PRO LIGHT & SOUND PTY LTD (ABN 11 106 413 932)
1.1 In these Terms:
means any agreement entered into for the hire of equipment or provision of services by PLS to the Customer;
means a person, firm or corporation, jointly and severally if there is more than one hiring equipment or obtaining services from PLS;
means all goods, equipment, consumables, accessories and of whatever nature supplied by PLS to the Customer and “hire of equipment” includes any services provided by PLS in delivery, unpacking, installing and collection of equipment; means any equipment hired to the Customer by PLS;
means the Goods and Services tax as defined in A New Tax System (Goods and Services Tax) Act 1999 as amended;
means the time from when the equipment leave the store used by PLS until they return to it;
means any contract for the hire of equipment by PLS to the Customer on the Terms;
means all copyright, trade marks, designs, specifications, confidential information, (whether registrable or not) owned or licensed by PLS in respect of the equipment, services or their installation, operation, location or design;
means Pro Light and Sound Pty Ltd (ABN 38 766 535 542);
means the provision by PLS to the Customer of any services including without limitation concept creation, lighting and sound design and event staging; “Site” means the site where the equipment is delivered; and “Terms” means these Terms and Conditions of Hire and Supply of Design Services;
2.Basis of Agreement
2.1 Unless otherwise agreed by PLS in writing, the Terms apply exclusively to every Hire Contract and contract for provision of services by PLS to the Customer and cannot be varied or supplanted by any other terms, including the Customer’s terms and conditions (if any).
2.2 A written quote provided by PLS to the Customer regarding the proposed hire of equipment or provision of services is valid for 30 days and is an invitation only to the Customer to place an order based upon that quote. Any terms in PLS’ quote form part of the Terms and if inconsistent will prevail.
3.1 Unless otherwise stated, prices quoted for the supply of equipment and services, exclude GST and any other taxes or duties imposed on or in relation to the equipment and services. In addition to payment of the price of equipment and services, the Customer must pay any GST and any other taxes or duties imposed on the equipment and services.
3.2 If the Customer requests any variation to the Agreement, PLS may increase the price to account for the variation.
3.3 Where there is any change in the costs incurred by PLS in relation to the equipment or services, PLS may vary its price for the hire of equipment or services in order to take account of any such change, by notifying the Customer.
4.1 Payment for hire of equipment must be made in the manner and at the times referred to in the Hire Contract promptly and without deduction.
4.2 Failure to pay in accordance with the Hire Contract will automatically void any and all discounts.
4.3 Payment must be made by credit card or EFTPOS.
4.4 PLS may require a security bond to be paid in addition to any hire fees. PLS may apply the security bond against any amounts payable by the Customer under the Terms.
4.5 Any portion of the security bond not applied will be refunded by cheque posted within ten days of return of equipment.
5. Variation and Cancellation
5.1 If through circumstances beyond the control of PLS, PLS is unable to provide equipment or services, then PLS may:
(a) make changes to the equipment provided that the end performance is not materially prejudiced; or
(b) cancel any order (even if it has already been accepted) by notice in writing without any liability to the Customer.
5.2 The Customer may cancel an order but will forfeit any fees paid in full.
6. Delivery, collection and return
6.1 The Customer must allow PLS’ servants, agents and insurers access to the equipment at all reasonable times to deliver, install, remove, inspect, test, adjust, maintain, repair or replace them. The Customer is responsible for providing safe and proper access to and at the Site. The Customer is liable for all injury, loss or damage suffered by PLS , its employees or agents while at the Site.
6.2 If the Customer requires any change to the time of delivery or removal of the equipment it must promptly notify PLS in writing. PLS in its absolute discretion, may accept or reject such request. If PLS accepts such request it may charge the Customer for any additional hire fees or costs incurred by PLS.
6.3 If, for whatever reason PLS is unable to gain access to the Site for delivery or pick up of equipment it may charge the Customer for delivery and pick up charges for each unsuccessful attempt.
6.4 The Customer must make the equipment available for collection by PLS at the end of the Hire Period in a working, complete, clean and dry state.
6.5 If the Hire Contract states that the Customer must arrange for return of the equipment to PLS and the Customer fails to do so at the end of the Hire Period, the Customer agrees to pay PLS the daily hire charge for each item for each day from the end of the Hire Period until the equipment is returned or until adequate compensation is made to PLS including payment for any loss or destruction of the equipment.
6.6 PLS’ count and decision as to condition of equipment prior to dispatch and on return shall be final.
7. Responsibility of Customer
7.1 During the Hire Period and at any time the equipment remains in the possession or under the control of the Customer, the Customer:
(a) is responsible for and bears the risk for all of the equipment including damage to equipment caused by fire, storm, collision, accident, theft or burglary;
(b) is responsible for using the equipment in strict conformity with the equipment’s’ instructions or specifications;
(c) must comply with all relevant laws, by-laws and regulations applicable to the installation, use and operation of the equipment;
(d) must maintain and return the equipment in the same condition as the time of delivery;
(e) must not sell, mortgage, sublet, assign or otherwise dispose of the equipment, as all equipment remains the property of PLS;
(f) must have its own insurance for loss, damage or theft of the equipment Plant to its full replacement value. The Customer must, within 48 hours of commencement of the hire, if requested by PLS, provide evidence of any required insurance policies. If proof of insurance is not provided when requested, PLS will undertake to insure the equipment and the Customer will be fully responsible for payment of the excess under PLS’ insurance policy;
(g) must immediately notify PLS of any failure of the equipment during the Hire Period (24 hour emergency service available for hires within Melbourne Metropolitan area – minimum response time 1 hour); and
(h) must, within 14 days of demand, pay PLS for any damage or losses to any of the quipment, sustained while the equipment was in the possession of the Customer.
7.2 The Customer acknowledges that:
(a) PLS is not responsible for the inexperience of the Customer or operator of the equipment, which causes damage or non-operation of the equipment during the hire period and the Customer will remain liable to pay all hire charges, unless the operator is provided by PLS;
(b) use of non-genuine parts on the equipment (i.e. globes, fuses, smoke fluid, etc) may result in the Customer being liable to pay services charges and any charges for damage on demand to PLS.
8. Breakdown or defect
8.1 The Customer must carefully inspect the equipment upon delivery and notify PLS within 4 hours if there is any damage, loss or shortage. Any shortages not notified within this time will be charged for in full.
8.2 Breakdown or defect in the equipment resulting from:
(a) proper or ordinary use; or
(b) the development of an inherent fault or faults not ascertainable prior to start of the Hire Period; may, at PLS’ option, either be repaired at the Site or the equipment replaced and delivered to the Site at PLS’ expense.
8.3 If repair is impracticable and if replacement equipment is not available, the proportional charge for the broken or defective equipment will be credited to the Customer and PLS will not have any other liability whatsoever to the Customer.
8.4 No relief from hire charges or any claims will be allowed by PLS where:
(a) an event has been delayed, cancelled or postponed for reasons out of PLS’ control including, without limitation inclement weather or Site conditions;
(b) the Customer fails to notify PLS of any defect or breakdown of equipment immediately when it occurs.
8.5 The Customer must not try to effect any repairs on any equipment.
9. Design Services
9.1 The Customer is liable to pay the design fee outlined in the Hire Contract where PLS, at the request of the Customer, prepares lighting, sound and event staging designs for the Customer. PLS may, in writing, waive the design fee where the Customer hires equipment from PLS in relation to the services.
9.2 PLS will not be responsible for any loss or damage suffered whatsoever where the Customer takes designs prepared by PLS to be implemented by a third party.
10. Intellectual Property
10.1 Intellectual Property provided to the Customer by PLS remains the exclusive property of PLS and must be returned to PLS on demand and must not be copied or communicated to any third party without the express written consent of PLS.
11. Ownership of Copyright
11.1 Where by virtue of the Copyright Act 1968, or other Act of any Federal or State Parliament copyright in the Copyright Material would vest in the Customer, the Customer hereby assigns such copyright to PLS.
12. Grant of Licence
12.1 Subject to this Agreement, PLS hereby grants to the Customer a limited licence to use the Intellectual Property (“IP Licence”).
12.2 The IP Licence is limited to the use by the Customer of such equipment and services as have been supplied by PLS.
12.3 The Customer is not authorised to do any act comprised in the copyright of the Intellectual Property without the written permission of PLS.
13. Default and Termination
13.1 If the Customer:
(a) breaches any of the Terms;
(b) is an individual and becomes bankrupt or enters into any scheme of arrangement or composition of the benefit of his or her creditors;
(c) is a corporation and becomes insolvent or enters into any scheme of arrangement, any assignment or composition with or for the benefit of its creditors, has as a liquidator, administrator, receiver or manager appointed, or any action is taken for winding up or dissolution; Then PLS may, without prejudice to any other remedy available to it:
(d) require immediate payment of all money which would become payable by the Customer to PLS at a later date on any account, without further notice;
(e) charge the Customer interest on any sum due at the prevailing rate pursuant to the Penalty Interest Rates Act 1983 (VIC) plus 4 per cent for the period from the due date until the date of payment in full;
(f) charge the Customer for, and the Customer must indemnify PLS from, all costs and expenses (including without limitations all legal costs and expenses) incurred by it resulting from the default or in taking action to enforce compliance with the Terms or to recover the equipment;
(g) charge the Customer for the cost of repairing or replacing any lost, damaged or destroyed equipment;
(h) charge the Customer for subsequent lost hire charges as a result of the equipment being lost, damaged or destroyed until the equipment is repaired or replaced;
(i) claim damages from the Customer for breach of the Hire Contract; and
(j) Cease or suspend for such period as PLS thinks fit, supply of any further equipment to the Customer.
13.2 On termination, the Customer must immediately make the equipment available for collection. If the Customer does not, PLS is entitled to enter any premises of the Customer where the equipment is suspected to be to repossess the equipment. PLS will not be liable for any damage caused and the Customer must indemnify PLS from any liability to it or any third party in respect of any damage, demands, proceedings, costs and expenses howsoever arising.
14.1 The Customer shall be solely responsible for and shall hold PLS fully indemnified against any loss or damage arising from or in connection with the provision of the equipment or services, including without limitation any action for infringement of copyright brought by any third party against PLS or the Customer.
15.1 Except as specifically set out herein, or contained in any warranty statement provided with the equipment or services, any term, condition or warranty in respect of the quality, merchantability, fitness for purpose, condition, description, assembly, manufacture, design or performance of the equipment, services or Intellectual Property, whether implied by statute, common law, trade usage, custom or otherwise, is hereby expressly excluded.
15.2 Replacement of the equipment or resupply of the services is the absolute limit of PLS liability howsoever arising under or in connection with the hire, use of, storage or any other dealings with the equipment or services by the Customer or any third party.
15.3 PLS is not liable for any indirect or consequential losses or expenses suffered by the Customer or any third party, howsoever caused, including but not limited to loss of turnover, profits, business or goodwill or any liability to any other party.
15.4 PLS will not be liable for any loss or damage suffered by the Customer where PLS has failed to deliver equipment or services or fails to meet any delivery date or cancels or suspends the supply of equipment or services, or suspends or cancels the Copyright Licence.
15.5 Nothing in the Terms is to be interpreted as excluding, restricting or modifying or having the effect of excluding, restricting or modifying the application of any State or Federal legislation applicable to the sale of equipment or supply of services which cannot be excluded, restricted or modified.
16.1 The law of Victoria from time to time governs the Terms and the parties agree to the non-exclusive jurisdiction of the courts of Victoria, the Federal Court of Australia, and of courts entitled to hear appeals from those Courts.
16.2 Failure by PLS to enforce any of these Terms shall not be construed as a waiver of any of PLS’ rights.
16.3 If any of the Terms are unenforceable it shall be read down so as to be enforceable or, if it cannot be so read down, the term shall be severed from these Terms without affecting the enforceability of the remaining terms.
16.4 A notice must be in writing and handed personally or sent by facsimile or prepaid mail to the last known address of the addressee. Notices sent by pre-paid post are deemed to be received upon posting. Notices sent by facsimile are deemed received on the facsimile machine confirming transmission.