Terms and Conditions:

TERMS AND CONDITIONS

  1. Interpretation
    In this agreement:
    ‘Owner’ means Mad Ferret Media Pty Ltd (ACN 168 325 513) and its subsidiaries, associated entities, successors and permitted assigns and its licensees and/or agents;
    ‘Renter’ means any person who signs this agreement personally or by an agent;
    ‘Goods’ means the Equipment described at Item 1 of Schedule “A” (AKA Hire Agreement) and any replacement for that Equipment and includes all accessories and other equipment;
    ‘Order’ means the date the Renter requests to hire the Goods for the Rental Period.
    ‘Rental Period’ means the period between the Commencement Date and the Termination Date, as set out at Item 2 of Schedule “A” (AKA Hire Agreement)
    ‘Commencement Date’ means the date on which the Renter or his /her agent comes into possession of the Goods.
    ‘Termination Date’ means the date the Goods are redelivered by the Renter or by anyone else to the Owner or, if the Goods are stolen or damaged beyond repair, the date on which the Goods are physically replaced;
    ‘Damage Excess’ means the sum set out in Item 6 of Schedule “A” (AKA Hire Agreement).
    ‘Hire Charge’ means the monies payable for hire of the Goods, by applying the Price List to Item 2 of Schedule “A” (AKA Hire Agreement).
    ‘Price List’ means the Owner’s published Price List which is attached to this Agreement.
    ‘Casualty Occurrence’ means an occurrence if the Goods are lost, stolen, compulsorily acquired, destroyed, seized or confiscated.
    ‘Write-off’ means an occurrence if the Goods are damaged to the extent which in the relevant insurer’s opinion renders repair impractical or uneconomic.
    ‘GST’ has the same meaning as in the A New Tax System (Goods and Services Tax) Act 1999 (Cth).
  2. Rental of Goods
    The Owner agrees to rent the Goods to the Renter for the Rental Period and the Renter agrees to take the Goods on hire for that period and to pay the rental charge set out in the Price List for the Goods for that Rental Period, together with applicable GST, on the terms and conditions set out in this agreement. The Renter is entitled to use the Goods for the Rental Period and for any agreed extension. The Renter agrees to return the Goods to the Owner, at the address set out in Item 3 of Schedule “A” at the end of the Rental Period.
  3. Payment for rental
    1. Prior to or on the Commencement Date, the Renter agrees to pay to the Owner:
      1. the amount of the Hire Charge together with any applicable GST;
      2. the Damage Excess; and
      3. any additional rental charges set out in Item 4 of Schedule “A”, calculated in accordance with the Price List; and
      4. any duties, fees, outgoings, penalties, fines, demands, charges or costs imposed by any authority on or in connection with this agreement or the Renter’s hiring of the Goods.

      Conditions Precedent to Collection of Goods

    2. The Renter agrees to provide to the Owner a copy of the Renter’s identification and credit card details at the time of the Order or at the Commencement Date;
    3. The Renter irrevocably authorises the Owner to complete any documents necessary or desirable to enable the Owner to charge to the Renter’s credit card any payments due to the Owner under the Terms & Conditions of this Agreement.
  4. Renter’s warranties
    The Renter warrants that:

    1. the particulars contained in Schedule “A” (AKA Hire Agreement) are correct in every respect and are not misleading in anyway including, without limitation, by omission;
    2. in selecting the Goods the Renter has not relied on the Owner’s skill and judgment or on any representations made by or on behalf of the Owner and agrees that the Goods comply with their description, are in merchantable condition and are fit for the Renter’s purpose.
  5. Renter’s obligations
    1. The Renter will:
        1. keep the Goods in undamaged condition and only use them as they would be used by a careful and prudent Owner, in accordance with the manufacturer’s instructions;
        2. not modify the Goods without the Owner’s consent;
        3. not use the Goods for any illegal purpose;
        4. report any damage to, or loss of, the Goods to the Owner immediately such damage or loss occurs;
        5. at the end of the Rental Period properly clean the Goods before returning them to the Owner. The Renter agrees that failure to properly clean the Goods will result in an additional cleaning charge;
        6. not take the Goods out of Australia, without the Owner’s prior written permission;
        7. not use the Goods on any abnormal or hazardous assignments;
        8. not transport or use the Goods in helicopters or light aircrafts without the Owner’s prior written consent;
        9. not use the Goods in areas where they could be affected by salt water or atmospheric corrosion;
        10. be liable for any breach of this agreement committed by the Renter’s servants or agents;
        11. use, operate and possess the Goods at the Renter’s risk.
        12. assume liability for, and indemnify and will keep indemnified, protected, saved and harmless the Owner from and against any and all claims for compensation, 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):
          1. arising out of or alleged to arise out of the delivery, selection, acceptance or rejection, 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 Goods, and by whomsoever used or operated during the Rental Period; or
          2. incurred by the Owner in respect of any loss of the Goods by seizure, distress, execution or other legal process, confiscation or forfeiture of the Goods; or
          3. arising out of any claim for patent, trademark or copyright infringement, or for any other reason being made against the Owner in connection with the use or operation of the Goods during the Rental Period.
    2. Renter Acknowledgements
      The Renter agrees that the Owner will have no responsibility or liability for any loss or damage to any property of the Renter. To the full extent permitted by law, the Renter releases and discharges the Owner from:
      5.2.1 all claims and demands on the Owner;
      5.2.2 any loss or damage whatsoever and whenever caused to the Renter or its agents or employees, whether by way of death of, or injury to, any person or of any nature or kind, any accident or damage to property, delay, financial loss or otherwise,
      arising directly or indirectly from or incidental to a breakdown of, or defect in, the Goods or any accident to or involving the Goods or their use, operation, repair, maintenance or storage (whether occasioned by the negligence of the Renter or otherwise) or which may otherwise be suffered or sustained as a consequence of the use of the Goods.
  6. Insurance
        1. The Owner has effected and will keep in place for the term of the Rental Period general insurance of the Goods for their full insurable value against:
            1. damage or destruction caused by accident;
            2. any insurable risk commonly insured against in regard to equipment of a similar nature to the Goods; and
            3. such other insurable risks as the Owner may reasonably stipulate.
        2. The Renter acknowledges that the general insurance of the Goods does not cover the events set out in Item 5 of Schedule “A” (AKA Hire Agreement).
        3. Casualty
            1. If:
              1. Total loss: in the event of a Casualty Occurrence or a Write-off, the Renter must pay to the Owner the difference between the replacement value of the Goods and the insurance pay-out, if any, for the Goods, less the Damage Excess previously paid;
              2. Partial loss: any part or parts of the Goods suffer a Casualty Occurrence or a Write-off, then the Renter must pay to the Owner the replacement value in regard to that part or those parts, less the Damage Excess previously paid.
                The Owner will determine the replacement value in regard to that part or those parts by reference to the proportion of the value, utility or other relevant measure of the Goods which has suffered the Casualty Occurrence or Write-off and will inform the Renter in writing of the basis of its calculation; or

                1. Damage: the Goods are damaged but are not a Write-off, then the Renter must pay to the Owner any expenses associated with restoring the Goods to their condition at the Commencement Date, less the Damage Excess previously paid.
            2. Any monies required to be paid under clauses 6(3)(a)(i) to 6(3)(a)(iii) must be paid by the Renter to the Owner on the first to occur of:
              1. the next business day after the Casualty Occurrence or Write-off;
              2. the last day of the Rental Period; and
              3. the date the relevant insurance moneys are received by the Owner,
                but not, in any event, later than the Termination Date of the Rental Period.
            3. Upon payment of any monies required pursuant to clauses 6(3)(a)(i) to 6(3)(a)(iii), this Agreement will determine in respect of the Goods or the part or parts of the Goods which suffered the Casualty Occurrence, Write-off or damage. This Agreement will continue in respect of the remainder of the Goods (if any) at a revised Hire Charge and with a revised Damage Excess both calculated by the Owner having regard to the proportion of the value, utility or other relevant measure of the Goods which have not suffered the Casualty Occurrence, Write-off or damage. The revised Hire Charge and Damage Excess will be advised by the Owner to the Renter in writing.
            4. Any determination of this Agreement under clause 6(4)(c) will not prejudice any right or remedy of the Owner in respect of any antecedent breach by the Renter under this Agreement.
        4. Recovery of insurance moneys
          While any moneys remain owing to the Owner under this Agreement, the Owner will be entitled to receive all moneys payable to the Owner by the insurer under any relevant insurance policy or by any other person in respect of damage to, or loss of, the Goods.
        5. Appropriation of insurance moneys
          The Owner is irrevocably authorised to appropriate any insurance or other moneys received by it in respect of a Casualty Occurrence to, or a Write-off of, the Goods towards any moneys then due and owing by the Renter to the Owner under this Agreement.

          1. Protection of insurance
            The Renter must not at any time do or suffer anything to be done to the Goods or use, modify or otherwise affect the Goods whereby the insurance on the Goods may be rendered void or voidable. In any case where the Owner approves in writing of any proposal of the Renter to increase the risk of damage to the Goods, the Renter must pay any and all additional premiums and any other amounts of whatever nature necessary or desirable to extend the insurance cover on the Goods.
  7. Repossession
    The Owner may immediately retake possession of the Goods if the Renter breaches any provision of this agreement.
  8. Exclusion of liability
    1. Non-excludable terms and conditions
      1. If the Goods are held to attract to this Agreement the operation of the provisions of the Australian Consumer Laws or any comparable legislation of any other State or Territory, certain conditions and warranties will be implied into this Agreement and rights and remedies conferred upon the Renter with respect to the Goods which cannot be excluded, restricted or modified by agreement (“the non-excludable terms”).
      2. If there are any non-excludable terms implied into this Agreement the provisions of cl 8(2) will not apply to them.
      3. The Renter acknowledges that with respect to any non-excludable terms, the Owner’s liability is, where permitted, limited to the supply (or the cost of supply) of equivalent replacement Goods or the repair (or the cost of repair) of the Goods for the Rental Period.
    2. Implied terms and conditions regarding Goods excluded
      Subject to cl 8(1), the Renter agrees that to the full extent permitted by law neither the Owner or any person purporting to act with the authority of the Owner has given any warranty or representation whatsoever in favour of the Renter:

      1. as to the condition or quality of the Goods including, without limitation, latent and other defects;
      2. as to the suitability or fitness for ordinary or any special use or purpose of the Goods; or
      3. as to the correspondence by the Goods to any description of them.
    3. Other implied terms and conditions excluded
      1. No further or other covenants or provisions, whether in respect of the Goods or otherwise will be deemed to be implied into this Agreement or will arise between the Renter and the Owner by way of collateral or other agreement by reason of any promise, representation, warranty or undertaking given or made by the Owner, or any person purporting to act with the authority of the Owner on or prior to the date of this Agreement. The existence of any such implication or collateral or other agreement is hereby negatived. This Agreement constitutes the whole agreement between the Renter and supersedes all prior agreement.
      2. Any covenant or provision which is deemed by statute to be incorporated into this Agreement but the operation of which may be lawfully excluded, restricted or modified by agreement between the Renter and the Owner or otherwise is hereby, to the maximum extent possible, so excluded, restricted or modified.
    4. Exclusion of liability for loss
      Subject to cl 8(1), in no event will the Owner be liable (whether before or after the expiry or termination of this Agreement) for any loss or damage which the Renter suffers arising from, or caused or contributed to by, the Owner’s negligence or the negligence of the Owner’s servants or agents. Nor will the Owner be liable for special, indirect or consequential loss or damage as a result of a breach by the Owner of this Agreement including, but not limited to, loss of profits or revenue, the costs arising from the loss of use of the Goods and the costs of any substitute Goods which the Renter acquires.
  9. Title to Goods
    The Renter acknowledges that the Owner retains title to the Goods and that the Renter has rights to possess the Goods as a mere bailee only. The Renter does not have any right to pledge the Owner’s credit in connection with the Goods and agrees not to do so. The Renter also agrees not to agree, attempt, offer or purport to sell, assign, sub-let, lend, pledge, mortgage let on hire or otherwise part with or attempt to part with the personal possession session of or otherwise deal with the Goods and not to conceal or alter the Goods or make any addition or alteration to, or repair of, the Goods.
  10. Cancellation & Termination
    1. Cancellation
      Subject to clause 10(2) below, the Renter may cancel an Order or any part of an Order by providing not less than 72 hours written notice prior to the Rental Commencement Date set out at Item 2 to the Owner, unless otherwise agreed by both parties in writing.
    2. If the Renter cancels an Order or part of an Order by giving less than 72 hours written notice, then the following provisions shall apply:
      1. The Renter agrees to indemnify the Owner against the Owner’s reasonable losses in connection with the cancellation of the Order, or part of the Order as the case may be.
      2. If the Order is cancelled by giving less than 72 hours written notice, then the Renter shall pay to the Owner 50% of the original total Hire Charges;
      3. If the Order is cancelled by giving less than 24 hours written notice, then the Renter shall pay to the Owner 100% of the original total Hire Charges.
    3. Termination
      The Owner may terminate this Agreement without notice, if any of the following events occur:

      1. The Renter breaches any of the Terms of this Agreement and fails to remedy same within two (2) days of being required to do so;
      2. The Renter suffers an event of insolvency, as defined by the Corporations Act and/or a Trustee in bankruptcy is appointed to the Renter and his/her/its assets;
        1. The Renter fails to pay the whole or any part of the Hire Charge or any other charges for the Goods supplied by the Owner.
    4. Termination will not affect the parties’ rights and obligations prior to the date of termination and, notwithstanding any such termination, the Renter will remain fully responsible and liable for all charges, expenses and costs incurred as at the date of termination.
    5. The Damage Excess
      1. Provided that the Goods are returned to the Owner on the Termination Date in the same condition as at the Commencement Date, subject to fair wear and tear, the Owner will refund to the Renter the Damage Excess;
      2. In the event the Goods suffered damage during the Rental Period, the Owner may refund to the Renter balance of the Damage Excess (if any), subject to cl 6(3)(iii).
  11. No waiver
    Time is of the essence of this agreement, except that no delay by the Owner in exercising any right or power will operate as a waiver of that right or power. Nor will any single or partial exercise of any right or power preclude any other or further exercise of that right or power.
  12. Governing law
    This agreement will be governed by the law of New South Wales.