Terms and conditions

RECITALS

A. The Company wishes to hire the agreed equipment and / or services from the Supplier.

B. If the Company declines the services of the Supplier, the Company has the skills, background and experience to use the hired equipment.

C. The Supplier has agreed to provide the hired equipment and / or services; and the Company agrees the equipment will only be used for the nominated purpose and in accordance with all relevant skills, qualifications, safety guidelines and requirements as per the manufacturers’ guidelines.

D. The Company agrees to abide by the terms set out herein.

OPERATIVE PART

This Agreement records that the Parties have agreed as follows:

1. PRELIMINARY

1.1 Dictionary

In this Agreement, unless the context otherwise necessarily requires:

Confidential Information includes any information marked as confidential and any information received or developed by the Company during the term of this agreement, which is not publicly available and relates to processes, equipment and techniques used by the Company in the course of the Company’s business including all information, data, drawings, specifications, documentation, source or object code, designs, construction, workings, functions, features and performance notes, techniques, concepts not reduced to material form, agreements with third parties, schematics and proposals and intentions, technical data and marketing information such as customer lists, financial information and business plans.

Dispute has the meaning given to that term in clause 14.

Event means The Event to be organised by the Supplier on behalf of the Company, on the Event Date.

Event Date means the date references on the title page of the agreement.

Facilities means working space, computer equipment, access to the internet and the Company’s computer network, telecommunications system etc, and includes not only access to such resources but also use of them to the extent required by the Supplier in order to utilise and / or operate the equipment;

Fee means the fee as stated in clause 4 of this Agreement.

GST means the tax payable on taxable supplies under GST Laws.

GST Laws means the A New Tax System (Goods and Services Tax) Act 1999 (Cth) and any related Act imposing goods and services tax or legislation that is enacted to validate, recapture or recoup such tax.

Notice has the meaning given to that term in clause 14.

Parties means the Supplier and the Company, and Party means either one of them.

Representative in relation to a Party means a director, officer, employee, agent, consultant or professional adviser of or representing the Party.

Services means the services as stated in Recital A herein.

Supplier’s Personnel means any person or persons that the Supplier designates to assist the Company on the Supplier’s behalf.

Tax Invoice includes any document or record treated by the Commissioner of Taxation as a tax invoice under the GST Laws or as enabling the claiming of an input tax credit for which an entitlement otherwise arises.

1.2 Other Interpretative Provisions

In this agreement unless the context otherwise requires:

(a) words importing any gender include every gender;

(b) words importing the singular number include the plural number and vice versa;

(d) references to numbered clauses, paragraphs and schedules are references to the relevant clause or paragraph in or schedule to this agreement;

(e) reference in any schedule to this agreement to numbered paragraphs relate to the numbered paragraphs of that schedule;

(f) any obligation on any Party not to do or omit to do anything is to include an obligation not to allow that thing to be done or omitted to be done;

(g) the headings to the clauses and schedules of this agreement are not to affect the interpretation;

(h) any reference to an enactment includes reference to that enactment as amended or replaced from time to time and to any subordinate legislation or bylaw made under that enactment; and

(i) the word “including” (and related forms including “includes”) will be understood as meaning “including without limitation”.

2. ENGAGEMENT

The Company engages the Supplier to provide the equipment and / or Services on behalf of the Company on the terms and conditions of this Agreement. The Supplier is free to hire other equipment and / or services from other parties. The Supplier is engaged by the Company as an independent contractor.

3. DUTIES OF THE SUPPLIER

The Supplier will ensure the performance of the equipment and /or services in relation to the Event and / or Purpose. The Supplier will only be responsible to provide the equipment and / or services as particularised in Recital A. The Company agrees that the Supplier may engage, at its complete discretion, third party contractors to operate the equipment.

4. FEE

(a) In consideration for the Supplier agreeing to provide the equipment and / or services it shall be paid the Fee by the Company, as follows:

(i) deposit 1 payable by not less than 14 days prior to the Event Date.

(ii) balance payable by not less than 30 days post the Event Date.

** NB: final balance will vary based on reconciliation of the hire agreement post event and / or purpose.

(b) All monies comprising the Fee are to be deposited by EFT into the account:

Name: Lux Events Pty Ltd
Bank: NAB
BSB No: 086 366
Acct No: 54537 6921

(c) The Supplier must provide the Company with a tax invoice in accordance with the GST Law in relation to remuneration payable under this clause. Payment must be made by the Company to the Supplier within 7 days following receipt of the Supplier’s invoice. Interest will accrue on any outstanding unpaid invoice at 12% per annum.

(d) The invoice referred to in clause 4(c) must include the following details before payment can be approved and forwarded:

(i) Reference this agreement number

(ii) The Supplier’s ABN

(e) The Supplier will not charge, and the Company will not be liable, for any expenses, charges, costs, fees except the Fees as set out in the Agreement.

(f) When making a payment, the Company must quote relevant reference numbers and the invoice number.

5. TERMINATION

(a) If notification of cancellation is provided in writing, the following payments are required, based on cancellation time-frames from the commencement date of the agreed hire period of the equipment and / or services, whichever comes first.

(i) 61 + days prior to the date of the commencement of the agreed hire period of the equipment and / or services then only the Administration Fees for time incurred to the date of cancellation, in writing, will be payable.

(ii) 31 – 60 days prior to the date of the commencement of the agreed hire period of the equipment and / or services, then 10% of the full quote will be payable.

(iii) 8 – 30 days prior to the date of the commencement of the agreed hire period of the equipment and / or services, then 25% of the full quote will be payable.

(iv) 2 – 7 days prior to the date of the commencement of the agreed hire period of the equipment and / or services, then 50% of the full event quote will be payable.

(v) Less than 2 days prior to the date of the commencement of the agreed hire period of the equipment and / or services then 75% of the full event quote will be payable.

(b) Either Party may terminate this agreement by notice in writing to the other if the Party notified fails to observe any term of this agreement and fails to rectify this breach, to the satisfaction of the notifying Party, following the expiration of 7 days’ notice of the breach being given in writing by the notifying Party to the other Party.

(c) Notwithstanding anything in this agreement to the contrary, the Company may terminate this agreement at any time by notice in writing to the Supplier, if the Supplier or any of the Supplier’s Personnel is guilty of any dishonesty, serious misconduct or serious neglect of duty, in or in connection with the provision of the equipment and / or services.

(d) Either Party may terminate this agreement upon the happening of any of the following events:

(i) the giving of at least 1 month’s written notice by 1 Party to the other Party of the intention to terminate this agreement;

(ii) if the Company enters into a deed of arrangement or an order is made for it to be wound up;

(iii) if an administrator, receiver or receiver/manager or a liquidator is appointed to the Company pursuant to the Corporations Act 2001 (Cth); or

(iv) if the Company would be presumed to be insolvent by a court in any of the circumstances referred to in the Corporations Act 2001 (Cth).

(e) The Company may, at its discretion, pay to the Supplier the equivalent amount of the fees payable by the Company to the Supplier during the notice period in lieu of any notice period relating to termination of this agreement under clause the giving of at least 1 month’s written notice by 1 Party to the other Party of the intention to terminate this agreement;.

(f) Upon termination of this agreement any fees, expenses or reimbursements payable by the Company to the Supplier in respect of any period prior to the termination date must be paid by the Company within 7 days after the termination date.

(g) Upon termination of this agreement for any reason, the Supplier must deliver, and require that its employees, agents and subcontractors deliver, to the Company all equipment and any other property of the Company which are in the possession or control of the Supplier or the Supplier’s employees, agents or subcontractors at the date of termination.

6. INSURANCE

The Supplier will take out all insurance required to by law, including workers compensation insurance as prescribed by law for the Supplier’s Personnel and public liability insurance for a minimum of an amount to be agreed for each occurrence.

Employer Indemnity:
Zurich
Policy #: 286523PGWC
Lux Events Employer Indemnity Insurance CoC

Public Liability:
Chubb.
Policy # 93170498.
Lux Events Public Liability CoC

Professional Indemnity:
Berkley Insurance Australia.
Policy # 201706-0306 BIA.
Lux Events Professional Indemnity Insurance CoC

7. NO EMPLOYMENT RELATIONSHIP

Nothing in this agreement constitutes the relationship of employer and employee between the Company and the Supplier or between the Company and the Supplier’s Personnel. It is the express intention of the Parties that any such relationships are denied.

8. COMPANY’S OBLIGATIONS

(a) While using and or operating the equipment, the Company will:

(i) cooperate with the Supplier as the Supplier reasonably requires;

(ii) provide the information and documentation that the Supplier reasonably requires;

(iii) make available to the Supplier such equipment and / or services as the Supplier reasonably requires; and

(iv) ensure that the Company’s staff and agents cooperate with and assist the Supplier.

9. SUPPLIER’S OBLIGATIONS

(a) During the period of Hire, the Supplier will:

(i) supply the agreed equipment and / or services by the Event and or Purpose Date, on basis that, the Company has complied with all of its obligations pursuant this Agreement;

(ii) Supply the equipment in good working condition, fit for purpose and in accordance with best practice Industry Standards; the Supplier will ensure the Equipment complies with mandated registrations, testing and maintenance regimes and / or personnel hold the required training, certificates and / or qualifications to be compliant with legislated and industry standards.

10. CONFIDENTIALITY

(a) The Supplier must keep the Company’s Confidential Information confidential and not deal with it in any way that might prejudice its confidentiality.

(b) The Company and the Supplier acknowledge that information resulting from the hire of the Supplier’s equipment pursuant to this agreement will also be regarded as Confidential Information. The Supplier agrees that the Supplier’s obligations in paragraph 9(a) extend to this category of information.

(c) The Supplier’s obligations with regard to the Confidential Information will continue for so long as the Confidential Information is maintained on a confidential basis by:

(i) the Company in the case of Confidential Information pertaining to the Company’s business; and

(ii) the Company’s relevant client, in the case of Confidential Information pertaining to the business of any of the Company’s clients.

(d) At the termination of this agreement, or when earlier directed by the Company:

(i) all Confidential Information must be returned to the Company, including all copies of the Confidential Information or any extracts or summaries of the Confidential Information that the Supplier makes and any software that the Supplier creates based on the Confidential Information; and

(ii) the Supplier must erase and destroy any copies of any software containing or comprising the Confidential Information in the Supplier’s possession or under the Supplier’s control or that may have been loaded onto a computer possessed or controlled by the Supplier.

(e) The Confidential Information does not include information which:

(i) is generally available in the public domain otherwise than as a result of a breach of paragraph 9(a) by the Supplier; or

(ii) was known by the Supplier prior to the Company disclosing the information to the Supplier.

(f) The Supplier agrees that the Company may require any of the Supplier’s Personnel to sign a confidentiality agreement in a form that the Company approves, as a condition of the Company’s acceptance of any of the Supplier’s Personnel.

(g) The Supplier agrees to indemnify the Company fully against all liabilities, costs and expenses which the Company may incur as a result of any breach of this clause by the Supplier.

(h) The Supplier acknowledges that damages may be an inadequate remedy for breach of this clause 9 and that the Company may obtain injunctive relief against the Supplier for any breach of this clause 9.

(i) The obligations accepted by the Supplier under this clause 9 survive termination or expiry of this agreement.

11. USE OF SUBCONTRACTORS

(a) The Supplier is permitted to use other persons to provide some or all of the equipment.

(b) The Supplier will be responsible for the work of any of the Supplier’s subcontractors.

(c) Subject to paragraph 10(d), any work undertaken by any of the Supplier’s subcontractors will be undertaken to the same standard as stated in this Agreement.

(d) To the extent that the terms of any subcontract stipulate a higher standard for any of the equipment than the standards set out in this agreement (including as to timing or quality), any equipment provided by the relevant subcontractor will be governed by the terms and conditions of the subcontract.

12. INDEMNITIES

12.1 The Company Indemnifies the Supplier

On demand the Company will indemnify the Supplier against:

(a) any loss, cost, charge, claim, liability or expense which the Supplier may sustain or incur as a consequence of:

(i) any breach by the Company (or its officers, employees, agents or contractors) of any of its obligations under this Agreement; or

(ii) any act or omission of the Company (or its officers, employees, agents or contractors) in either:

(A) carrying out its obligations under this Agreement; or

(B) resulting from any loss and/or damage caused to third party contractors equipment and/or goods and services used in the Event and or Purpose; and

(b) any out of pocket expenses incurred by or on behalf of the Supplier in relation to the Event whether or not they were incurred in accordance with the hire of the equipment and / or Supplier Services.

13. SURVIVAL OF CERTAIN CLAUSES

Termination of this Agreement does not affect any rights or liabilities which may have accrued to either Party before termination and does not affect the obligations of the Parties under clause 12 which continues in effect as provided in this Agreement.

14. DISPUTE RESOLUTION

14.1 Notice

(a) If any dispute arises in relation to any provision of this Agreement or the obligations of the parties under this Agreement (a Dispute), then;

(b) either party may give notice of a Dispute to the other party (the Notice);

(d) if the Dispute remains unresolved the parties must meet to try and resolve the Dispute in good faith within fourteen (14) days of the date of the giving of the Notice;

(e) if the Dispute remains unresolved at the end of two (2) days following the first meeting of the parties under paragraph 14.1(c), the Dispute is to be referred to the Managing Director of each party;

(f) if the Managing Directors are unable to resolve the Dispute, either party may refer the Dispute to arbitration.

15. GST

15.1 Consideration exclusive of GST

Any consideration or payment obligation in this Agreement is exclusive of GST unless stated otherwise.

15.2 Monetary Consideration

(a) This clause applies if a Supply made under or in connection with this Agreement is a Taxable Supply for which the consideration is a payment of money.

(b) If this clause applies, the consideration for the Supply is increased by an additional amount equal to the amount of that consideration multiplied by the relevant GST rate.

(c) The additional amount under paragraph 15.2(b) is payable at the same time and in the same manner as the consideration for the Supply to which the additional amount relates.

15.3 Non-monetary consideration

(a) This clause applies if a Supply made under or in connection with this Agreement is a Taxable Supply for which the consideration is wholly or partially something other than the payment of money.

(b) The parties intend that no party should be financially disadvantaged by GST in relation to a Supply to which this clause applies.

(c) If GST applies to a Supply to which this clause applies so as to financially disadvantage a party, the parties must renegotiate the terms of that Supply in good faith to amend the agreement to ensure that the parties are in the same financial position as they would have been if GST did not apply. For this purpose, timing differences are ignored.

(d) If it is not possible to put the parties back in the same financial position, the parties will share the financial disadvantage equally.

15.4 Tax Invoice

A party, who receives consideration, whether monetary or otherwise, must give the other party a Tax Invoice in a form which complies with the GST Law within ten (10) Business Days after the end of the month in which any consideration is paid, or an invoice issued in relation to the Supply, whichever occurs first.

15.5 Payments

Unless otherwise stated in this Agreement, the following principles apply when determining the amount of a payment under this Agreement:

(a) if a party is entitled under this Agreement to be reimbursed or indemnified by another party for an expense, claim, loss, liability or expense incurred in connection with this Agreement, the reimbursement or indemnity payment must not include any GST component of the expense, claim, loss, liability or cost for which an Input Tax Credit may be claimed; and

(b) if a party sets off an amount under this Agreement, the same principles apply to calculate the amount to be set-off, as if the amount had been paid in accordance with paragraph 15.5(a).

16. GENERAL PROVISIONS

16.1 Waiver

Failure or omission at any time by any of the Parties to enforce or require strict or timely compliance with a provision of this Agreement does not in any way affect or impair the provision or the rights of the Party to avail itself of and to enforce the remedies it may have in relation to that or any earlier or later breach or non-performance of the provision and the rights and obligations of the Parties are not abrogated, prejudiced or affected by the granting of time, credit or any indulgence or concession by either of the Parties to the other or to any other person or by any compounding, compromise, release, abandonment, waiver, variation, relinquishment or renewal of any rights of a Party or by any omission or neglect or any other dealing, matter or thing.

16.2 Variation of Agreement

This Agreement cannot be varied or modified in any way except by an instrument in writing executed by the Parties.

16.3 Notices

A notice, order, instruction, demand, consent or other document or communication (Notice) required or authorised to be given by or under this Agreement is sufficiently given if:

(a) in writing, to the respective contact details noted at the beginning of this contract;

(b) signed by the Party making the communication or (on its behalf) by the solicitor for, or by any attorney, director, secretary, or authorised agent of, that Party; and

(c) delivered or posted by prepaid post to the address or sent by to the number of the addressee, in accordance with paragraph 14.3(b).

16.4 Further Assurances

Each of the Parties must do or cause to be done or refrain from doing all acts or things necessary to give effect to this Agreement.

16.5 Void Provisions

If any provision of this Agreement is void or voidable or unenforceable in accordance with its terms, but would not be void, voidable, unenforceable or illegal if it were read down and it is capable of being read down, the provision must be read down accordingly.

16.6 Severability

If any provision of this agreement is prohibited by law or judged by a court to be unlawful, void or unenforceable, the provision will, to the extent required, be severed from this agreement and rendered ineffective as far as possible without modifying the remaining provisions of this agreement. This severance will not in any way affect any other circumstances of or the validity or enforcement of this agreement.

16.7 Assignment

Neither the Company nor the Supplier can assign, novate or otherwise transfer any of its rights or obligations under this Agreement without the prior written consent of the other Party.

16.8 Governing Law

This Agreement is governed by, construed and takes effect in accordance with the laws in force in Western Australia and the Parties irrevocably submit to the exclusive jurisdiction of the courts of Western Australia.

16.9 Entire Agreement

(a) This Agreement constitutes the entire understanding and agreement of the Parties in relation to the subject matter of this Agreement and supersedes all prior negotiations, understandings and agreements between the Parties in relation to the subject matter of this Agreement.

(b) The Parties confirm that they have not entered into this agreement on the basis of any representation that is not expressly incorporated into this agreement.