Terms and Conditions, Disclaimer, Waiver, Privacy Policy
WWW.SHAYNEALLEN.COM
Use of this website, any associated applications and platforms, our services, all agreements, hire and use of and all locations, props, vehicles, vessels, goods and services, chattels and items and Hire Equipment is subject to these terms and conditions, disclaimer, waiver and privacy policy ( Terms and Conditions) and by continuing to browse, use this website and using any service or entering into any agreement you agree to be bound by these Terms and Conditions.
The information in this website is for information purposes only and no representations or warranties are made as to accuracy. completeness, reliability, suitability or availability for any purpose of information, products, services, Hire Equipment, Content and any reliance is therefore at your own risk as you must make your own enquiries if the information, products or services are suitable for your use.
All dealings between a Hirer, Agent and Owner are subject to these Terms and Conditions to the extent permitted by law.
1.
2.
2.1.1 You agree that –
• you will not gain unauthorised access to the Shayne Allen Website or any of our servers, other computers or databases,
DEFINITIONS
“Agent” means Shayne Allen ABN 44827207706 as agent for the Owner.
“Agency Agreement” includes any agreement by any means in any media including verbal by an Owner with the AgenttoactastheOwner’sagenttopostContentonthewebsiteandarrangehiringoftheHireEquipmenttoHirers onbehalf of the Owner to enter Hire Agreements on behalf of the Owner and every Agency Agreement incorporates these Terms and Conditions.
“Agreement” includes any agreement contemplated by these terms and conditions.
“Booking Fee” means the amount charged by the Agent to the Hirer for a booking from time to time
“Content” includes anything on or directly or indirectly accessible through the Website or a website, information displayed on or accessible directly or indirectly through the Website, and any product or service available for acquisition or hire directly or indirectly through the Website and anything in or associated with any Hire Equipment and includes all confidential information and intellectual property.
“GST” has the same meaning as in the A New Tax System (Goods and Services Tax) Act 1999 (Cth).
“Goods and Services” includes all locations, properties, improvements, equipment, goods, vehicles, vessels, goods and chattels and items and services supplied or made available for hire by the Owner or Agent and includes any advice or recommendations and any supply, delivery and installation.
“Guarantor” means any person required by the Agent to guarantee the obligations of the Hirer or Owner under these terms and conditions.
“Hirer” means the person, firm, organisation or corporation using or hiring Hire Equipment from the Owner (or any person acting on behalf of and with the authority of the Hirer) or named in any agreement, application or as described on any quotation, work authorisation or other form as provided by the Agent to the Hirer and includes all Hirer’s associates and all successors and assigns.
“Hirer’s associates” includes all persons associated with the Hirer or attending at any location, photoshoot, filming or using any Goods and Services or Hire Equipment or accessing this Website.
“Hire Agreement” includes any agreement by any means in any media including verbal to hire or use the Hire Equipment and every Hire Agreement incorporates these Terms and Conditions.
“Hire Equipment” includes all equipment, locations, properties, improvements, Goods and Services, any hair and make up bus or facilities provided by the Agent, tools, leads, plugs, accessories, parts and any other item as described on the agreements, invoices, quotation, work authorisation or any other forms as provided by the Agent or Owner to the Hirer. “Hire Period” includes all dates and times of hire of any Hire Equipment including weather hold days.
“Hire Fee” means the price payable for the hire of the Hire Equipment, insurance and any related charges as agreed between the Agent, Owner and the Hirer plus GST under these Terms and Conditions.
“Owner” means the owner of any of the relevant property, location, prop, vessel. vehicle, good and chattel, Hire Equipment and item in any Hire Agreement or Agency Agreement or included in the Website its successors and assigns or any person acting on behalf of and with the authority of the Owner.
“us” and “we” includes the Agent.
“you” includes Owner and Hirer, Hirer’s Associates and all persons accessing the Website and refers to the person in whose name a booking. Agreement, use or hire of any Goods or Services or other dealing with us is made or conducted where the context permits.
“Website” means this website www.ShayneAllen.com and any website controlled by Shayne Allen.
TERMS AND CONDITIONS. 2.1 Website
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you will not use the Shayne Allen Website in a manner or do anything which hinders or is likely to hinder access to the website or the use of the website by another, including by us,
you will not use the Shayne Allen Website or any of its Content for the purpose of sending unsolicited communications to any person in any form, and
you will not use the Shayne Allen Website or Content for any unlawful purpose, or in a way which is prohibited by these Terms and Conditions, or not contemplated by us, or for the purpose of harming any person in any way.
2.1.2 Except with our prior written consent, you agree that you will not –
reproduce, replicate, accumulate, compile, decompile, disseminate, sell or otherwise dispose of or extract any Content of the Shayne Allen Website, including any of its operating software and databases,
create a link to the Shayne Allen Website from any other website,
modify or adapt the Shayne Allen Website or any of its Content except by the provision of information sought by a dialogue box
on the Website, or
store or incorporate any of the Content of the Shayne Allen Website in any other website, database or repository, or use the
Shayne Allen Website except as permitted by the Terms and Conditions.
2.2 Third Party Websites
The Shayne Allen Website may contain links or other references to Third Party Websites. If it does, you agree that we have no Liability or responsibility for the condition, safety or content of those websites, and you acknowledge that a link or a reference to a Third Party Website does not imply any endorsement, approval or sponsorship of the website or of any product or service available through it. We make no representations or warranties whatsoever, either express or implied, regarding any Third Party Website, including as may be said to arise from the existence of a link or reference on the Shayne Allen Website.
2.3 Copyright Confidential information and Intellectual Property
Copyright in the Shayne Allen Website, Hire Agreement and Agency Agreement including all text, Content, photography, graphics, logos, icons, sound and video recordings, artworks and software and all confidential information and all intellectual property is owned or licensed by us or the Agent or Owner. Except as permitted under the Terms and Conditions or by our written permission, you agree that you will not in any form or by any means –
adapt, reproduce, store, distribute, print, display, perform, publish or create derivative works from any Shayne Allen Website, Hire Agreement or Content, or
commercialise any information, confidential information, intellectual property products or services accessible from any part of the Website Hire Agreement or Content.
2.4 Trade Marks, Designs and Conduct
Except with our written permission, you agree that you will not use any trademarks, designs, intellectual property, images, artworks, items, confidential information, Goods and Services, Hire Equipment displayed on the Shayne Allen Website or held by any other person including an Owner including, without limiting the effect of that agreement –
as or as part of your own trademark, design or intellectual property,
in connection with activities, products or services which are not ours,
in a manner which may be confusing, misleading or deceptive, or
in a manner which, or in association with anything which, disparages us, any Owner, any Content of the Shayne Allen Website,
any of our products or services, or the Shayne Allen Website.
2.5 Viruses
2.5.1 You agree that you will ensure that the processes employed for accessing the Shayne Allen Website by means of your login details prevent the transmission of viruses, malicious computer code or other forms of interference which may damage either your or our computer systems, or which may cause interference with the Content or operational functionality of the Shayne Allen Website.
2.5.2 You agree that we will have no Liability in respect of anything done by a virus, malicious computer code or anything which might interfere with or damage computer systems where exposure to the virus, computer code or thing has arisen from or in connection with access to the Shayne Allen Website through your login details.
2.6 Changes to the website
We may change the Shayne Allen Website at any time and in any way without prior notice.
2.7 Termination of Access
We may terminate your access to the Shayne Allen Website at any time without notice, and without giving a reason.
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2.8 Disclaimers
2.8.1 We do not warrant that information on the website or in any Hire Agreement or Agency Agreement is or at any point in time will be accurate or complete, and you agree that you will not rely upon information on the website in making any decision, but instead will make your own separate enquiries and investigations, and will rely solely upon them.
2.8.2 We make no representation or warranty –
as to the availability of and the continuity of access to the Shayne Allen Website or any Hire Equipment or Goods or Services,
as to the suitability or safety of any Hire Equipment or
as to the performance of the Shayne Allen Website.
2.9 Waiver
No waiver of an entitlement under these Terms and Conditions will be binding on a party unless it is in writing and signed by it. A failure to exercise or enforce a right will not be taken to amount to a waiver of the right.
2.10 Severability
If a provision of these Terms and Conditions is of becomes invalid, void or unenforceable, the provision will be severed, and the remainder of the Terms will continue in full force and effect to the extent that they may do so.
2.11 Governing Law
Any agreement between you and us is governed by the laws of New South Wales, and you and we agree to submit to the exclusive jurisdiction of the courts of that State.
2.12 Limitation of Liability
2.12.1 You agree that we and the Agent will have no Liability to you, and that you will indemnify us against any Liability to anyone else, where the Liability –
arises directly or indirectly in relation to the adequacy of any information or Content on or the information processing facilities of the Shayne Allen Website or a Third Party Website,
arises directly or indirectly from reliance on any information or Content displayed on or accessible directly or indirectly through the Shayne Allen Website or a Third Party Website,
arises directly or indirectly from or in connection with any virus, malicious computer code or another form of interference which causes damage or disruption to a computer system, any software or any stored data or which adversely affects the operational functionality of a computer system, where exposure to the virus, malicious computer code or other form of interference arose out of access through your login details to the Shayne Allen Website, or
arises directly or indirectly from or in connection with the use by you or anyone else of the Shayne Allen Website and the Hire Equipment.
2.12.2 You agree that we and the Agent will have no liability in any circumstances (including negligence) for any personal injury or any direct or indirect or consequential loss of any kind (including loss of profit) however it arises notwithstanding that notice of the risk of the loss may have been given to us.
2.12.3 To the extent permitted by law, any condition or warranty which would otherwise be implied into these Terms and Conditions is excluded. When legislation implies a condition, warranty or guarantee, and prohibits its exclusion or the modification of its application, our Liability arising from a breach of or non-compliance with the condition, warranty or guarantee will be limited to, at our election, one or more of the following –
if the breach or non-compliance relates to property, the replacement of the property, the supply of equivalent property, the repair of the property, the payment of the cost of replacing the property or of acquiring equivalent property or the payment of the cost of having the property repaired, and
if the breach or non-compliance relates to services, the supplying of the services again or payment of the cost of having the services supplied again.
2.12.4 The Terms and Conditions do not purport to exclude liability arising under statute if and to the extent that such liability cannot be lawfully excluded.
2.13 In the construction of the Terms and Conditions –
words importing any gender include the other genders,
words importing one number include the other,
where you comprise more than one person, each of you is jointly and severally liable for your obligations, and
the identity of the party which proposed any of the Terms is to be disregarded.
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3 Hire Agreement
Entering into a Hire Agreement is acceptance of these Terms and Conditions.
3.1 Booking Conditions
When seeking a booking to enter a Hire Agreement, all Hirers must provide, complete and give details of:
The full legal name of the Hirer and the responsible person authorised by the Hirer to sign agreements and be present at the location, and in in association with the Hirer and everything associated including the shoot;
The location of property and Hire Equipment;
The nature of the hire;
Areas of use;
Hire Period including the dates, hours, times of hire including weather hold requests;
The number, names and details of all the Hirers Associates and of people attending;
Whether the hair and make up bus is required;
Once a booking is accepted and confirmed a Hire Agreement must be signed and returned by Hirer ;
Credit card details and authorisation provided for Hire Fee, additional Hire fees for any extensions of time, cancellation fees,
cleaning and damages costs if the Hire Equipment is not left in the same condition or damage is sustained.
Payment of the Hire Fee plus GST including any credit card fee currently an additional 2%; and
Certificate of currency for at least the period of the Hire Period plus 7 days of public liability insurance for $20,000,000 and all
risks and indemnities, loss of income and property insurance for all Hire Equipment.
3.2 Hire
3.2.1 Hirers are only entitled to limited access and use of the Hire Equipment as set out in the Hire Agreement and have no right to access or use to the entire property or Hire Equipment unless agreed with the Agent and Owner of the property.
3.2.2 All Hirers must comply with the details provided, the Hire Agreement and Terms and Conditions or the Agent or Owner may suspend the hire and the Hirer may be required to immediately leave the location by the Agent or Owner with no refund .
3.2.3 Unless noted otherwise in an Agreement the Hirer is hiring the Hire Equipment and locations for the purposes of photoshoots and filming only.
3.2.4 If the Hirer requests more time to extend the Hire Period and if the Agent and Owner agree to extend the Hire Period then the additional Hire Fee shall be as agreed and in the absence of agreement 10 % of the original Hire Fee plus GST for every additional hour and the Agent is authorised to charge the credit card of the Hirer for the additional Hire Fee.
3.2.5 Hirers must obtain prior to the Hire Period all necessary approvals, permits, consents or licences from any relevant authorities including local council for all use and hire of the Hire Equipment and any activities of the Hirer.
3.2.6 Hirers must engage in no conduct that is misleading or deceptive or infringes the rights of others or may bring the Agent or an Owner into disrepute or scandal or may dilute, tarnish or harm the reputation of the Agent or an Owner and no use or conduct that may be considered discriminatory, defamatory, vilifying, obscene, abusive, violent, sexually explicit, prejudicial ,harassing, inaccurate or objectionable.
3.3 Cancellations
3.3.1 Any confirmed booking that is cancelled by the Hirer more than 72 hours prior to commencement of the Hire Period incurs a charge of 25 % of the Hire Fee plus the Agent’s Booking Fee.
3.3.2 Any confirmed booking which is cancelled more than 24 hours and less than 72 hours prior to commencement of Hire Period, will be charged at 50% of Hire Fee plus the Agent’s Booking fee.
3.3.3 Cancellation of confirmed bookings less than 24 hours prior to commencement of the Hire Period charged at 100% of Hire Fee plus the Agent’s Booking fee.
3.3.4 An Owner is entitled to cancel the availability for booking of Hire Equipment at any time prior to the Hire Period and the Hirer has no claim.
All parties agree to act in good faith dependent upon weather and use and availability of the Hire Equipment and subject to agreement by all parties alternative arrangements may be made, subject to the approval of the Owner and signing an alternate Hire Agreement.
Cancellations must be by text and email to the Agent.
3.4 Payment Terms
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By making a booking you and the Hirer agree to adhere to our payment terms in the Terms and Conditions.
3.5 House and Hire Equipment Rules
No smoking or vaping;
No use of illegal substances or unlawful conduct;
No use of social media for example no hashtags, twitter, instagram, facebook, snapchat or other social media links or feeds;
No cooking or use of Owner’s possessions, crockery, cutlery, cups, glasses, kitchen equipment or household items food drink or
contents- BYO catering;
No food or drink including coffee and tea except in outdoor areas;
No use of the Hire Equipment other than on the Terms and Conditions;
No use of telephone, internet, wifi, television, pay tv or similar services, computer or electronic equipment, music or video
recordings;
No use or photography or filming of any original artwork. image or thing subject to copyright or having intellectual property rights
unless prior written permission of the intellectual property owner or copyright owner is obtained;
No guests, family members, children or pets other than detailed in booking and agreed can access the property or use the Hire
Equipment;
No moving of furniture and no use of furnishings including rugs and cushions as props unless detailed in the booking and Hire
Agreement
No alcohol;
No cutting or damaging of flowers or plants or gardens;
No photos or film or other representation of property or Hire Equipment without product in the shot to be used in any social
platforms or media;
No images are to be taken that show nudity, exploitation or illegal drug use or are associated with an industry involved any
illegal activity. Any such images that are displayed in the public arena, on social or any media or shared are to be immediately
removed.
No rubbish left on site or placed in the Owner’s bins, all rubbish to be removed from site and from Hire Equipment;
No confetti, rice or glitter;
All Hire Equipment to be left in the same position and condition as at commencement of Hire Period and left clean and tidy;
All Hirers and Hirers Associates must protect all Hire Equipment, floors, walls, surfaces, furniture from dirt and damage and
always cover kitchen benches and articles to avoid stains and scratches.
3.6 Intellectual Property Artwork Copyright Disclaimer
Original Artworks, images, Content and things subject to copyright or having intellectual property rights must not be used or included in any photos, film or material taken by the Hirer or Hirer’s Associates or any other person unless prior written approval is obtained from the intellectual property owner. The Agent and Owner are not liable for any copyright or intellectual property infringement.
3.7 Security of Property and Persons
Hirer’s and Hirer’s associates must follow any lockup or security procedure advised by the Agent or Owner of the Hire Equipment and the Hirer is responsible to provide any security reasonably necessary to safeguard the Hire Equipment and any persons on site. This may include security guards, closing windows, locking doors, setting alarms or returning a key to a safe location on advice from the Agent or Owner. The Hirer acknowledges certain Hire Equipment may be in a dilapidated condition for its artistic qualities.
Any other guest or person who is not entitled to be on the Property, is the responsibility of the Hirer. The Agent and Owner are not liable for the actions of unauthorised persons.
3.8 Disclaimer
The Agent is not liable for any defect or fault in the Hire Equipment or for anything that occurs during the Hire Period and the Hirer and Owner release and indemnify the Agent from all claims costs and expenses.
3.9 Liability and Insurance
The Hirer, photographer ,film crew, talent and all other persons, must ensure that they or their company have Public Liability Insurance covering the Hire Equipment, the Hirer, the Owner, the Agent and all Hirer’s associates to a minimum value of $20,000,000 and any workers compensation insurance and insurance for personal injury, property damage and loss and loss of income and any other insurable risks in respect of the use of the Hire Equipment.
A copy of the Certificate of Currency of insurance must be made available to view on confirmation of booking.
Any injury damages or loss to any part of the Hire Equipment, location an Owner or its property or the Agent suffered in the
course of the Hire are the responsibility of the Hirer.
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The Hirer will be invoiced for the full cost of repairs or replacement Hire Equipment to be charged to the Hirer’s credit card as a result of loss or damage occurring during the use of the Hire Equipment.
The Hirer and you accept and agree to these terms and further accept that either the Agent, the Owner or any other agency jointly responsible for the management of the Hire Equipment or location have the right to independently pursue a claim.
3.10 Sole Agreement
The covenants and provisions contained in the Agreement exclusively and completely state the rights of the Hirer Agent and the Owner with respect to the use of the Hire Equipment. The Agreement supersedes all negotiations and prior agreements, whether written or oral.
3.11 Owner retains title to Property
The Owner retains full title to the Hire Equipment notwithstanding:-
The delivery to the Hirer;
The occupation, possession and use by the Hirer; and
Any temporary attachment of the Hire Equipment to any land or buildings to facilitate use.
3.12 No option to purchase Property
The Hirer does not have any right, option or obligation to purchase the Hire Equipment and acknowledges that no representation to that effect, express or implied, written or oral, has been made by or on behalf of the Agent or Owner to the Hirer at any time.
3.13 Notifying third parties
The Hirer must protect the Owner’s interest in the Hire Equipment, including making clear to others that the Owner is the owner of the Hire Equipment and that the Agent acts as agent on behalf of the Owner.
3.14 Enforcement costs and expenses
The Hirer must on demand reimburse the Agent and Owner for all costs, charges, expenses, fees, disbursements (including all reasonable legal costs on a solicitor and own client basis) paid or incurred by the Agent and Owner of or incidental to:
Any breach, default or repudiation of the Agreement by the Hirer (including the fees of all professional consultants properly incurred by the Agent and Owner in consequence of, or in connection with, any such breach, default or repudiation); and
The exercise or attempted exercise of any right, power, privilege, authority or remedy of the Agent or Owner under or by virtue of the Agreement, including all amounts incurred in repossessing the Property from the Hirer under the terms of the Agreement and in enforcing the Agreement generally.
3.15 Hirer's representations and warranties
The Hirer represents and warrants to the Owner that:
Incorporation: (if the Hirer is a corporation) it is registered as a company under the Corporations Act 2001, and has the power to carry on its business and to own its property in the manner and in the locations in which such business is presently being carried on or property owned;
Corporate power: (if the Hirer is a corporation) it has full power and authority under its constitution or other constituent documents to enter into the Agreement and to do all things required by the Agreement and all necessary meetings have been held and all resolutions have been passed as are required by its constitution or other constituent documents and any other action necessary to authorise the execution and performance of the Agreement has been taken and the Agreement will constitute the legal, valid, binding and enforceable obligations of the Hirer in accordance with its terms;
Compliance with legislation: (if the Hirer is a corporation) it is in full and ongoing compliance with its constitution or other constituent documents and all companies and securities legislation and regulations and (whether or not the Hirer is a corporation) the Hirer is in full and ongoing compliance with all other legislation and regulations to which the Hirer may at any time and from time to time be subject;
No litigation: except as disclosed in writing to the Owner and dispensed with in writing by the Owner, no litigation or administrative or other proceedings before or of any court or governmental authority or agency or other tribunal have, to the knowledge of the Hirer, been initiated or threatened against the Hirer or any of the Hirer's assets which would or might have a materially adverse effect upon the business, assets or financial condition of the Hirer;
Licence and Approvals: any person using or operating any Hire Equipment is licenced and all approvals for hire, use and operation of the Hire Equipment and any activity during the Hire Period are obtained and current;
Trustee: the Hirer is not the trustee of any trust and, accordingly, enters into the Agreement on its own behalf and not as trustee of any trust.
3.16 Casualty
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Total loss: If the Hire Equipment is totally lost, stolen, destroyed, seized, confiscated ("Casualty Occurrence") or if the Hire Equipment is damaged to an extent which in the relevant insurer's opinion renders repair impractical or uneconomic in the Hire Period (a "Write-off"), then the Hirer must pay to the Owner the value of the Hire Equipment so written off; or
Damage: If the Hire Equipment is damaged or partially lost but are not a Write-off in the Hire Period, then the Hirer must ensure the Hire Equipment is restored at the Hirer's expense to the condition at the start of the Hire Period.
3.17 Hire Equipment used at Hirer's risk
The Hirer agrees to use, hire, operate and possess the Hire Equipment at the Hirer's risk. The Hirer agrees that the Agent and Owner will have no responsibility or liability for any loss or damage to any property of the Hirer. To the full extent permitted by law the Hirer releases and discharges the Agent and Owner and its agents and employees from:
all claims and demands on the Agent and Owner; and
any loss or damage whatsoever and whenever caused to the Hirer Hirer’s Associates or its agents or employees whether by
way of death of, or injury to, any person of any nature or kind, accident or damage to property, delay, financial loss or otherwise,
arising directly or indirectly from use of the Hire Equipment or incidental to a breakdown of, or defect in, the Hire Equipment or any accident to or involving the Hire Equipment or their use, operation, repair, maintenance or storage or which may otherwise be suffered or sustained in, upon or near the Hire Equipment.
3.18 Indemnity against other costs and liabilities
The Hirer assumes liability for, and indemnifies and will keep indemnified, protected, saved and harmless the Agent and Owner and its agents and employees from and against any and all injuries, actions, proceedings, claims, demands, liabilities, losses, damages, costs, penalties and all expenses legal or otherwise (including court costs and legal fees reasonably incurred) and of whatsoever kind and nature (including claims based upon strict liability in tort):
arising out of or alleged to arise out of the delivery, selection, purchase, acceptance or rejection, ownership, possession, use (including by reason of the use or incorporation of any invention resulting in infringements of patents), repair, maintenance, storage, or operation of the Hire Equipment, and by whomsoever used or operated (except where used by the Owner or any person on behalf of the Owner); or
incurred by the Agent or Owner in respect of any loss of the Hire Equipment by seizure, distress, execution or other legal process, confiscation or forfeiture of the Property; or
arising out of any claim for patent, trademark, intellectual property or copyright infringement, for strict liability, or for any other reason being made against the Agent or Owner in connection with the Hire Equipment or their operation.
4 THE COMMONWEALTH COMPETITION AND CONSUMER ACT 2010 (“CCA”), FAIR TRADING ACTS (“FTA”) AND LEGISLATION
4.2 The CCA and FTA provide consumers with guarantees and rights and nothing in this agreement is intended to have the effect of contracting out of any applicable provisions of the CCA, the FTA or any relevant legislation in each of the States and Territories of Australia, except to the extent legally permitted by those Acts.
5 ACCEPTANCE
5.2 Signing of any agreement and acceptance by electronic means constitutes acceptance of these Terms and Conditions and the Agent, Owner and the Hirer consent to communication and execution by electronic means.
6 HIRE FEE AND PAYMENT
6.2 The Hire Fee is as set out on the Website or indicated on agreements quotes or invoices provided by the Agent to the Hirer regarding Hire Equipment.
6.3 The Agent reserves the right to revise its Hire Fees and related charges without notice.
6.4 The Hire Fee only covers the fee for hiring the Hire Equipment to the Hirer. If the Hirer requires the Hire Equipment to be delivered
and/or installed, the Hirer shall in addition pay the Owner all freight, installation and other charges incurred in transporting and installing the Hire Equipment, including loading and unloading at site and toll charges incurred by the Agent or Owner or the Owner’s representative.
6.5 The Agent Owner shall, if requested by the Hirer, but only if personnel are available, attend the site and instruct the Hirer in the operation of the Hire Equipment, and the Hirer shall in addition pay the Agent and Owner for such services.
6.6 Upon placing an order to hire any Hire Equipment, the Hirer must pay the Agent the Hire Fee.
6.7 The Hirer must pay the Hire Fee and any other amounts payable in full to the Agent prior to the Hire Equipment being handed
over or delivered, access granted or as otherwise agreed between the Owner and the Hirer.
6.8 If agreed between the Agent, Owner and Hirer, the Agent will issue a tax invoice to the Hirer for the Hire Period for the Hire Fee
and any other amounts payable and the Hirer must pay the tax invoice in full in accordance with the date for payment prescribed on the tax invoice.
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6.9 Payment can be made via cash, bank cheque, electronic funds transfer or credit card (credit card surcharges will apply in accordance with the minimum prescribed amount permissible under the Competition and Consumer Amendment (Payment Surcharges) Act 2016, which may change from time to time) to the Agent's nominated account and interest at 1.5% per month may be charged on overdue amounts until paid.
6.10 GST, delivery costs and any taxes and duties that may be applicable must be added to the Hire Fee except when they are expressly included in the Hire Fee.
6.11 The Agent may set-off against any credit owed to the Hirer any amount owing by the Hirer to the Agent.
6.12 In the event the Hirer does not refuel the Hire Equipment at the end of the Hire Period, the Owner will refuel the Hire Equipment
and fuel will be charged to the Hirer at a rate to be determined by the Owner from time to time.
6.13 The Hirer will be responsible to ensure all fire safety precautions and obligations are fulfilled.
7 PERIOD OF HIRE
7.2 The Hire Fee are based upon the agreed Hire Period. If the Hire Equipment is used in excess of these hours, an additional hiring charge will be applied at the Agent or Owner’s discretion.
7.3 The Hire Period includes all time for which the Hire Equipment is in the Hirer’s possession (including weekends and public holidays) and shall commence from the time the Hire Equipment available for hire by the Hirer or delivered to the Hirer and will cease once the Hire Equipment is vacated in the same condition as at the commencement of the Hire Period and returned to the Agent or Owner or collected by the Agent or Owner (“Hire Period”).
8 FORCE MAJEURE
8.2 The Agent or Owner will not be responsible for any delay or failure to deliver or have Hire Equipment available for hire due to causes beyond its control including but not limited to acts of God, war, terrorism, strike, lock-out, industrial action, fire, flood, drought, storm, pandemic or any other event beyond the reasonable control of either party.
8.3 Any and all delivery is carried out at the Hirer’s risk.
8.4 The Agent or Owner is not a “common carrier” and will accept no liability as such. All Hire Equipment is carried or transported for
the purposes of delivery only and subject to these terms and conditions and the Agent and Owner reserves the right to refuse the carriage or transport of the Hire Equipment at its sole discretion.
9 HIRING OBLIGATIONS
9.2 The Hirer shall:
9.2.1 determine the condition and suitability of the Hire Equipment for the purpose required and acknowledges that the Agent
and Owner gives no warranty that the Hire Equipment is suitable for the Hirer’s purpose;
9.2.2 Use the Hire Equipment in a safe, skilful, and proper manner in accordance with the law, only for its intended use, within
the capacity for which it was designed and in accordance with any instructions supplied by the manufacturer or Agent or
Owner;
9.2.3 Ensure all persons operating or erecting any equipment or the Hire Equipment are suitably instructed in its safe and proper
use and where necessary hold a current Certificate of Competency and/or are fully licensed;
9.2.4 Comply with all occupational health and safety laws relating to the Hire Equipment and its operation;
9.2.5 At the Hirer’s own expense clean, and maintain the Hire Equipment in good and substantial repair and condition during the
Hire Period, and ensure that all rubbish is removed and disposed of away from the Hire Equipment and location;
9.2.6 Clean the Hire Equipment thoroughly and remove all rubbish upon completion of the Hire Period, failing which the Hirer will be charged a cleaning fee at a rate to be nominated by the Agent or Owner at its discretion for any cleaning or rubbish
removal required to be performed;
9.2.7 Accept full responsibility for the safe-keeping and insuring of the Hire Equipment during the Hire Period and indemnify the
Agent and Owner for all loss, theft, or damage to the Hire Equipment howsoever caused and whether or not such loss, theft
or damage is attributable to any negligence, failure or omission of the Hirer;
9.2.8 Accept full responsibility for, and indemnify the Agent and Owner against all claims, judgment, damage, loss, expense
(including all legal costs and disbursements) or liability incurred or suffered by the Agent or Owner in respect to any injury to persons, or loss or damage to property, arising out of the delivery, servicing, storage, possession or use (including unauthorised use) of the Hire Equipment during the Hire Period howsoever arising, whether from negligence of the Hirer or otherwise and whether or not the Hire Equipment was being operated by a servant of the Agent or Owner or any other person for whose acts the Agent or Owner might be or is held to be responsible in connection with the use or operation of the Hire Equipment;
9.2.9 Not claim any lien over the Hire Equipment nor sell, transfer, mortgage, charge or encumber the Hire Equipment or assign the benefit of this Agreement;
9.2.10 Not remove the Hire Equipment or allow it to be removed from the site from which it was hired;
9.2.11 Not alter, make any addition to, deface or erase any identifying mark, plate or number on or in the Hire Equipment or
in any other manner interfere with the Hire Equipment;
9.2.12 Ensure that no illegal, prohibited or dangerous substances are used, carried in or on the Hire Equipment;
9.2.13 Ensure that all safety information, notices, terms and conditions, operating instructions and risk assessments supplied
with the Hire Equipment will be conveyed to any person using the Hire Equipment are not defaced or removed from the Hire Equipment;
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9.2.14 Maintain any safety signs supplied with the Hire Equipment or as required by State or Federal legislation, bring them to the attention of any person using the Hire Equipment and ensure that they are clearly visible to or by the user or the operator of the Hire Equipment;
9.2.15 Ensure that all Hirers, Hirer’s Associates, users and operators of the Hire Equipment wear suitable clothing and any protective equipment required or recommended by the manufacturer’s safety and operating instructions, or as recommended by the Agent or Owner;
9.2.16 Ensure that a job safety analysis is conducted prior to operating any electrical or mechanical Hire Equipment to ensure safe working methods apply;
9.2.17 Comply with all environmental, health and safety laws from time to time and immediately rectify any breach of any law caused by using the Hire Equipment;
9.2.18 Allow the Agent and Owner to inspect the Hire Equipment from time to time during the Hire Period and permit the Agent and Owner and/or representatives of the Owner to access the premises upon which the Hire Equipment is situated for that purpose;
9.2.19 Accept full responsibility for any damage to the Hire Equipment; and
9.2.20 Pay any lost profit to the Agent or Owner arising from or in connection with the loss, theft or damage to the Hire
Equipment, including without limitation, lost profit resulting from the inability of the Agent or Owner to hire the Hire Equipment to any other party.
10 DEFAULT & CONSEQUENCES OF DEFAULT
10.2 Interest on overdue invoices or outstanding amounts payable to the Agent or Owner shall accrue daily from the date when payment becomes due, until the date of payment, at a rate of 1.5% per calendar month and such interest shall compound monthly at such rate before and after any judgment.
10.3 If the Hirer defaults in payment of any invoice or amounts payable to the Agent or Owner when due, the Hirer shall indemnify the Agent and Owner from and against all costs and disbursements incurred by the Agent or Owner in pursuing the debt including legal costs on a solicitor and own client basis and the Agent or Owner's collection agency costs and such costs and disbursements are a liquidated debt.
10.4 Without prejudice to any other remedies the Agent or Owner may have, if at any time the Hirer is in breach of any obligation (including those relating to payment), the Agent or Owner may make any claim, sue for damages, loss of profits, or suspend or terminate the supply of Hire Equipment to the Hirer and any of its other obligations under the terms and conditions. The Agent and Owner will not be liable to the Hirer for any loss or damage the Hirer suffers because the Agent or Owner has exercised its rights under this clause.
10.5 Without prejudice to the Agent or Owner's other remedies at law the Agent or Owner shall be entitled to terminate this Agreement, and cancel all or any part of any order of the Hirer which remains unfulfilled and all amounts owing to the Agent or Owner shall, whether or not due for payment, become immediately payable in the event that:
10.5.1 if the Hirer commits any breach of this Agreement, or does or permits to be done, any act or omission whereby the
Agent’s or Owner’s rights in or to the Hire Equipment may be prejudiced;
10.5.2 any money payable to the Agent or Owner becomes overdue, or in the Agent or Owner’s opinion the Hirer will be
unable to meet its payments as they fall due; or
10.5.3 the Hirer becomes insolvent, convenes a meeting with its creditors or proposes or enters an arrangement with
creditors, or makes an assignment for the benefit of its creditors; or
10.5.4 a receiver, manager, liquidator (provisional or otherwise) or similar person is appointed in respect of the Hirer or any
asset of the Hirer.
10.6 In the event the Agent or Owner terminates this Agreement, then upon the Agent or Owner giving the Hirer 24 hours’ notice of
its intention to remove the Hire Equipment and require the Hirer to vacate and return the Hire Equipment , the Hirer expressly authorises the Owner to enter the premises where the Hire Equipment is located and arrange for its removal and eviction of any persons.TheHirePeriodshallnotceaseuntiltheHireEquipmenthasbeenremovedandreturnedtotheOwner andtheHirer and all persons have vacated the Hire Equipment leaving it in the same condition as at the commencement of the hire and the costs associated with any removal or vacation will be charged to the Hirer.
10.7 The Agent or Owner shall not be liable for any damage caused to the Hirer’s property as a result of removing or vacating the Hire Equipment, nor will it be responsible or liable for any personal property left at or inside the Hire Equipment when it is removed, vacated or returned to the Owner.
11 BREAKDOWN OR FAILURE OF HIRE EQUIPMENT
11.2 IntheeventofanyHireEquipmentbreakdown,damageorfailure,theHirerisrequiredtonotifytheAgentandOwnerimmediately. Such notification does not absolve the Hirer from its requirement to safeguard the Hire Equipment until it is returned to the Agent or Owner or collected by the Owner.
11.3 In the event of any Hire Equipment breakdown, damage or failure the Hirer shall not repair or attempt to repair the Hire Equipment without the prior consent of the Agent or Owner.
11.4 If the Hire Equipment breaks down is damaged or fails or becomes unsafe, the Hirer must immediately stop using the Hire Equipment and take all necessary steps to prevent injuries to any persons or damage to any property as a result of the condition of the Hire Equipment.
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11.5 The Hirer uses the Hire Equipment at its own risk and the Agent and Owner shall not be liable for any expenditure, property damage, personal injury, damages, loss, claim or inconvenience incurred by the Hirer arising out of any use or breakdown in the Hire Equipment whether caused by fair wear and tear, lack of repair or negligence on the part of the Agent or Owner or any other reason whatsoever.
11.6 If any Hire Equipment breaks down, fails or is damaged due to the Hirer’s or Hirer’s negligence or wilful misuse the Agent and Owner is entitled to continue to charge the Hire fee and any other applicable charges until the Hire Equipment has been repaired or replaced and the Agent and Owner may recover the cost of any repairs that are carried out to the Hire Equipment from the Hirer.
12 ELECTRICAL EQUIPMENT
12.2 All electrical equipment is not included in the hire and the Hirer must use their own electrical and photographic equipment and the Hirer must ensure all electrical and photographic equipment used has been safety checked, tested and tagged prior to hire in accordance with the latest applicable Australian Standard(s) and Regulatory Authority requirements.
13 PRIVACY POLICY PRIVACY ACT 1988
13.2 Wearecommittedtoprotectingyourprivacyandrespecttheconfidentialityofinformationandpersonaldataprovidedandcomply with Australian Privacy Principles and use the information we collect to enhance services and we use all reasonable means to protect your personal data and we may transfer across borders for storage, disclose only as required by law or to protect our rights or the rights of Owners, Agent or third parties and retain only for as long as necessary.
13.3 The Hirer, Owner and the Guarantor (if any) agree to the Agent or Owner obtaining from a credit reporting agency a credit report containing personal credit information about the Hirer, Owner and Guarantor.
13.4 The Hirer Owner and the Guarantor (if any) agree that the Agent or Owner may exchange information about the Hirer, Owner and Guarantor with those credit providers either named as trade referees by the Hirer or Owner or named in a consumer credit report issued by a credit reporting agency for the following purposes:
13.4.1 to assess an application by a Hirer;
13.4.2 to notify other credit providers of a default by the Hirer or Owner;
13.4.3 to exchange information with other credit providers as to the status of this credit account, where the Hirer or Owner
is in default with other credit providers; and
13.4.4 to assess the credit worthiness of the Hirer, Owner and Guarantor.
13.5 The Hirer or Owner consents to the Agent or Owner being given a consumer credit report to collect overdue payment on commercial credit (Section 18K(1)(h) Privacy Act 1988).
13.6 The Hirer and Owner agree that personal credit information, commercial and consumer information may be collected, used, disclosed and retained by the Agent or Owner for the following purposes and for other purposes as shall be agreed between the Hirer, Agent and Owner or required by law from time to time for:
13.6.1 provision of the Hire Equipment;
13.6.2 marketing of the Hire Equipment by the Agent Owner, its agent or distributors in relation to the Hire Equipment;
13.6.3 analysing, verifying and/or checking the Hirer’s credit, payment and/or status in relation to provision of the Hire
Equipment;
13.6.4 processing of any payment instructions, direct debit facilities and/or credit facilities requested by the Hirer or Owner;
and
13.6.5 enabling the collection of amounts outstanding in relation to the Hire Equipment;
14 INSURANCE
14.2 The Hirer must produce to the Agent a satisfactory Certificate of Currency for a policy of insurance that covers the Agent and Owner and Hirer for public liability in the sum of $20,000,000 and all risks and loss or damage to the Hire Equipment for an amount not less than the full new replacement cost of the Hire Equipment, loos of income and which is otherwise satisfactory to the Agent and Owner in their absolute discretion.
14.3 The Certificate of Currency must be valid during the Hire Period and state for “Hire Equipment” or listed on the Hirer’s policy for the specific Hire Equipment and value covering the replacement cost of full new replacement cost.
14.4 Without limitation to any other provision of this Agreement and notwithstanding the payment of any Insurance, the Hirer remains responsible for and the Agent and Owner may claim from the Hirer any loss or damage however caused and including in respect of any:
14.4.1 Theft of the Hire Equipment;
14.4.2 Electrical or mechanical breakdown or failure caused by the Hirer;
14.4.3 Tyres and tube punctures, blowouts, bursts, personal injury, bruises or cuts;
14.4.4 Glass breakage of, or graffiti on, the Hire Equipment;
14.4.5 Damage to Hire Equipment and paintwork;
14.4.6 Wrongful conversion of the Hire Equipment or any components of the Hire Equipment; or
14.4.7 loss of, or damage to, the Hire Equipment which is caused, or contributed to, by:
14.4.7.1 a breach or contravention of the Hire Agreement;
14.4.7.2 use of the Hire Equipment in violation of any relevant rules, laws or regulations;
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14.4.7.3 14.4.7.4 14.4.7.5
14.4.7.6 14.4.7.7
misuse, abuse, overloading or incorrect loading of the Hire Equipment or any of its components;
overloading or artificial electrical current to motors or other electrical appliances or devices,
the Hire Equipment being located, used, loaded, unloaded, transported on or over water, wharves, bridges or vessels of any kind;
exposure to any corrosive or caustic substance, such as cyanide, salt water, acid or like substances; or transport of the Hire Equipment, except where transported by the Agent or Owner.
15 PERSONAL PROPERTY SECURITIES ACT 2009 (“PPSA”)
15.2.1 In this clause the terms financing statement, financing change statement, security agreement, and security interest have the meanings defined by the PPSA.
15.2.2 The Hire Equipment will remain the property of the relevant Owner and the make up bus the property of the Agent at all times.
15.2.3 The Hirer acknowledges and agrees with the Agent and Owner that for the purposes of the PPSA and all regulations made under the PPSA:
15.2.3.1 15.2.3.2
The Agreement constitutes a security agreement;
A security interest and if applicable a purchase money security interest (PMSI), is taken by the Agent and Owner in respect of the Hire Equipment and is a continuing & subsisting security interest attaching to all Hire Equipment now or in the future supplied by the Agent or Owner to the Hirer; and
The Agent or Owner may at its discretion register a financing statement or financing change statement in respect of its security interest including any PMSI.
15.2.3.3
15.2.4 The Hirer undertakes to:
15.2.4.1
15.2.4.2
15.2.4.3 15.2.4.4
sign any and all further documents and provide any and all further information (such information to be accurate and up to date in all respects), which the Agent or Owner may reasonably require to protect its rights in relation to the Hire Equipment, to register a financing statement or a financing change statement on the Personal Property Securities Register established under the PPSA, or to maintain any registration of any security interest including any PMSI;
indemnify and upon demand reimburse the Agent and Owner for all expenses incurred in protecting its rights in relation to the Hire Equipment, registering a financing statement or financing change statement on the Personal Property Securities Register, maintaining any registration or releasing any property secured;
Not register a financing statement or financing change statement in relation to any security interest or any PMSI, without the prior written consent of the Agent and Owner;
Give the Agent and Owner not less than fourteen (14) days prior written notice of any proposed changes in the Hirer’s name or any other change in the Hirer’s structure, operations, management or other details that may affect any registration of any security interest including any PMSI.
15.2.5 The Hirer agrees that to the extent mentioned in section 115(1) (a) to (r) (inclusive) of the PPSA, the parties contract out of each of the provisions of the PPSA mentioned in that section. The Hirer also waives its right to receive a copy of any financing statement, financing change statement or verification statement.
15.2.6 Subject to any express provisions to the contrary nothing in these terms and conditions is intended to have the effect of contracting out of any of the provisions of the PPSA.
16 GENERAL
16.2 If any provision of these terms and conditions is invalid, void, illegal or unenforceable the validity, existence, legality and
enforceability of the remaining provisions are not affected, prejudiced or impaired.
16.3 The Agent and Owner are not liable to the Hirer or Hirer’s Associates for any loss or damage, indirect loss and/or expense
(including loss of profit) suffered by the Hirer or Hirer’s Associates arising out of a breach by the Agent or Owner of these terms
and conditions.
16.4 The Agent is not liable to the Owner for any loss or damage, indirect loss and/or expense (including loss of profit) suffered by the
Owner arising out of a breach by the Agent or the Hirer or the Hirer’s Associates of these terms and conditions or any agreement.
16.5 The Agent reserves the right to review these terms and conditions at any time.
16.6 In the event of any breach of these terms and conditions or any agreement by the Agent or Owner, the remedies of the Hirer or
Hirer’s Associate are limited to damages which under no circumstances shall exceed the Hire Fee of the Hire Equipment.
16.7 The Agent or Owner may assign, license or sub-contract all or any part of its rights and obligations without the Hirer’s or
Guarantor’s consent.
16.8 The failure by the Agent or Owner to enforce any provision of these terms and conditions is not treated as a waiver of that
provision, nor shall it affect the Agent’s or Owner’s right to subsequently enforce that provision.
16.9 The electronic acceptance of any agreement, accepted quotation, application, work authorisation, invoice or purchase order and these terms and conditions constitutes the entire agreement between the parties and all previous negotiations, understandings
or representations are merged in the Agreement.
17 GUARANTEE AND INDEMNITY
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17.2 The Agent or Owner may require another individual or legal entity as Guarantor to guarantee the Hirer’s obligations, rights and debts under this Agreement on terms required by the Agent or Owner.
17.3 Each party signing or electronically giving any Guarantee and Indemnity attached or under this Agreement:
17.3.1 Confirms its request to the Agent or Owner to grant this Agreement;
17.3.2 Agrees to be bound as a party to the Agreement; and
17.3.3 Accepts and undertakes to all obligations of the Hirer in the Agreement.
17.4 If there are two or more Guarantors, each Guarantor is liable for the obligations individually and together with each other
Guarantor.
18 AGENCY AGREEMENT
18.2 All Owners accept and agree to these Terms and Conditions and by making any Hire Equipment including locations, vessels and vehicles available for hire have entered an Agency Agreement with the Agent including the following terms.
18.3 All Owners agree to appoint the Agent as exclusive agent to arrange Hire Agreements with Hirers on behalf of the Owner.
18.4 The Agent acts only as agent and is authorized by the Owner to enter into Hire Agreements with the Hirers on behalf of the
Owner.
18.5 All Owners agree that as there is a risk of damage or injury and whilst Hirers are responsible and must be insured under the
Terms and Conditions the Agent has no liability or responsibility and all Owners release and indemnify the Agent against all
claims, costs and expenses.
18.6 All Owners must maintain the Hire Equipment in good working condition, ensure all Hire equipment has all approvals and is
compliant with all legal requirements and must maintain public liability insurance of $20,000,000 and property and all risks
insurance to the full replacement value of all Hire Equipment.
18.7 The Agency fees which the Agent charges for acting as the Owner’s agent under these Terms and Conditions are as agreed
and may change from time to time by notice from the Agent. The Agent is entitled to receive all Hire Fees, retain Agency fees
and remit balance to the Owner as agreed from time to time.
18.8 Owners must keep the Agent informed concerning the availability of the Hire Equipment.
18.9 Owners must secure and insure all valuables in the Hire Equipment.
18.10 Owners must obtain from all owners of copyright or intellectual property in anything in the Hire Equipment consents
and licences to use the work in photoshoots and filming at no additional cost to the Agent.
Nothing in the Agency Agreement constitutes an employment, partnership, joint venture or fiduciary relationship other than as Agent and principal.
19 INTELLECTUAL PROPERTY:
19.2 In connection with the provision of the services, the Agent and the Hirer may generate, create, write or produce intellectual property ("Created IP"), including but not limited to plans, reports, drawings, specifications, advice, analyses, designs, methodologies, code, artwork, photography, film, Content or any other intellectual property.
19.3 Unless otherwise agreed between the Parties, any intellectual property rights in any Created IP generated by the Agent shall belong to the Agent and generated by the Hirer shall belong to the Hirer.
19.4 The Owner assigns to the Agent all right, title and interest in and to Created IP generated by the Agent and any images worldwide and in perpetuity and consent and permission is granted to use in any media for any purpose
19.5 The Owner assigns to the Hirer all right, title and interest in and to Created IP generated by the Hirer and any images worldwide and in perpetuity and consent and permission is granted to use in any media for any purpose.
20 LIMITATION OF LIABILITY:
20.2 The Owner appoints the Agent and makes the Hire Equipment available for hire at its own risk and waives all right to make any claim against the Agent.
20.3 To the maximum extent permitted by law, the Agent's liability in contract, tort or otherwise arising through or in connection with this Agreement or through or in connection with the fulfilment of obligations under any Agreement shall be limited to Fees paid by the Owner to the Agent.
20.4 To the extent it is lawful, the Agent shall be not liable to the Owner in contract, tort, negligence, breach of statutory duty or otherwise for any loss, damage, costs or expenses of any nature whatsoever incurred or suffered by the Owner of an indirect or consequential nature including without limitation any economic loss, data loss, loss of goodwill, or other loss of turnover, profits or business.
20.5 In the event of injury or damage the Agent will provide contact details of Hirer to the Owner and vice versa and both Hirer and Owner are responsible to resolve any issue or dispute concerning liability.