following insurances:
(a) subject to clause 17(a), loss, theft or destruction of, or damage to, the Vehicle for its full replacement value;
(b) public liability for personal injury, death, property damage, economic loss and other damage arising in connection with the Vehicle or its use for an amount not less than $10,000,000 or any higher amount which TFM reasonably requires; and
(c) all other risks which TFM reasonably requires or which must be covered by law.
7.2 Authority
(a) to receive all money payable in relation to the insurance policy referred to in clause 7.1(a) or payable by any other person in respect of an insurable event under that clause. For this purpose (in addition to clause 36.8) the Customer appoints TFM as its attorney to make, recover and/or compromise in its name any claim under that insurance or against any person; and
(b) to appropriate any of that money at TFM's option towards repair and/or restoration of the Vehicle or towards any money payable by the Customer under the Finance Agreement for that Vehicle. 7.3 Insurance provisions
The Customer must:
(a) take out each insurance with a reputable insurance company;
(b) pay on time all premiums, calls, contributions or other sums of money necessary to maintain all such insurances;
(c) have TFM's interest noted on each insurance policy;
(d) give TFM any information it requests about any insurance, including evidence of the policy, certificate of currency, proof of payment of the premium and details of any related insurance. The Customer must not:
(e) do or fail to do anything which might allow an insurer to refuse any claim under any insurance; (f) vary any insurance without TFM's consent; or (g) enforce, conduct, settle or compromise any claim
without TFM's consent. 7.4 Failure to take out insurance
If the Customer does not take out any insurance as required by a Transaction Document, TFM may take out that insurance itself. The Customer must pay the premiums associated with that insurance to TFM on demand.
8. DAMAGE OR LOSS
8.1 Customer must restore damaged Vehicle
If the Vehicle is damaged (but not to the extent that an insurer or TFM decides that its repair is impractical or uneconomic), the Customer must restore it as far as possible to the same condition that it was in before the damage occurred.
The Customer must apply any money received from an insurer or any other person in connection with the damage to its obligation to restore the Vehicle. 8.2 Total loss of Vehicle
The Customer must immediately notify TFM if the Vehicle is:
(a) lost; (b) stolen; or
(c) destroyed or damaged to such an extent that an insurer or TFM decides that its repair is impractical or uneconomic.
8.3 Customer's obligations following a total loss of Vehicle
If an event described in clauses 8.2(a), (b) or (c) occurs the Customer must:
(a) lodge the necessary insurance forms with its insurer for its claim as soon as possible after the event and, upon request, provide TFM with a copy of those forms within five Business Days of lodgement; and
(b) on the next Payment Date, pay to TFM: (i) the Casualty Amount for the affected
Vehicle less any amount which TFM has received (before that Payment Date) from an insurer or any other person as a result of the event; and
(ii) the Service Reimbursement Amount and any other amount which it still owes under the Finance Agreement for the affected Vehicle, including any amount which it owes under clauses 28 and 34.
The Customer must account immediately to TFM for any insurance proceeds which (despite clause 7.2) it receives.
8.4 Consequential arrangements
The Finance Agreement for the affected Vehicle terminates on the day on which the Customer complies with clause 8.3. TFM will refund to the Customer any amount which it receives from an insurer or other person as a result of the event described in clauses 8.2(a), (b) or (c), after the Customer has made its payment under clause 8.3, and up to the amount which the Customer paid under clause 8.3(b)(i).
TFM's obligation to provide Services in relation to the affected Vehicle ceases when an event described in clauses 8.2(a), (b) or (c) occurs.
TFM will also then notify the Customer of the revised Rent and Service charges (and related Taxes) which are payable on the Vehicles not affected.
8.5 Insurance proceeds not received
Where TFM does not receive insurance proceeds within twenty Business Days of the event described in clauses 8.2(a), (b) or (c) occurring, the Customer must pay the Casualty Amount to TFM on demand. 8.6 Risks
The Customer assumes all risks and liabilities for the Vehicle and its use, maintenance, repair and storage.
9. REPUDIATION
9.1 Fundamental obligations
(a) In addition to clause 3(c) these are the fundamental obligations of a Finance Agreement:
(i) The Customer must pay each amount which it owes under the Finance Agreement on time (or where no due date for payment is specified, within 7 days of notice from TFM requiring payment) and as required by the Finance Agreement.
(ii) The Customer must comply with its obligations under clauses 5, 6, 7, 26, 31.1 and 31.4.
(iii) A Transaction Party must not become Insolvent.
(iv) Except where the Customer is a listed public company, there must not be a sale, transfer or other disposition of any of the shares in the capital of the Customer which has the effect of altering the effective control of the Customer without TFM's prior consent. (v) The Customer's financial position must not, in the reasonable opinion of TFM, become unsatisfactory.
(vi) The Customer's ability to maintain its obligations under each Transaction Document must not, in the reasonable opinion of TFM, become jeopardised or threatened.
(vii) The Customer must not cause or permit any event or circumstance to arise which would entitle TFM to terminate any other agreement or arrangement which it has entered into the Customer.
(b) If a fundamental obligation of a Finance Agreement is not complied with and, if the non-compliance can be remedied, it is not remedied within 10 Business Days of notice from TFM requiring its remedy, then on the expiry of that 10 Business Day period the Customer will be taken to have repudiated that Finance Agreement and each other Transaction Document.
Despite anything else which the Customer and TFM may have agreed, the Customer will also be taken to have repudiated every other agreement between the Customer and TFM relating to the lease, hire, finance or maintenance of vehicles or provision of services in connection with vehicles.
TFM may then accept any of those repudiations by giving the Customer a notice terminating any relevant agreement.
(c) TFM’s obligation to provide Services for each applicable Vehicle ceases when it gives the Customer a notice of termination.
9.2 Obligations following repudiation
If TFM gives the Customer a notice under clause 9.1(b) the Customer must immediately, for each applicable Vehicle, notify TFM of the number of kilometres shown on the odometer or the number of hours shown on the hourmeter for the Vehicle as at the date of that notice and do all of the following things:
(a) return the Vehicle in good repair and working order (Fair Wear and Tear excepted) to the place that TFM nominates;
(b) sign and hand over with the Vehicle all certificates and documents necessary to transfer the registration or licence of the Vehicle to the person that TFM nominates;
(c) if applicable, pay to TFM the amount which it certifies is necessary to restore the Vehicle to good repair and working order (Fair Wear and Tear excepted);
(d) if applicable, pay to TFM the Excess Charge for each kilometre or hour by which the Actual Usage exceeds the Notified Usage;
(e) for a Term Purchase or a Finance Lease, pay to TFM, as liquidated damages for loss of bargain, the Termination Amount;
(f) for an Operating Lease, pay to TFM, as liquidated damages for loss of bargain, any deficiency that arises should the Market Value of the Vehicle as at the date of that notice be less than the Termination Amount; and
(g) pay to TFM the Service Reimbursement Amount and any other amount which it still owes under the Finance Agreement for that Vehicle, including any amount which it owes under clauses 28 and 34.
If the notice which TFM gives the Customer also applies to an agreement other than a Transaction Document, the Customer must also do whatever it is required to do under that agreement, or which TFM is entitled to require it to do, as a consequence of the Customer's repudiation of it.
9.3 Reinstatement
After it accepts the Customer’s repudiation of a Finance Agreement and each other Transaction Document, TFM may, in its absolute discretion, still permit the Customer to reinstate that Finance Agreement and each other Transaction Document. If TFM permits the Customer to reinstate a Finance Agreement or a Transaction Document the Customer would have to immediately:
(a) pay each overdue amount due under that Finance Agreement or Transaction Document (calculated as if the Customer had not repudiated that Finance Agreement or Transaction Document); and
(b) remedy any other fundamental obligation which it has not complied with.
TFM may impose other conditions.
10. EXPIRY OF FINANCE AGREEMENT 10.1 Expiry of Finance Agreement
TFM will contact the Customer before the expiry of a Finance Agreement (except a Finance Agreement which is a Term Purchase) and obtain information about whether the Customer wishes, on expiry of that Finance Agreement, to:
(a) return the Vehicle;
(b) re-finance the Vehicle by entering into a new Finance Agreement or another agreement for that Vehicle for a further term; or
10.2 Customer's obligations on expiry
On the last day of a Finance Period for a Finance Lease or an Operating Lease the Customer must: (a) return the Vehicle in good repair and working
order (Fair Wear and Tear excepted) to the place that TFM nominates; and
(b) sign and hand over with the Vehicle all certificates and documents necessary to transfer the registration or licence of the Vehicle to the person that TFM nominates.
Upon notification by TFM, the Customer must then pay the following amounts to TFM:
(c) if applicable, the amount which TFM certifies is necessary to restore the Vehicle to good repair and working order (Fair Wear and Tear excepted);
(d) the Excess Charge for each kilometre or hour by which the Actual Usage exceeds the Contract Usage; and
(e) any other amount which it still owes under that Finance Agreement, including any amount which it owes under clauses 28 and 34.
10.3 Holding over
If the Customer does not return the Vehicle on the last day of a Finance Period for a Finance Lease or an Operating Lease:
(a) TFM may, in its absolute discretion, extend the Finance Period on a daily basis; and
(b) the Customer must pay rent to TFM, on demand, for each day until the Customer returns the Vehicle to TFM, in an amount for each day equal to the Daily Rent.
TFM may, at any time in its absolute discretion, demand that the Vehicle be immediately returned to it.
10.4 Term Purchase
If the Customer has complied with all its obligations under a Term Purchase on its last Payment Date, the Customer will be taken to have purchased that Vehicle by paying the following amounts to TFM when notified by TFM:
(a) the Excess Charge for each kilometre or hour by which the Actual Usage exceeds the Contract Usage; and
(b) any other amount which it still owes under that Term Purchase.
TFM will transfer ownership of the Vehicle to the Customer when it receives those amounts.
10.5 Actual Usage
(a) If at any time the odometer fails to function then TFM will calculate the Actual Usage on the basis of the daily average of kilometres travelled by the Vehicle in respect of the period between the two services of the Vehicle immediately preceding the day on which TFM gives the Customer a notice under clause 9.1(b) or the last day of the Finance Period.
(b) If at any time the hourmeter fails to function then TFM will calculate the Actual Usage on the basis of the daily average of hours travelled by the Vehicle in respect of the period between the two services of the Vehicle immediately preceding the day on which TFM gives the Customer a notice under clause 9.1(b) or the last day of the Finance Period.
11. MITIGATION OF LOSS 11.1 Disposal/Market Value
(a) As soon as practicable after the Customer complies with its obligations under clause 9.2 for a Vehicle under a Finance Lease or Term Purchase or the Customer returns a Vehicle under a Finance Lease to TFM under clause 10.2(a), TFM must either:
(i) offer the Vehicle for sale at a public auction; or
(ii) attempt to re-lease or re-hire the Vehicle. (b) If it is impossible or impracticable for TFM to sell, re-lease or re-hire a Vehicle within 60 days after its return to TFM, TFM will determine the Market Value of the Vehicle as at the day it was returned to TFM.
11.2 Reimbursement to Customer
Where, for a Vehicle under a Term Purchase or Finance Lease, the Customer has complied with its obligations under clause 9.2, TFM will reimburse to the Customer the net amount which it receives under clause 11.1(a) (after deducting all applicable costs and Taxes incurred by TFM in connection with its need to sell, re-lease or re-hire the Vehicle) or an amount equal to the determined Market Value under clause 11.1(b) up to its Termination Amount. 11.3 TFM’s position
TFM is not liable in negligence or otherwise for any failure or delay in mitigating its loss including in selling, re-leasing, re-hiring, determining the Market Value or recovering possession of a Vehicle or because it does not obtain the best available amount by doing one of these things.
12. MAINTENANCE 12.1 Routine maintenance
(only scheduled maintenance)
Where the Customer selects routine maintenance as a Service for a Vehicle in a Finance Schedule, subject to clauses 12.3 and 12.4, TFM will pay for all normal preventative maintenance services (in accordance with the manufacturer's handbook) by an Authorised Service Centre required to be carried out during the Finance Period. However, TFM will not pay for:
(a) the repair of damage caused by continuing to drive a Vehicle after a fault has occurred which the driver should have been aware of;
(b) ordinary wear and tear which does not affect the safety or use of the Vehicle;
(c) the repair of damage caused by contaminated fuel or fuel which is not specified in the manufacturer's handbook as appropriate for the Vehicle;
(d) the maintenance or repair of non-factory fitted parts or accessories (including any electrical, computer, entertainment, navigation or communication system in the Vehicle, truck bodies, refrigeration units, Power Take Off Units, cranes etc.) and repairs other than as specified in the manufacturer's handbook;
(e) the replacement of batteries;
(f) the maintenance or repair of such other items as TFM and the Customer may agree should be excluded; and
(g) in the case of a Vehicle which is the subject of a Managed Finance Agreement, accidental damage to or a defect or fault in the Vehicle, present before the commencement of the Service Agreement for that Managed Finance Agreement.
12.2 Full maintenance
Where the Customer selects full maintenance as a Service for a Vehicle in a Finance Schedule, subject to clauses 12.3 and 12.4, TFM will pay for all normal preventative maintenance services (in accordance with the manufacturer's handbook) by an Authorised Service Centre required to be carried out during the Finance Period together with corrective repairs, maintenance and service (including major breakdown repair) of the Vehicle necessary to maintain, so far as practicable, the Vehicle in good repair and working order (Fair Wear and Tear excepted), including repairs, maintenance and service to:
(a) motor; (b) transmission; (c) drive line;
(d) braking system including reline and overhaul of components;
(e) cooling system including hoses, radiators, belts and vents;
(f) any factory or, when the Vehicle is delivered, dealer fitted electrical, computer, entertainment, navigation or communication system including wires, fuses, globes, switches and batteries; (g) exhaust system;
(h) oil and water leaks, including gaskets, welsh plugs and fans;
(i) air-conditioning and heater components including re-gas;
(j) suspension components; and (k) fuel systems.
12.3 Abuse of Vehicle
TFM is not obliged or required to pay for any costs incurred in relation to any inspection, maintenance or repair carried out on a Vehicle:
(a) which in the reasonable opinion of TFM or the Authorised Service Centre, is caused by the misuse, abuse or neglect of the Vehicle or driving in a manner or in conditions not considered by TFM to be normal;
(b) which is not carried out by an Authorised Service Centre;
(c) which arises because the Customer does not have the Vehicle inspected, maintained or repaired at the times recommended in the manufacturer's handbook; or
(d) where the Vehicle has travelled in excess of the Adjusted Contract Usage at the time the inspection, maintenance or repair is carried out. The Customer must reimburse TFM on demand for the proportion of any payment made by TFM for inspection, maintenance or repairs which, in TFM's opinion, was made (except for Fair Wear and Tear) because of a circumstance described in clauses 12.3(a), (b), (c) or (d).
12.4 Maintenance not covered
The obligations of TFM under clauses 12.1 or 12.2 do not include or extend to, and the Customer is responsible for:
(a) any damage caused by accident, fire, storm, tempest, theft, malicious destruction or damage and such other insurable risks as TFM may reasonably stipulate;
(b) any defects, damage or want of repair covered by a third party warranty or resulting from or occurring during any breach by the Customer of its obligations;
(c) (except as set out in clause 13) tyre replacement; (d) (except as set out in clause 15) all fuel charges; (e) the regular wash and polish of the Vehicle; (f) arranging for the transportation or towing of
the Vehicle when it has become unfit for use to an Authorised Service Centre. This clause 12.4(f) does not affect the Customer's entitlement to roadside assistance in accordance with clauses 16.1 or 16.3;
(g) the maintenance or repair of non-factory or non-dealer fitted parts or accessories (including any cranes, hoists or any other ancillary items) for a Finance Agreement for a Vehicle specified in its Finance Schedule as Fully Maintained Cab Chassis Only.
13. TYRES
Where the Customer selects replacement tyres as a Service for a Vehicle in a Finance Schedule, TFM will during the Finance Period pay for replacement tyres and tubes (in the same specification and quality as originally fitted to the Vehicle unless the same specification and quality is no longer available in which case the replacement tyre or tube will be of a comparable specification and quality) for that Vehicle (up to the number specified in the Finance Schedule for that Vehicle) which have been determined by the Authorised Service Centre to be reasonably necessary.
14. TFM TO RENEW REGISTRATION 14.1 TFM to register Vehicle
Where the Customer selects registration renewals and CTP insurance renewals as a Service for a Vehicle in a Finance Schedule TFM will, during the Finance Period, renew the Vehicle’s registration (in the Customer's name or such other name requested by TFM and with the office of TFM which it specifies as the registered address) and renew the compulsory third party insurance for the Vehicle up to, in each case, the number of renewals specified in the Finance Schedule. The Customer must take any steps in connection with registration or compulsory third party insurance as TFM requests, including arranging for an inspection of the Vehicle as may be required by the transport authority in the State.
14.2 Notices
TFM will send to the Customer any notices sent to its office as soon as practicable after receipt. TFM is not liable for any Loss caused by TFM's delay in forwarding a notice to the Customer, except where such Loss is caused by a wilful act or omission or negligence of TFM.
14.3 Authority to open mail
The Customer authorises TFM to open all mail which TFM may receive in the name of the Customer (or such other name requested by TFM) by virtue of TFM's office appearing as the registered address including mail relating to registration, compulsory third party insurance and infringement notices. 14.4 Infringement notice management
Subject to the Customer selecting registration renewals and CTP insurance renewals as a Service for a Vehicle in a Finance Schedule, TFM will during the Finance Period forward parking, speeding and red light camera fines to the Customer for identification of the driver. If the driver does not pay the fine and a judgment for the fine is received by TFM, then TFM will pay the fine to ensure that the Customer's Vehicle is not deregistered and charge the fine back to the Customer.
The Customer acknowledges that it is an offence to, and must not, supply incorrect or misleading information to the traffic authorities.
15. FUEL CARD 15.1 Fuel card
Where the Customer selects a fuel card as a Service for a Vehicle in a Finance Schedule the following provisions apply during the Finance Period: (a) TFM will give the Customer a fuel card for the
Vehicle.
(b) As between the Customer and TFM, the fuel card is TFM's property. The Customer must return any mutilated or disused fuel card to TFM. The Customer must also tell TFM as soon as it becomes aware of the loss, theft or any possible unauthorised use of the fuel card. TFM will give the Customer a replacement fuel card.
(c) The fuel card may only be used for that Vehicle. The fuel card may not, without TFM’s prior consent, be used for any other vehicle.
(d) The fuel card may only be used within the period of validity indicated on it. TFM will give the Customer a replacement fuel card.
(e) TFM may cancel the fuel card by giving the Customer 2 Business Days' notice.
(f) The Customer may at any time return the fuel card to TFM.
(g) The Customer must return the fuel card to TFM when the relevant Finance Agreement expires or terminates.
(h) The Customer remains liable for all fuel card transactions until TFM notifies the Customer that the returned fuel card has been cancelled. 15.2 Purchases using the fuel card
When the Customer purchases petroleum products using a fuel card, it will receive a voucher from the supplier. The Customer must:
(a) declare the odometer reading on the Vehicle at the time of purchase; and
(b) confirm that the details contained on the voucher are accurate.
The fuel card provider will process and report each purchase electronically (or manually using a voucher system) to TFM.
TFM will pay for each purchase made by the Customer using a fuel card. The Customer acknowledges that TFM makes a taxable supply of petroleum products to it each time that it purchases them using a fuel card.
15.3 Purchase disputes
(a) TFM will not consider any dispute about a purchase of petroleum products using a fuel card unless the Customer tells TFM before the next Payment Date that it disputes the details of a purchase.
(b) If the Customer tells TFM that it disputes a purchase, TFM will investigate the purchase and inform the Customer of the outcome. Where TFM discovers that a purchase has been incorrectly debited or credited, TFM will adjust the account balance for the relevant Finance Agreement accordingly.
16. EMERGENCY SERVICES 16.1 Roadside assistance
Where the Customer selects TFM roadside assistance (either TFM standard roadside assistance or TFM premium roadside assistance) as a Service for a Vehicle in a Finance Schedule, TFM will, during the Finance Period, pay for the registration of the Vehicle with that Service.
16.2 Accident management
Where the Customer selects accident management (either accident management or accident & claims management) as a Service for a Vehicle in a Finance Schedule, TFM will, during the Finance Period, pay for the registration of the Vehicle with that Service. 16.3. Other roadside assistance
Where the Customer selects other roadside assistance as a Service for a Vehicle in a Finance Schedule TFM will during the Finance Period obtain and pay for membership for the Vehicle with the appropriate State base motoring association.
17. INSURANCE
Where the Customer selects:
(a) comprehensive insurance as a Service for a Vehicle in a Finance Schedule, TFM will renew the insurances required by clause 7.1(a) during the Finance Period (up to the number of renewals specified in the Finance Schedule); and (b) any additional insurance (GAP insurance,
Payment Protection insurance or Extended Factory Warranty) as a Service for a Vehicle in a Finance Schedule, then TFM will pay for each selected insurance for the Vehicle for the Finance Period.
18. REPORTING 18.1 Vehicle reports
Where the Customer selects reporting as a Service for a Vehicle in a Finance Schedule, TFM will during the Finance Period give the Customer those reports for that Vehicle selected by the Customer in the Finance Schedule.
The reports which the Customer may obtain include: (a) inventory;
(b) fleet activity;
(c) Vehicles nearing expiry; (d) Vehicles on order;
(e) kilometre usage deviation;
(f) Vehicle Services due and overdue; (g) Vehicle expenditure;
(h) Vehicle transfer. 18.2 FBT reports
Where the Customer selects a fuel card as a Service for a Vehicle in a Finance Schedule, TFM will for each FBT year during the Finance Period provide the following FBT reports for the Vehicle (calculated in accordance with the FBT method specified in the Finance Schedule):
(a) fuel exception; and (b) fuel transactions.
TFM will give the Customer a description of each of these reports.
A Customer which selects a fuel card as a Service for a Vehicle may also in a Finance Schedule elect to receive the following FBT reports:
(c) FBT forecast;
(d) FBT statutory method; and (e) FBT operating cost.
18.2 E-tag reports
Where the Customer selects E-tag as a Service for a Vehicle in a Finance Schedule, TFM will provide the following E-tag reports for the Vehicle:
(a) business usage history;
(b) current quarter business usage;
(c) list of all Vehicle toll transactions sorted by Customer cost centre and driver surname; (c) exception report for trips without E-tag; (d) exception report for excess expenditure TFM will give the Customer a description of each of these reports.
18.4 General
The Customer acknowledges that TFM, in providing any of these reports, relies on information provided by third parties and agrees that TFM is not liable in any way for any error or omission in a report where that error or omission is as a result of the third party information.
19. E-TAG 19.1 E-tag
Where the Customer selects an E-tag as a Service for a Vehicle in a Finance Schedule the following provisions apply during the Finance Period: (a) TFM will give the Customer an E-tag for the
Vehicle.
(b) As between the Customer and TFM, the E-tag is TFM's property. The Customer must return any damaged or disused E-tag to TFM. The Customer must also tell TFM as soon as it becomes aware of the loss, theft or any possible unauthorised use of the E-tag. TFM will give the Customer a replacement E-tag.
(c) The Customer must ensure that the E-tag is fitted correctly to, and not removed from, the Vehicle until the end of the lease, or component failure, when it must be returned back to TFM (see 19.1 (g).
(d) An E-tag may only be used for that Vehicle in any State or Territory. An E-tag may not, without TFM’s prior consent, be used for any other vehicle.
(e) TFM may cancel the E-tag by giving the Customer 2 Business Days' notice.
(f) The Customer may at any time return the E-tag to TFM.
(g) The Customer must return the E-tag to TFM when the relevant Finance Agreement expires or terminates.
(h) The Customer remains liable for all E-tag transactions until TFM notifies the Customer that the returned E-tag has been cancelled. The Customer must return the E-tag to TFM within 30 days of notice of termination. TFM will surrender the E-tag to the E-tag provider, and will credit to the Customer’s account any amount received on surrender.
19.2 Purchases using E-tag
The E-tag provider will process and report each toll transaction electronically to TFM.
TFM will pay for each toll transaction made by the Customer using an E-tag. The Customer acknowledges that TFM makes a taxable supply to it each time that the vehicle passes through a toll. 19.3 Purchase disputes
(a) If an E-tag is faulty, the Customer must promptly notify TFM who will cancel the E-tag. TFM will give the Customer a replacement E-tag. (b) TFM will not consider any dispute about a toll
transaction using an E-tag unless the Customer tells TFM before the next Payment Date that it disputes the details of a transaction.
(c) If the Customer tells TFM that it disputes a transaction, TFM will investigate the transaction and inform the Customer of the outcome. Where TFM discovers that a transaction has been incorrectly debited or credited, TFM will adjust the account balance for the relevant Finance Agreement accordingly.
20. RELIEF VEHICLE
Where the Customer selects relief vehicle as a Service for a Vehicle in a Finance Schedule and the Vehicle is in TFM's opinion unfit for use for a specified period as agreed between TFM and the Customer, TFM will (using its best endeavours) arrange for the Customer to use a relief vehicle during the agreed period.
TFM will supply that relief vehicle from a TFM office in the State.
The use of a relief vehicle is conditional on the Customer continuing to comply with all of the terms and conditions of the Finance Agreement for the Vehicle and the relief vehicle.
21. MINI-LEASE
Where the Customer selects mini-lease as a Service in a Finance Schedule TFM will obtain and lease to a Customer, at its request, a vehicle for a specified short term or until another vehicle becomes available for delivery to the Customer. TFM may enter into such a mini-lease with an Authorised Person either orally or in writing. If made orally such a mini-lease will be binding on the Customer if confirmed to the Customer in writing by TFM and a Delivery Receipt is signed by the person who takes delivery of the vehicle on behalf of the Customer. The terms of the mini-lease will be as follows. (a) The lease may be terminated without notice at
any time by the Customer or TFM.
(b) TFM may, at its own expense, register and maintain the vehicle.
(c) The Customer must, if the vehicle is damaged (but not to the extent that an insurer or TFM decides that its repair is impractical or uneconomic), restore it as far as possible to the same condition that it was in before the damage occurred.
(d) The Customer must ensure the vehicle is made available to TFM from time to time at addresses specified by TFM to enable TFM to maintain and register the vehicle.
(e) The Customer must return the vehicle to TFM at a location nominated by TFM at the end of the lease period in the same condition as existed at the time of delivery (Fair Wear and Tear excepted).
(f) The Customer must pay rent for the vehicle at the rates and at the times specified by TFM for the period from the date of delivery of the vehicle to the Customer to the date on which the vehicle is returned to TFM.
(g) The Customer must pay for all fuel and oil used by the Customer during the term of the lease. (h) If TFM wishes to substitute the lease vehicle with
another vehicle of a similar kind then the Customer must deliver the lease vehicle to TFM when requested for that purpose.
(i) The Customer must complete a vehicle inspection form prior to delivery, and on return, of the vehicle. The Customer agrees that any terms and conditions in that form will form part of the lease.
(j) The Customer acknowledges that the vehicle may not be a new vehicle. To the extent permitted by law TFM excludes all liability with respect to the vehicle and as to fitness for any purpose.
(k) TFM will not accept responsibility for any loss of or damage to the vehicle from whatever cause or however it arises.
22. MANAGED FINANCE AGREEMENT
Where the Customer selects Managed Finance Agreement as a Service for a Vehicle in a Finance Schedule TFM will, until the Managed Finance Agreement ends or terminates, pay the rent under that Managed Finance Agreement to the Financier on each payment date under the Managed Finance Agreement.
The Customer acknowledges that TFM does not have any obligation to pay any other amount under that Managed Finance Agreement including:
(a) any excess usage charge; or (b) the residual value of the Vehicle; or
(c) any casualty, present or termination amount or value; or
(d) any amount under an indemnity for any loss suffered by the Financier as a result of the net sale, re-leasing or re-hiring proceeds of the Vehicle received by the Financier, or the ascertained value of the Vehicle, after expiry or termination of the Managed Finance Agreement being less than the residual value.
23. ADDITIONAL SERVICES
Where the Customer selects any additional Services for a Vehicle in a Finance Schedule, then TFM will provide those additional Services on the terms and conditions annexed to that Finance Schedule.
24. GENERAL 24.1 Directions
The Customer must, in connection with any Service, comply with any direction which TFM gives to it. 24.2 Renewal arrangements
The Customer may, in connection with any of the Services specified in clauses 14 (TFM to renew registration), 16.3 (other roadside assistance) and 17(a) (comprehensive insurance), either:
(a) renew the relevant Service itself and then obtain reimbursement from TFM. The Customer must, when applying for reimbursement, give TFM a copy of the relevant documents endorsed with payment details; or
(b) request TFM to renew the relevant Service. The Customer must make the request, and give TFM originals of the relevant documents, at least 14 days before the relevant renewal date. The Customer must make sure that TFM receives all of those documents on time. TFM is not responsible for the renewal if it does not, for any reason, receive those documents on time.
25. CUSTOMER'S FINANCIAL OBLIGATIONS FOR SERVICES
25.1 Payment categories
The charge for each Service falls within one of the following payment categories as specified in the relevant Finance Schedule:
(a) Fixed Cost
a f i x e d c o s t s e t b y T F M b e f o r e t h e Commencement Date and payable by instalments on each Payment Date;
(b) Budgeted
a budgeted cost set by TFM before the Commencement Date and payable by instalments on each Payment Date; and (c) Recharge
the actual amount paid or payable by TFM to an Authorised Service Centre or third party Service provider on the Customer's behalf (specified in an invoice from TFM to the Customer).
If a payment category for a Service is not shown in the Service and management provisions of a Finance Schedule, the payment category for that Service is taken to be a Fixed Cost.
25.2 Payment obligations
The Customer must pay to TFM:
(a) in respect of each Service utilised by the Customer:
(i) the Fixed Costs and Budgeted Costs by instalments specified in the Finance Schedule on each Payment Date;
(ii) each Recharge Cost on the next Payment Date after TFM issues an invoice for it to the Customer. TFM and the Customer may vary the payment method in this clause so as to permit the Customer to pay directly the invoices raised by the Authorised Service Centre or third party Service provider;
(b) on early termination of any Service, an amount equal to the aggregate of all amounts pre-paid by TFM on the Customer's behalf for that Service. 25.3 Reimbursement for Budgeted Costs
The Customer acknowledges that, where clause 25.1(b) applies, a Budgeted Cost instalment specified in a Finance Schedule is only an estimate. TFM may, at any time, in its absolute discretion review any Service for which a Budgeted Cost instalment is payable and ask the Customer to pay to or reimburse it an amount which TFM certifies is equal to the difference between TFM's actual payments for that Service up to that time and TFM's estimated payments for that Service up to that time. The Customer must pay the requested amount to TFM within 7 days of the request. 25.4 Recharge arrangements
Where the Customer selects Recharge Cost as the payment category for a Service in a Finance Schedule, TFM will during the Finance Period: (a) arrange for the Service provider to invoice TFM
directly in relation to the provision of the Service utilised by the Customer;
(b) verify the invoice raised by the Service provider; (c) where it is found to be in order, pay or provide
(d) issue an invoice to the Customer in accordance with clause 25.2(a)(ii) for the total amount paid or payable by TFM on the Customer’s behalf.
26. TERMINATION
TFM's obligation to provide any Service for a Vehicle under a Finance Agreement ceases:
(a) on the last day of its Finance Period even if the Customer does not return that Vehicle on that day; or
(b) When the Managed Finance Agreement for that Vehicle ends or terminates.
27. ACQUISITION SERVICES
Where TFM agrees in the Details to provide acquisition services to the Customer, TFM will assist the Customer with new vehicle selection and acquisition by providing information and advice in respect of equipment, performance and reliability, and industry trends, including:
(a) obtaining quotes for the supply of any vehicle which the Customer wishes to acquire; (b) submitting the quotation to the Customer who
may then authorise the purchase of the vehicle in writing;
(c) preparing and arranging execution of all acquisition documentation; and
(d) arranging for the registration of the vehicle and making it available for delivery from TFM's nominated location.
TFM will not be liable for any inaccuracy contained in any such information, advice or quotation. The Customer must pay TFM, on demand, if paid by TFM the purchase price of any vehicle acquired by TFM on behalf of the Customer, together with all Taxes and other costs and expenses incurred in respect of the purchase and registration of that vehicle.
28. DISPOSAL SERVICES
Where TFM agrees in the Details to provide disposal services to the Customer, TFM will arrange for the disposal of vehicles owned by the Customer that are not the subject of a Finance Agreement by: (a) presenting the vehicle for sale to licensed motor
car traders, auctioneers or other parties approved by TFM; and
(b) preparing and arranging execution of all disposal documentation and distributing the actual proceeds received by TFM to the Customer on a weekly basis.
29. ADDITIONAL PARTIES
(a) A related corporation or affiliated entity of the party named in the Details as the Customer may, at the request of that party, and with TFM's approval, transact business with TFM under this Agreement on the same terms and conditions as that party.
(b) If the party named in the Details as the Customer wants a related corporation or affiliated entity to transact business with TFM under this Agreement on the same terms and conditions as that party, it must sign, and procure that the related corporation or affiliated entity signs, a Related Corporation Nomination Form. (c) If TFM agrees to transact business with a related
corporation or affiliated entity of the party named in the Details as the Customer, that related corporation or affiliated entity, by executing the Related Corporation Nomination Form, will become a party to this Agreement.
30. EXAMINATION
30.1 Dealer and others are not TFM's agent
The Customer acknowledges and agrees that the manufacturer, dealer, Authorised Service Centre or other supplier of the Vehicle or any Service to the Customer is not and will not be the agent of TFM for any purpose whatsoever.
30.2 Examination
(a) The Customer acknowledges that:
(i) it has not told TFM or anyone else about the particular purpose for which it requires the Vehicle or (except for an acquisition service under clause 19) any Service; and
(ii) it has not relied on TFM's skill or judgment in deciding to enter into any Transaction Document.
(b) The Customer alone is responsible, so far as the law permits, for examining and being satisfied with the Vehicle and (except for an acquisition service under clause 19) each Service before it accepts any of them, including that:
(i) the Vehicle complies with its description; (ii) the Service has been rendered with due care
and skill and any materials supplied in connection with that Service are reasonably fit for the Customer's purposes;
(iii) the condition, fitness, quality and suitability of the Vehicle and each Service meets the Customer's purposes;
(iv) the manufacturer's, dealer's, Authorised Service Centre's or supplier's entitlements to intellectual property rights, guarantees and warranties are valid.
(c) The Customer acknowledges that, except as set out in clause 32.4, neither TFM nor anyone on its behalf has given any warranty or made any representation to the Customer as to the condition, fitness, quality or suitability of the Vehicle or (except for an acquisition service under clause 19) any Service for the Customer's purposes.
31. CUSTOMER'S OBLIGATIONS 31.1 Managed Finance Agreement
The Customer must comply with all of its obligations under each Managed Finance Agreement.
31.2 Provision of information
TFM will notify the Customer if it is unable to produce a document under a Transaction Document because it does not have sufficient information to do so and give the Customer details of the outstanding information required in order to prepare that document. The Customer must use its best endeavours to supply that outstanding information to TFM promptly.
