Event Solutions – Terms & Conditions of Hire
THIS AGREEMENT IS MADE BETWEEN:
(1) Lumi Limited of PO Box 34320, Birkenhead, Auckland 0746 (“Owner”);
(2) The Party whose name and address appears on the Order to which these Terms and Conditions relate(“Hirer”)
IT IS HEREBY AGREED AS FOLLOWS:
The Owner agrees to provide for hire and provide the Services and the Hirer agrees to hire the equipment set out in the attached Order Form (“Audience Response Equipment”) on the terms and conditions set out herein. For the purposes of this Agreement, “Dry Hire” shall mean the supply of the Audience Response Equipment only, with no additional services to be provided by the Owner; “Wet Hire” shall mean the supply of the Audience Response Equipment, together with the supply of additional services, as detailed in the Order Form.
2. Basis of Charging
2.1 All charges are payable in accordance with the payment terms set out on the Order Form. The Hirer will pay the invoice within 30 days of the date of the invoice.
2.2 The Hirer will be responsible for payment of all subsistence, accommodation, parking, travel and other expenses incurred by the Owner in providing the services.
2.3 If the Hirer fails to pay an amount due under this agreement, it must pay, on request from the Owner, interest on that amount at the rate of 3% per annum above the rate quoted by Westpac Banking Corporation on the due date as being the bank’s bill rate expressed as a percentage per annum and a yield to maturity for bills of exchange having a tenure of 90 days, from the due date until the date of payment, such interest to be calculated daily and compounded monthly.
2.4 If the Hirer has not paid an invoice within the due date for payment the Owner has the right to suspend any further equipment hire or services until the amount overdue has been paid in full.
This contract commences on signature of the Order Form by the parties. It will be terminated when all parties have discharged their contractual obligations.
4. Responsibilities of Person Signing
The person signing the contract and any supplementary documentation on behalf of the Hirer warrants that they have the authority of the Hirer to enter into this contract on the Hirer’s behalf. The said person hereby indemnifies the Owner against all losses and costs that may be incurred by the Owner if this is not so.
The Hirer shall at all times and in all respects indemnify on demand the Owner against and from, any and every expense, liability, loss, claim or proceeding whatsoever in respect of any personal injury whatsoever and in respect of damage to any property whatsoever (including the Audience Response Equipment) arising out of or in connection with or consequent upon the hire, delivery, use, misuse, non-use, collection or return of the Audience Response Equipment by the Hirer or any part thereof.
6.1 Regardless of whether the system is operated by the Hirer or the Owner’s appointed personnel, the Owner shall not be liable for any indirect or consequential expense, liability, loss, damage, claim or proceeding, whatsoever caused by, or arising out of, the late delivery, non-delivery, unsuitability, or repossession of the Audience Response Equipment, or any part thereof or any breakdown, or stoppage of the same.
6.2 Without prejudice to the foregoing, the Owners total liability howsoever arising shall be limited to the charges received by it hereunder.
7. Loss of or Damage to Audience Response Equipment
7.1 The Hirer shall at all times during the term of this Agreement, have a duty of care to the Audience Response Equipment with at least the same standard of care as it does to its own assets. Such care shall include, without limitation, provision of a safe and secure environment for, where appropriate, the transportation, storage and use of the Audience Response Equipment.
7.2 In the event that the Audience Response Equipment is lost or damaged as a result of the Hirer not complying with clause 7.1, or otherwise due to the Hirer’s negligence or any negligent act or omission by the Hirer’s employees, contractors, suppliers or any third parties under its control, the Hirer shall pay to the Owner, on demand, the standard list price for purchase of the Audience Response Equipment so lost or damaged.
8. Carriage Charges
Unless specifically stated in the Order Form, hire charges do not include carriage and any expenses incurred by the Owner in delivering or recovering the Audience Response Equipment. The Hirer will pay all such charges.
9. Handling Fee
The Owner will charge a handling fee on all transportation, Audio Visual equipment, excess baggage and other costs incurred whilst undertaking the contractual obligations between Hirer and Owner.
10.1 Cancellation of this contract by the Hirer for whatever reason will make it liable to pay immediately on demand all Charges due to the Owner as follows:
More than 60 days from event – 10%
Less than 60 days from event – 25%
Less than 30 days from event – 50%
Less than 7 days from event – 100%
Cancellation charges apply to equipment and crew only, unless other work has already commenced, in which case the charges for those services will also become due if cancelled. Reduction in handsets / equipment, after confirmation, will also result in the above charges being applied.
10.2 In the event that the Hirer wishes to assert that the Owner did not perform its obligations as set out in this agreement, it shall do so within 10 working days of completion of the term of this agreement.
11. Return of equipment
In respect of Dry Hire and Wet Hire where the Hirer is responsible for arranging transportation of the Audience Response Equipment, the Hirer is responsible for returning the equipment prior to 17.30 on the expiry date of the contract unless otherwise arranged. Late returns will be charged at the then current daily hire rate.
12. Electrical Equipment
12.1 In respect of Dry Hire, the Hirer acknowledges that the Audience Response Equipment comprises electrical equipment and should normally be used with plugs and/or sockets as fitted but if temporarily replaced with other suitable plugs or sockets, this must be carried out by a competent person who must also reinstate to the original condition and under no circumstances should electrical Audience Response Equipment be used without it being correctly earthed unless it is of double insulated construction. In respect of Wet Hire, the Hirer must, under no circumstances, allow anyone but the Owner’s authorised representatives to have access to the Audience Response Equipment.
12.2 The Owner shall not be liable for any liability arising from any failure of the Hirer to comply with this clause.
13.1 Risk in the Audience Response Equipment transfers to the Hirer where he takes receipt of it either for Wet or Dry Hire and, in such circumstances, continues until the Hirer confirms receipt of return of all Audience Response Equipment. The Hirer agrees that he will not sell or otherwise part with control of the Audience Response Equipment.
13.2 In respect of Dry Hire, the Hirer undertakes to ensure that no one uses the Audience Response Equipment who is not properly instructed and shall not allow the Audience Response Equipment to be misused.
13.3 The Hirer hereby acknowledges that it is responsible for satisfying itself of the suitability and fitness for its own purpose(s) of the Audience Response Equipment and that the Owner shall not be liable for any failure of the Audience Response Equipment to meet the requirements of the Hirer save as explicitly set out herein.
14. Ownership of Software
14.1 Owner owns all proprietary and intellectual property rights in the Audience Response Equipment, the software embedded therein and any material arising from the use or manipulation of the software (including but not limited to copyrights, patents, trade marks and trade secrets).
14.2 The Hirer may not copy or keep any part of the Audience Response Equipment and the elements of the software.
14.3 The Hirer undertakes not to translate, decompile or reverse-engineer any part of the software or allow any third party to carry out such activities unless prior agreement is received in writing from the Owner.
14.4 The Hirer may only use the software provided by Owner on the computers supplied or authorised as compatible by the Owner.
15. Ownership of Data
All intellectual property rights in the data collated, resulting from, or produced by use of the Audience Response Equipment shall vest in the Hirer on receipt of payment in full therefore to the Owner. All pre-existing patents, trademarks, copyright and all other intellectual property rights shall remain with the Owner and/or its licensor.
This Agreement constitutes the entire understanding between the parties concerning the subject matter of this Agreement. No waiver or amendment of any provision of this Agreement shall be effective unless made by a written instrument signed by both parties. Each provision of this Agreement shall be construed separately and notwithstanding that the whole or any part of any such provision may prove to be illegal or unenforceable the other provisions of this Agreement and the remainder of the provision in question shall continue in full force and effect.
Both parties shall comply with their obligations pursuant to the Privacy Act 1988 (Cth).
18.1 Unless otherwise specified, any reference to an amount payable or consideration to be provided for a supply to be made by Owner under or in connection with this Agreement is a reference to that amount or consideration having been determined without provision for GST payable by Owner in respect of that supply (‘GST Exclusive Amount’).
18.2 If any supply made by a party to this agreement under or in connection with this Agreement is a taxable supply, the GST Exclusive Amount for that supply must be increased by an amount equal to any GST which a party is or becomes liable to pay in respect of the supply so that that party retains, after deducting the GST, the GST Exclusive Amount.
18.3 Owner must provide to Client a tax invoice for each taxable supply it makes under or in connection with this Agreement.
18.4 Hirer must pay and indemnifies Owner against any tax (other than income tax), duty or charge payable arising out of the provision of the Services or otherwise relating to this Agreement or any transaction contemplated by this agreement
19. Force Majeure
Neither party shall be responsible for delays or failure to perform any of its obligations under the terms of this Agreement resulting from acts beyond the reasonable control of such party. Such acts shall include, but not limited to, acts of God, strikes, lockout, riots, acts of war, epidemics, governmental regulations superimposed after the fact, communication line failures, power failure, earthquakes or other disasters, or any failure or breakdown of any system, computer, internet connection, Wi-Fi Network or otherwise.
20. Governing Law and Jurisdiction
The law of New Zealand shall govern the rights and obligations of the parties to this contract; the construction of the same; and, so far as possible, all other matters arising out of or connected with, the making, execution and termination of the same and both parties hereby submit to the exclusive jurisdiction of the New Zealand Courts.