STUDIO TROPICO TERMS AND CONDITIONS
Together with each Order and Invoice, these terms and conditions (this Agreement) govern the hire of any Equipment from us (Hire), whether placed in person or otherwise and including whether placed by you or by any agent, assistant or third party commissioning client acting or ostensibly acting on your behalf (Order).
1. PRICE AND QUOTES
1.1 The cost of a Hire is calculated by reference to the Hire Period and the Hire Price for the relevant Equipment. Any relevant Additional Fees and Risk Payments are additional.
1.2 Unless otherwise stated, all prices quoted or invoiced are inclusive of GST and are in Australian dollars.
1.3 Quotes are valid for fourteen (14) days only
2.1 In consideration of us hiring the Equipment to you, you agree to pay the Hire Price.
2.2 Unless you have made prior written arrangements with us for late return: (a) you agree to pay Additional Fees if Equipment is not returned to our possession on time (whether or not as a result of any delays in returning the Equipment by you or any third party); and (b) if you don’t return Equipment within 24 hours after that time, we may consider the Equipment stolen and notify the police. In each case, Additional Fees will continue to accrue until all Equipment is returned.
2.3 Unless you have made prior written arrangements with us, all Hire Charges must be paid for before Equipment is collected or delivered.
2.4 In relation to the studio, day rates for advertising, editorial and film are based on a 8 hour day. Studio hire is charged at a an hourly rate which begins upon entering the premises and terminates upon leaving the premises.
2.5 In relation to equipment, a day hire is 24 hour period from the time equipment leaves the premises (applies Monday- Friday). Weekend hire is the period between 5pm on a Friday afternoon and 9am Monday. A week is a seven day period, termination occurring at the same time and day of the second week.
3.1 Either on placing your order or on pick up of Equipment (either by you or on your behalf), you or your behalf must provide us with: (a) satisfactory photo identification (such as a current driver's licence or passport); and (b) an authorised credit card for use as security for any Additional Fees. No Equipment will be delivered (including into the possession of any agent or other third party) unless we have first received or shown such identification and authorisation.
4. RISK AND INSURANCE
3.2 The credit card is used by Us as security for any Additional Charges incurred during Equipment or Studio hire, and for any loss or damage to the Equipment or Studio. Any Additional Fees for which you are liable will be charged to this credit card unless prior arrangement is made.
3.3 You irrevocably authorise us to debit from your credit card any amounts due and outstanding (including any unpaid Additional Fees).
4.1 If we agree to accept a non-refundable Risk Payment as part of your Order: (a) that payment must be paid in full before the Hire Period commences; and (b) to the extent that our insurance covers loss or damage incurred while the Equipment is in your possession, your liability for loss or damage to the Equipment will be limited to the excess for which we are liable under our insurance policy (which, as at the date of drafting this Agreement, was $3,000).
4.2 You acknowledge that: (a) no cover from us for risk will be effective unless you have paid the Risk Payment in full before the Hire Period commences; and (b) our insurance policy includes a range of exclusions that may, from time to time include exclusions for: intentional damage or loss; gross negligence or wilful damage; water damage; damage caused by electrical currents; damage caused by domestic or wild animals; theft or unattended or unlocked vehicle, accommodation, business premises or other site; or not using the Equipment in accordance with our directions or the directions of the relevant manufacturer.
4.3 In cases where our insurance does not cover a claim relating to the Hire, or where we have not agreed to accept a non-refundable Risk Payment from you, you agree that you will be solely responsible for all relevant risks. 5. PROPERTY AND EQUIPMENT
5.1 Risk in the Equipment passes to you: (a) on you or someone on your behalf collecting the Equipment from us; or (b) (if we have agreed to deliver the Equipment to a nominated site (Site) and including if you are not at the Site at the time of delivery) on the Equipment leaving our premises for delivery to an address nominated by you.
5.2 Apart from reasonable fair wear and tear, you must return the Equipment to us in the same condition as it left our premises, and you must do so either before the Hire Period expires or immediately on termination of this Agreement (whichever occurs sooner).
5.3 Return of the equipment to Studio Tropico shall be subject to our Rental Technician's inspection for missing or damaged items. We will inform you within a reasonable time period if our Rental Technician's reveal missing or damaged items.
5.4 Risk in and possession of the Equipment does not pass to us until our equipment hire technicians have checked the returned Equipment and accept it.
5.5 Delivery is at the time and date the Equipment leaves our premises notwithstanding any provision for transportation of the Equipment by us to you.
6.1 You acknowledge that this Agreement may create a security interest in the Equipment for the purposes of the Personal Property Securities Act 2009 (Cth) (the PPSA).
6.2 You consent to us effecting a registration of our security interest in the Equipment on the PPSR and that we may exercise any remedies we may have under the PPSA. You agree to provide all assistance required by us to facilitate registration on the PPSR and/or to enable us to exercise our rights in connection with that security interest.
6.3 You agree not to bail or create any charge, encumbrance, lien or security over the Equipment and to notify us immediately in any change of name or address.
6.4 To the extent permissible by law (including the PPSA), you waive and contract out of your rights under the PPSA in relation to our enforcement of our security interest in the Equipment, and you may not, without our prior written consent, grant, register or create any security interest in the products, or attempt to do so.
7. USE OF THE EQUIPMENT AND YOUR OBLIGATIONS
7.1 You must use and maintain the Equipment in accordance with our instructions and the instructions of the relevant manufacturers.
7.2 You must as soon as possible (but in no case outside 12 hours from pick-up or delivery) check that the Equipment matches your Order and is functioning correctly. Unless you notify us of any discrepancy or failure within that 12-hour period in writing, you are deemed to have accepted the Order and the Equipment as accurate and operative. Any Equipment listed in the Order and not returned will be deemed lost, and will incur Additional Fees for its replacement.
7.3 It is your responsibility to ensure that: (a) the Equipment you order is suitable to your needs; (b) you and all relevant agents, contractors, employees and volunteers have sufficient knowledge to operate the Equipment correctly (we will endeavour to supply instructional literature when requested, however this cannot be guaranteed); (c) you comply and ensure that all your employees, agents, contractors and any volunteers comply with all relevant occupational health, safety and rehabilitation obligations and codes of practice relevant to the Equipment and its use; (d) all Equipment within your Order is supplied on pick-up or delivery and is functioning correctly following pick-up or delivery, including testing of all cameras; (e) you order adequate reserves of all consumables you may need; (f) you check with us as to which items (if any) in your Order are consumables; (g) you replace any consumables we supply before you return Equipment to us; (h) all spare bulbs and any failed original bulbs fitted to the Equipment are returned with all items of Equipment at the end of the Hire Period (or the cost of each bulb will be added as an Additional Fee); (i) you never connect flash packs to a petrol generator without using a Pro-gas regulator (unprotected packs are liable to explode and will incur substantial repair or replacement costs as an Additional Fee); and (j) Equipment is properly cleaned before being returned to us (or an Additional Fee will be charged).
7.4 You must not modify the Equipment without our prior written consent.
7.5 If Equipment breaks down or fails during the Hire Period, you must contact us as soon as possible and return it to us. Under no circumstances should you attempt to repair Equipment without our express prior written consent.
7.6 You may not: (a) take any of the Equipment out of Australia without our prior written consent; (b) use the Equipment on any abnormal or hazardous assignments; (c) transport or use the Equipment in helicopters or light aircraft without our prior written consent; or (d) use the Equipment where it could be, but is not limited to the following: affected by salt water, extremes of heat or cold, neglect due to lasers, pointing equipment directly at the sun causing sun damage, or atmospheric corrosion.
8. YOUR LIABILITY
8.1 You are responsible for the care, safety and maintenance of the Equipment and for any damage to or loss of the Equipment until it is returned to us. You will guard the Equipment against theft, damage or loss until its return to us. You must notify us immediately of any damage to or loss of the Equipment.
8.2 You forever indemnify us, including our officers, employees, agents and related companies (together, the Indemnified) against any and all liability, loss, claims, demands and/or expenses which any of the Indemnified may incur as a result of or in connect with your performance or non-performance of this Agreement (including, without limitation, any breach of this Agreement or any negligent act or omission by you or your officers, employees or agents and including any indirect or consequential loss such as loss of profit while Equipment is repaired).
8.3 You must provide any assistance and information and make any arrangements for us that are reasonably necessary for us to perform our obligations or to exercise our rights under this Agreement.
9. OUR OBLIGATIONS AND LIABILITY
9.1 To the maximum extent permitted by law and save for the express written terms in this Agreement, all other implied terms, conditions, warranties, statements, assurances and representations in relation to the Equipment or arising from this Agreement are expressly excluded.
9.2 If any of the exclusions or limitations set out in this clause are declared illegal or void or if there has been a breach of a term, condition, warranty, statement or assurance which cannot be excluded by this Agreement, then, to the maximum extent permitted by law, our entire liability and your exclusive remedy is limited to, at our discretion, the replacement of the Equipment or the supply of equivalent Equipment.
9.3 In no event will we (including our agents, employees or contractors) be liable for any: (a) direct loss; or (b) indirect or consequential loss (even if we are aware of the possibility of such loss or if such loss was otherwise foreseeable), including, but not limited to: additional expenditure, loss of profits, production, data, opportunity or goodwill; or business interruption, however caused and on any theory of liability, including without limitation, contract or tort (including negligence or otherwise) arising during and/or as a result of our performance or non-performance of this agreement.
9.4 To the maximum extent permitted by law, our maximum cumulative liability under this Agreement shall not exceed an amount greater than the income we have received from you in the three months preceding the date of this Agreement.
9.5 Neither party will incur any liability to the other on account of any loss or damage resulting from any delay or failure to perform all or any part of this Agreement (except an obligation to pay money) if such delay or failure is caused, in whole or in part, by a Force Majeure Event.
10.1 Subject to clause 11.2, you may cancel an Order or part of an Order by providing written notice to us.
10.2 If you cancel any Order, or part of an Order, you agree to indemnify us against our reasonable losses in connection with the cancellation. Our genuine pre-estimated loss is: (a) for cancellations between 36 and 24 hours prior to the Hire Period – 50% of the Hire Price; and (b) for cancellations within less than 24 hours prior to the Hire Period: 100% of the Hire Price.
11. TERM AND TERMINATION
11.1 We may terminate your Hire by notice in writing if you commit a breach of this Agreement and fail to remedy the breach within 72 hours of being required to do so by written notice.
11.2 This Agreement automatically terminates if you: (a) become insolvent or bankrupt or commit an act of bankruptcy or make an assignment for the benefit of a creditor; (b) enter into or resolve to enter into any agreement, composition or compromise with, or assignment for the benefit of, your creditors or any class of them (or threaten to do so) otherwise than for the purposes of an amalgamation or reconstruction; (c) go into "administration" or appoint or have a "liquidator" appointed as those terms are defined in the Corporations Act 2001; or (d) cease to carry on your day-to-day business activities.
11.3 Termination: (a) will not affect the parties’ rights and obligations prior to the date of termination and, notwithstanding any such termination, each party will remain fully responsible and liable for all charges, expenses and costs incurred or earned as at the date of termination; or (b) will not affect any clauses of this Agreement which by their nature are designed to survive or operate in the event of the termination; and (c) will not prejudice the rights of either party in respect of any breach prior to termination.
11.4 We may without previous notice to you and without prejudice to any of our other rights (and including by our servants and agents) retake and resume possession of the Equipment and may enter your premises or any other place where the Equipment may be located if: (a) clause 11.2 applies; (b) you fail to pay the whole or any part of the Hire Price for the Hire or any other charges for the Equipment when due; (c) you part with possession of the Equipment; or (d) this Agreement is otherwise terminated.
11.5 On termination (for whatever cause), you must promptly return all Equipment to us or pay to us any costs we incur following termination to recover the Equipment.
12.1 Additional Fees means any additional charges incurred by us or you in relation to the Equipment or the Hire, including but not limited to: (a) any fee for late return of Equipment (to be calculated daily for any day or part day that the Equipment is late, by reference to the applicable rate for day hire, plus an administrative fee of $50.00); (b) any consumables supplied with the Equipment and used by you but not replaced before you return the Equipment to us (including modelling lamps, batteries, globes); (c) the Hire Fee for any additional Equipment ordered by you on your behalf after your Order is placed; (d) any freight or delivery costs incurred by us at your request; (e) any losses arising from registration of any security interest in the Equipment and/or any action taken by us to protect our security interest in the Equipment; any costs incurred under clause 11.5; and (f) any costs incurred by us (including for staff time) for cleaning, repair or replacement of Equipment.
12.2 Equipment means all equipment and accessories ordered by you, and including any batteries, battery chargers, memory cards, lens hoods, lens caps, filters, cables, bags, cleaning equipment, manuals, remote controls, peripherals and software.
12.3 Force Majeure Event means any act or event beyond the reasonable control of either party, including without limitation strike, lock-out or other industrial action by third parties; blackout; civil commotion; riot; invasion; terrorist attack or threat of terrorist attack; war or threat or preparation for war; fire; explosion; act of God (such as a storm, flood, earthquake, subsidence, epidemic or other natural disaster); local, state, federal, national or international law, order or regulation; failure of public or private telecommunications networks; or interference with the use of railways, shipping, aircraft, motor transport or other means of public or private transport.
12.4 Risk Payment means 15% of the Hire Price (only available if requested by you and accepted by us; not available for Equipment taken outside Australia).
12.5 Hire Period means, unless this Agreement is terminated early, the period stated in the Order or from the day you take possession of the Equipment until the day the Equipment is returned (whichever is longer) and includes transit time. For clarity: (a) day hire from Monday to Thursday is the 24 hour period from the time the Equipment is booked for pick-up; (b) day hire for Friday is from the time the Equipment is booked for pick-up until no later than 5 pm that day; (c) weekend hire is the period between 3.00 pm on a Friday afternoon and 9.00 am on the following Monday morning; and (d) weekly hire is a seven-day period, calculated from the day and time the Equipment is booked for pick-up.
12.6 Hire Price means the price estimated in the Order, together with any Additional Fees incurred.
12.7 PPSR means the Personal Property Security Register.
12.8 Us and we, means STUDIO TROPICO ABN 24 615 093 067, including its successors and assigns.
12.9 You means the person named as the client in the Order, whether the Order is placed by you or on your behalf.
13.1 If any provision of this Agreement is held to be invalid or unenforceable for any reason, it will be severed and will not affect the remaining provisions of this Agreement.
13.2 You must not assign your rights or obligations under this Agreement without our prior written consent. We may assign our rights and novate our obligations under this Agreement to any other person without your consent.
13.3 The waiver or failure of either party to exercise in any respect any right provided for in this Agreement will not be deemed a waiver of any further right under this Agreement.
13.4 Our records of acceptance of the Equipment by you or on your behalf is evidence of that Equipment being part of an Order.
13.5 You irrevocably appoint us your attorney for the purpose of doing all acts and things which under this Agreement are to be done by you or which we are authorised or empowered to do so as to give effect to this Agreement.
13.6 This Agreement is governed by and must be interpreted in accordance with the laws of New South Wales, Australia and the parties submit to the exclusive jurisdiction of the courts of that state.
13.7 This Agreement constitutes the entire agreement between the parties in relation to the Equipment subject to the Hire and may not be varied except in writing and signed by authorised personnel of both parties.