Effective: 12 January 2022
In these Standard Terms and Conditions, the following defined terms have the following stated meanings:
Affiliated Club means a Club, entity, corporation, or other body that has entered into an agreement with the Company to use the Company’s Services and facilities on an ongoing basis or for a fixed term.
Australian Consumer Law Guarantee means the law set out in Schedule 2 of the Competition and Consumer Act 2010 (Cth) and any corresponding provisions of any State or Territory fair trading legislation or the Australian Securities and Investments Commission Act (2001) (Cth).
Company means Fidon Pty Ltd ACN 075 604 456 and includes its employees and executives.
Consequential Loss means any loss or damage arising from a breach of contract or agreement, tort, or any other basis in law or equity including, but without limitation to, loss of profits, loss of revenue, loss of production, loss or denial of opportunity, loss of bargain, loss of access to markets, loss of goodwill, indirect or remote or unforeseeable loss, loss of business reputation, future reputation or publicity, wasted expenditure, any loss or gain for which restitution damages is capable of being awarded, or any similar loss which was not contemplated by the parties.
Corporations Act means the Corporations Act 2001 (Cth).
Customer means the person or corporate entity who receive and/ or use Services supplied by the Company.
Firearms Dealer Licence means a Firearms Dealer Licence issued to the Company and/ or its Director, by the Firearms Registry of the NSW Police Force.
Firearms Dealer Services means all services conducted under a Firearms Dealer Licence.
Goods means the firearms, parts, accessories and equipment, that is stored by the Company under a Safe Rental/ Storage Agreement.
Government Authority means without limitation the NSW Police Force and any other New South Wales or Federal Government Department or Statutory Body.
GST Law means the A New Tax System (Goods and Services Tax) Act 1999.
GST Rate means the rate of GST under the GST Law.
Input Tax Credit has the same meaning as Input Tax Credit under the GST Law.
Laws means the Firearms Act 1996, the Firearms Regulation 2017, the Weapons Prohibition Act 1998, the Weapons Prohibition Regulation 2017, the Security Industry Act 1997, the Security Industry Regulation 2016, the Firearms and Weapons Legislative Amendment Bill 2017, and including, without limitation all delegated legislation including regulations, ordinances and directions made pursuant to the Laws and any successor Laws.
Mandatory Covid-19 Vaccination Policy means the mandatory Covid-19 Vaccination Policy issued by the Company and as amended from time to time.
PPSA means the Personal Property Securities Act 2009 (Cth).
Prohibited Weapons Dealer Services means all services and goods provided by the Company pursuant to a Prohibited Weapons Permit issued by the Firearms Registry of the NSW Police Force.
Prohibited Weapons Permit means the permit issued by the Firearms Registry of the NSW Police Force which allows the Company to, inter alia, possess, buy, sell, manufacture, repair or hire prohibited weapons of the kind specified in the permit.
Range Standing Orders means the Company’s Range Standing Orders, as amended, and revised from time to time.
Related Body Corporate has the same meaning as under the Corporations Act.
Safe Rental/ Storage Services means the storage of firearms and associated equipment by the Company under a Safe Rental/ Storage Agreement.
Security Interest has the same meaning as under the PPSA.
Sub-contractors means any other person who pursuant to a contract or arrangement with any other person (whether or not the Company) provides or agrees to provide the Services or any part of the Services.
Services means the provision of Shooting Range Facilities and includes: the provision of security training facilities and classrooms; the sale of firearms and accessories; the repair of firearms; Firearms Dealer Services; Prohibited Weapons Dealer Services; and Safe Rental/ Storage services.
Shooting Range Facilities means the shooting range provided by the Company at Auburn, New South wales.
Supply means the same as in the GST Law.
Taxable Supply means the same as in the GST Law.
Tax Invoice means the same as in the GST Law.
2.1 These Standard Terms and Conditions apply to all Services provided by the Company to the Customer.
- Governing Law and Jurisdiction
3.1 These Standard Terms and Conditions and any collateral agreements made by the Company with the Customer shall be governed and construed according to the laws of New South Wales and shall be subject to the exclusive jurisdiction of the courts of New South Wales.
- Acceptance of Standard Terms and Conditions
4.1 The Customer acknowledges and agrees that it has received and understands these Standard Terms and Conditions. By instructing the Company to perform the Services, the Customer will be bound by the Standard Terms and Conditions of the Company.
- Range Standing Orders
- All persons and entities who use the Services of the Company do so in compliance with the Range Standing Orders, which are published in the foyer of the Company’s Shooting Range Facilities at Auburn.
- All persons and entities using the Shooting Range Facilities acknowledge that they have read and understand the Range Standing Orders.
- Safe Rental and Storage
- The Company offers a Safe Rental and Storage Service.
- All Customers who wish to use the Company’s Safe Rental and Storage Services must enter into a separate Safe Rental/ Storage Agreement.
- The terms of the separate Safe Rental/ Storage Agreement will apply to those Safe Rental and Storage Services in addition to these Standard Terms and Conditions.
- Payment and recovery of Fees
7.1 The Company shall under no circumstances be precluded from raising a debit in respect of any fee or disbursements lawfully due to it, notwithstanding that a previous debit or debits (whether excluding or partly including the items now sought to be charged) had been raised and whether or not any notice was given that further debits were to follow.
7.5 Where the Customer is an Affiliated Club, The Customer agrees that the Fees will be paid within the time specified in the separate agreement.
7.7 In all other circumstances the fees will be paid by the Customer at the time of using the Services.
7.8 If any amounts payable or due under any agreement between the Company and the Customer are not made within 7 days of the due date, the Customer will be in default and without limiting any other rights of the Company, the Customer shall pay to the Company, by way of liquidated damages, interest to be calculated at the rate being 2% above the Cash Rate Target fixed by the Reserve Bank of Australia on the amount outstanding calculated from the due date until payment is made in full. The Company may take any legal proceedings to recover amounts owing pursuant to these Trading Conditions.
7.9 The Company reserves the right to offset any amounts receivable from the Customer against any amounts payable to that Customer or any company affiliated with the Customer or any Related Body Corporate of the Customer. This right exists irrespective of the date the liability has been created or debt incurred with the Company.
- Customer Warranties
- The Customer warrants that it has read and understands the Range Standing Orders.
- Where the Customer is an Affiliated Club, the Customer warrants that its members and visitors have read, understand and shall comply with the Range Standing Orders.
- The Customer warrants that it will comply with all terms of any Safe Rental/ Storage Agreement that may be entered into by the Company and the Customer.
- Where the Customer is an Affiliated Club, the Customer warrants that its training program has been approved by the Firearms Registry of the NSW Police Force, and the Customer shall provide a copy of the training program and Firearms Registry Approval to the Company upon request.
- Where the Customer is an Affiliated Club, the Customer warrants that its training officers are accredited as Training Officers by the Customer.
- The Customer warrants that it will fully comply with the Company’s Mandatory Covid-19 Vaccination Policy, as published and revised by the Company from time to time.
- Where the Customer is an Affiliated Club, the Customer warrants that its members and visitors have all been vaccinated in accordance with the Company’s Mandatory Covid-19 Vaccination Policy, as updated from time to time.
8.2 Furthermore, the Customer warrants and undertakes to indemnify the Company in respect of any liability whatsoever and howsoever arising in connection with the provision of the Services.
8.3 The Customer warrants that it has complied with all laws and regulations relating to the Services and indemnifies the Company for all liability and for all costs incurred as a result of or arising out of a breach of this warranty.
- Liability – Company not Liable
9.1 To the full extent permitted by law, the Company, its servants and agents will have no liability whatsoever to the Customer, whether in tort, contract, bailment, or otherwise, unless such is solely caused by, and attributable to, the gross negligence of the Company in provision of the Services, and the Customer shall indemnify the Company in respect of any claims made by third parties concerning the provision of the Services by the Company, in connection with or arising out of, but not limited to:
- The death, injury, disease or illness (including mental illness) to the Customer or any person, including, inter alia, claims for personal injuries and compensation to relatives claims;
- The loss or physical damage to or loss of use of, any firearms, equipment or property;
- The Company’s provision of the Services;
- Any penalties or fines payable by the Company under any legislation, due to the Customer providing incorrect, false or misleading information to the Company; and/ or failing to provide information or documents to the Company as requested by the Company;
- Loss or damage incurred by the Company due to a breach by the Customer of any of the Warranties in these terms and Conditions;
- Claims relating to illness or death as a result of Covid-19, or other contagious disease;
- A claim against the Company by a third-party for loss of profits or economic loss;
- Any indirect, special, economic, or consequential loss or damage or loss of revenue whether in contract or tort (including negligence) or otherwise.
9.2 Except as required by law, the Company shall not be responsible in negligence, contract or otherwise for loss, damage, fines or penalties incurred by the Customer or Affiliated Club or any other person resulting from or arising out of or in connection with any quotation, advice, statement, representation or information provided to the Customer or Affiliated Club.
9.3 The nature of the indemnity provided by the Customer pursuant to these Standard Terms and Conditions shall include, without limitation, all penalties, liabilities, all losses (including indirect and Consequential Loss) and damages assessed against the Company and its officers and employees, together with all legal costs incurred by the Company (calculated on a solicitor/client basis).
9.4 In all cases where liability of the Company has not been excluded, whether by these Conditions, by statute or by international convention or otherwise, the liability of the Company whatsoever and howsoever arising is limited to:
- Australian $100 or the value of the Services the subject of the Contract, whichever is the lesser; or
- in the case of a breach of an Australian Consumer Law Guarantee, the payment of the cost of having the Services supplied again
- Indirect Loss
10.1 Neither the Company nor the Customer shall be liable for any loss suffered by the other party in connection with the Services that is an indirect or Consequential Loss including:
- losses that are purely financial or economic losses;
- loss of opportunity;
- losses in connection with contracts, agreements, or understandings the Customer has with third parties; and
- any other losses whatsoever that do not arise directly from physical damage to or loss of the Goods and are consequential in nature.
- Indemnity by Customer
- The Customer warrants:
(a) that no claim or allegation shall be made, whether by the Customer or any other person who is or who may subsequently be interested in the provision of the Services, against any person (other than the Company) by whom (whether it is a Subcontractor, principal, employer, servant, agent or otherwise) the Services or any part of the Services are or is provided which imposes or attempts to impose upon such person any liability whatsoever and howsoever arising in connection with the provision of the Services and if such claim or allegation should nevertheless be made to indemnify the Company and the person against whom such claim or allegation is made against the consequences of such claim or allegation. For the purpose of this term the Company is or shall be deemed to be acting as agent or trustee on behalf of and for the benefit of all such persons and each of them and all such persons and each of them shall to this extent be or be deemed to be parties to this Contract; and
- to indemnify the Company against any claim or allegation made against it by any person in connection with any liability, arising out of or relating to the provision of the Services.
- Himalaya Clause
12.1 Every exemption, limitation, condition and liberty in these Standard Terms and Conditions and every right, exemption from liability, defence and immunity of whatsoever nature applicable to the Company or to which the Company is entitled in accordance with these Standard Terms and Conditions shall also be available and shall extend to protect:
(a) all Subcontractors;
(b) every servant or agent of the Company or of a Subcontractor;
(c) every other person (other than the Company) by whom the Services or any part of the Services are or is provided; and
(d) all persons who are or may be vicariously liable for the acts or omissions of any persons falling within paragraphs (a), (b) or (c) herein:
and, for the purpose of this clause, the Company is or shall be deemed to be acting as agent or trustee on behalf of and for the benefit of such persons and each of them and all such persons and each of them shall to this extent be or be deemed to be parties to this Contract.
- This clause applies if the Customer is an Affiliated Club.
- The Affiliated Club must affect and maintain a policy of public liability insurance, which names the Company as an interested party, and which covers liability in respect of:
- Loss of, or damage to, or loss of use of, any real or personal property; and
- The personal injury, disease or illness (including mental illness) to, or death of, any person, arising out of or in relation to performance or non-performance of the Services.
- The public liability insurance policy must provide cover of not less than $20,000,000 for any one occurrence.
- The public liability insurance policy must remain current at all times while the Affiliated Club uses the Company’s Services.
- Upon request by the Company, the Affiliated Club must provide a copy of the Certificate of Currency to the Company.
14.1 The Company, its servants or agents shall have a Particular Possessory Lien and a General Possessory Lien on any goods and a right to sell the Goods, whether by public or private sale or auction, without notice, for any and all debts, charges, expenses or other sums due and owing by the Customer, including, inter alia, rental and storage fees and fees for the Services.
14.2 In addition, all costs and expenses of exercising the Company’s right of lien, including the sale of the Goods and reasonable legal fees, shall be covered by the lien.
14.3 In the circumstance that the proceeds of sale are not sufficient to cover all amounts payable to the Company, the Company retains the right to recover any deficit from the Customer. The Company acts as principal and not as agent and is not the trustee of the power of sale when the Company sells or otherwise disposes of Goods.
15.1 The Company shall not be liable to the Customer for any breach or failure to perform its obligations under these Standard Terms and Conditions or pursuant to any Agreement with Affiliated Clubs or for any damage or loss to Goods resulting from one of the following: act of God; act of war; act of terrorism; act of public enemies; pandemic (including circumstances arising from Covid-19), epidemic or other major public health emergency; arrest or restraint of princes, rulers or people, or seizure under legal process; strikes or lock-outs or stoppage or restraint of labour from whatever cause, whether partial or general; riots and civil commotions; or any other cause arising beyond the reasonable control of the Company, without the actual fault or privity of the Company and without the actual fault or privity of the agents or servants of the Company.
16.1 Where Goods are stored by the Company for the Customer, and they are uncollected for whatever reason they may be sold or returned at the Company’s option at any time after the expiration of 21 days from a notice in writing sent to the Customer at the address which the Customer gave to the Company. All costs, charges and expenses incurred by the Company and arising in connection with the storage, sale or return of the Goods shall be paid by the Customer and may be deducted from the proceeds of the sale of the Goods.
16.2 If the sale of Goods does not provide sufficient proceeds to discharge all liability of the Customer to the Company, the Customer acknowledges that it is not released from the remainder of the liability to the Company merely by sale of the Goods.
16.3 The Company sells or otherwise disposes of such Goods as principal and not as agent and is not trustee of the power of sale.
17.1 At all times if the Customer is a corporate entity under the Corporations Act, the directors and shareholders of that corporate entity will guarantee the Debts, undertake to perform the obligations of the Customer and indemnify and keep indemnified the Company against the Debts.
17.2 The Customer shall ensure that its directors and shareholders will sign any other documents required by the Company to evidence and confirm any guarantee, undertaking and indemnity.
18.1 The Customer acknowledges that the Company shall have a Security Interest which attaches over any Goods, and that the Company may, at the Customer’s cost, register its security interests granted by the Customer under these Standard Terms and Conditions, and all of the Customer’s present and future rights in relation to the Goods, on the Personal Property Securities Register established under PPSA. The Customer consents to the registration and perfection of the Security Interest under PPSA.
- Australian Consumer Law
19.1 Notwithstanding anything herein contained, any Australian Consumer Law Guarantee that applies to the Services are not excluded. To the extent permitted by law, the liability of the Company for breach of an Australian Consumer Law Guarantee is limited to the payment of the cost of having the relevant Services supplied again.
20.1 This clause applies if the Company is or may become liable to pay GST in relation to any Supply under these Standard Terms and Conditions.
20.2 Unless otherwise stated, all charges quoted are exclusive of GST. In addition to such charges, the Customer must pay GST on the Taxable Supply to the Company of an amount equal to the GST exclusive consideration multiplied by the GST Rate.
20.3 GST is payable by the Customer without any deduction or set-off for any other amount at the same time as the GST exclusive consideration is payable.
20.4 The Company shall provide to the Customer a Tax Invoice to enable the Customer to claim an Input Tax Credit.