LEMAC RENTAL TERMS AND CONDITIONS
INTERPRETATION
In these terms and conditions unless the context otherwise requires:
(i) “The Company” means Lemac Films (Australia) Pty Ltd A.C.N. 005 455
685 A.B.N. 32 005 455 685 which expression shall include any or all
companies related or any subsidiary successors and assigns of Lemac Films
(Australia) Pty Ltd.
(ii) “The Customer” means the person (including his successors, representatives
and permitted assign) hiring equipment from the Company and where
there is more than one Customer the covenants on their part contained herein
shall be deemed joint and several covenants.
(iii) “Equipment” means all or any film or digital equipment or any other
goods of any kind whatsoever hired by the Customer from the Company.
GENERAL
1. These terms and conditions are deemed to be incorporated into all
contracts for the supply of Equipment to the Customer and supersede all
terms and conditions previously issued by the Company. The Company is
only prepared to hire Equipment upon these terms and conditions and no
contract for the hire of Equipment shall exist between the Company and the
Customer except upon these terms and conditions unless their exclusion or
modifications are agreed to in writing by the Company. Any order placed by
the Customer is deemed to be an order incorporating these terms and
conditions notwithstanding any inconsistencies in the Customer’s order.
DELIVERY
2. Unless the Customer arranges the delivery and return of Equipment by
the Company, the Customer shall be responsible for the collection and return
of Equipment. Where at the Customer’s request, Equipment is delivered or
collected by the Company, the Company shall have an absolute discretion as
to the mode of delivery and the delivery and collection will be at the
Customer’s risk and expense.
Equipment must be collected from and returned to the Company’s premises.
HIRE CHARGES
3. (1) Hire charges for equipment are as set out in the Rental Catalogue. The
Company reserves the right to alter its hire charges without notice.
A minimum charge for invoiced services applies.
(2) Hire charges for Equipment are calculated from the time the Equipment
leaves the Company’s premises until the end of the period of hire or when the
Equipment is returned to the Company’s premises, whichever is the later. In
the event that the Equipment is not returned by 9.00am on the working day
following the last day of the hiring period, the Customer shall be liable for
additional fees at the full daily rate in respect or each day or part thereof until
the Equipment is returned.
(3) In addition to normal hire charges, the Company shall be entitled to
charge an opening fee for services outside of normal business hours.
(4) The Customer will pay to or reimburse the Company (except where such
payment or reimbursement is expressly prohibited by statue) all delivery
costs and other government duties, taxes and expenses which
the Company may be liable to pay from time to time in connection with the
hire of the Equipment to the Customer.
PAYMENT
4. (1) Hiring fees must be paid prior to the hiring of Equipment or in the case
of Account Customers within 30 days from the date of the Company’s
invoice unless otherwise expressly agreed to in writing by the Company.
Credit Accounts will only be opened where warranted by the Customer’s
volume of business and where the Customer can establish its credit
worthiness to the satisfaction of the Company. An approved Renter’s
Register form is required prior to hiring, even on a COD basis. All first time
rentals are on a COD basis, unless they are to be shipped. If equipment is to
be shipped, first orders are to be pre-paid. A safety deposit is required on all
COD orders. The deposit will be refunded upon return of the order barring
any damage, missing equipment or late changes.
(2) Notwithstanding Clause 4. (1), the Company may at any time of any
order, delivery or collection of Equipment demand payment in cash upon
such order, delivery or collection.
(3) The Company reserves the right to charge interest on overdue accounts
without prior notice to the Customer at the rate of 2% per month or at such
other rate as may be fixed from time to time by the Company such interest
to be computed from the date a payment becomes overdue until payment of
such monies is received in full. A certificate signed by any Director, Manager
or Secretary of the Company shall be deemed conclusive evidence of such
rate of interest.
(4) The Company reserves the right to set a minimum invoice value from time
to time at its discretion and reserves the right to refuse to hire Equipment to
the Customer in the event that the Customer fails to comply with the
Company’s terms of payment.
IMPLIED TERMS
5. All warranties and conditions expressed or implied by statue, common
law, equity, trade, customer usage or otherwise howsoever are to the extent
permitted by law expressly excluded from this contract.
6. The Customer acknowledges that neither the Company or any person
purporting to act on its behalf has made any representation or given any
promise or undertaking which is not expressly set out in the contract whether
as to the fitness of the Equipment for any particular purpose or any other
matter. The Customer acknowledges that without relying upon the skill or
judgment of the Company or any person purporting to act on its behalf, it
has determined that Equipment conforming to the contract description will be
fit for its purposes. The provisions of this Clause shall not apply insofar as
their application is prevented by the Trade Practices Act 1974 or any other
State or Territory laws.
COMPANY LIMITATION OF LIABILITY
7. (1) Save as expressly provided for in this contract the Company shall not
be liable to the Customer or the Customer’s servants or agent for any direct,
indirect, incidental or consequential loss, injury or damages of any nature
howsoever caused (whether based on tort contract or otherwise) including
but not limited to loss of profits, loss of production, loss of sales opportunity
or business reputation, direct or indirect labour costs and overhead expenses
and damage to equipment or property or any other claim whatsoever arising
directly or indirectly or in any way attributable to the performance of or failure
to perform this contract whether resulting from the negligence of the
Company, its servants, agents or otherwise. Without limiting the generality of
the foregoing all deterioration of and/or damage to filters, lens elements and
bubbles of any description while in the Customers possession is the responsibility
of the Customer. The provisions of this Clause shall not apply insofar
as their applications is prevented by the Trade Practices Act 1974 or any
other State or Territory laws.
(2) The Customer agrees to indemnify and to keep indemnified the Company
and the Company’s servants and agents against any claims actions, suits
and demands brought by third parties arising out of the use of the Customer
of the Equipment or otherwise arising out of or in connection with this
contract.
(3) Notwithstanding anything herein contained and subject to the qualifications
contained in Section 68A of the Trade Practices Act 1974 and Section
110 of the Goods (Sales and Leases) Act (Vic) 1981 if the Customer is a
“consumer” as defined in the Trade Practices Act or the transaction being
performed under this contract is a “lease” as defined in the Goods (Sales and
Leases) Act and the Equipment being supplied herein is other than of a kind
ordinarily acquired for personal domestic or household use or consumption
the liability of the Company for a breach of a condition or warranty implied
by Division 2 Part V of the Trade Practices Act or Division 3 of the Goods
(Sales and Leases) Act being a condition or warranty implied by Section 69
of the Trade Practices Act or Section 103 of the Goods (Sales and Leases)
Act is limited at the Company’s option to the replacement of the Equipment
or the supply of equivalent Equipment or the repair of the Equipment.
PROPERTY. RISK AND INSURANCE
8. (1) The Equipment shall be at the Customer’s risk from the time the
Equipment leaves the Company’s premises or from the commencement of testing
within the Company’s premises, whichever is the earlier until the time it is returned
and accepted by the Company. Acceptance does not release the Customer from
the responsibility for the loss or damage of hired Equipment.
(2) Unless otherwise agreed to by the Company in writing, the Customer is
required to effect suitable insurance in respect of the Equipment and must
provide documentary evidence of such insurance prior to the hiring of any
Equipment by the Customer. Such insurance must be written by a reputable insurance
company of acceptable financial size and rating to the Company.
(3) Lemac Films (Australia) Pty Ltd should be included and named as joint
insured under all policies of insurance, particularly “negative” insurance
effected by the Customer.
( 4) In the event the Equipment is lost or damaged (fair wear and tear excepted) while
at the risk of the Customer, the Customer shall be liable to compensate the Company
for the greater of the full replacement cost (without deduction for depreciation) or
the insurance value prescribed on the Company’s schedule of insurance values
(which is subject to update from time to time)
or in the case of damage the Company’s full cost of repairing the Equipment
as the case may be.
(5) When equipment is lost or damaged the Customer is responsible for hire
charges up to the time the Equipment is repaired of replaced for a maximum
of 13 weeks. Customers are to make sure adequate insurance cover is
obtained to cover this contingency and must include an evidence of the extension
on the insurance policy.
( 6) The Customer and the employees or servants of the Customer are the only
persons permitted to use the Equipment and without limiting the generality of the
foregoing, the Customer shall not lend or rehire the Equipment to any other person.
CANCELLATION CHARGES
9. Except where otherwise agreed by the Company, cancellation of booked
or reserved Equipment within forty-eight hours of the time specified for
collection will incur a cancellation charge equal to 50% of the hiring fee from
the period originally booked or reserved.
CUSTOMER LIMITATION OF LIABILITY
10. If, at the request of the Customer, the Company agrees in writing to limit
any claim for loss or damage to the Equipment, the Customer hereby agrees
and accepts the following charges, terms and conditions. The Customer
acknowledges that the Company has not in any way represented itself to the
Customer as a person carrying on the business of insurance.
A. CHARGES
(1) Where the Customer is an account customer, the Customer shall pay an
additional charge equal to 10% of the total list Equipment rental charge
for Equipment rented for use within Australia. Overseas usage charge is
on application.
(2) Where the Customer is a COD customer, the Customer shall pay to the
Company an additional charge equal to 20% of the total list Equipment rental
charge for Equipment rented for use within Australia. Overseas usage charge
on application.
(3) The Customer acknowledges that in the event of loss or damage to the
Equipment the Company will limit the claim to two thousand, two hundred
dollars inc. GST ($2,200.00 inc. GST) in relation to each and every claim.
B. TERMS
The Company will limit any claim for loss or damage to Equipment within or
outside Australia as specifically agreed to in writing, but such limitation
EXCLUDES loss or damage to the equipment in the following circumstances:
(1) Loss or damage caused by misuse, mechanical or electrical
derangement, exposure to salt water, exposure to water, exposure to dust or
sand, or confiscation by Customs or other authorities.
(2) Loss or damage directly or indirectly caused by or arising from war,
invasion, act of foreign enemy, hostilities (whether war be declared or not),
civil war, rebellion, revolution, insurrection or military or usurped power.
(3) Loss or destruction of or damage to any Equipment whatsoever or any
loss or expense whatsoever resulting or arising from or any consequential
loss or legal liability of whatsoever nature directly or indirectly caused or
contributed to, by or arising from:
(i) ionising radiations or contamination by radioactivity from any irradiated
nuclear fuel or from any nuclear waste from combustion of fuel
(ii) the radioactive toxic explosive or other hazardous properties of any
explosive nuclear assembly or nuclear component thereof
(4) Loss or damage resulting from leaving Equipment in vehicles whether
locked or unlocked, but unattended.
(5) Loss or damage to two way radios.
(6) Loss or damage to electric globes.
C. CONDITIONS
(1)All ordinary and reasonable precautions for the safety of the Equipment
must be taken.
(2) In the event of loss or damage the Customer shall:
(i) forthwith notify the Company and the Police where necessary, and take
any practicable steps towards the discovery and recovery;
(ii) as soon as practicable give full written report of the circumstances of the
loss or damage to the Company;
(iii) and at the same time furnish to the Company any particular or evidence
as may be reasonably be required by the Company or its insurer including
attending at a lawyer’s office and at Court to give evidence.
(3) The due observance and fulfilment of the Terms and Conditions and
Endorsements as stated above in so far as they relate to anything to be done
or complied with the Customer and the truth of the statements and answers
made by the Customer at the time of instigating the loss and damage waiver
are conditions precedent to the Company limiting the liability of the Customer
for any claims for loss or damage of the Equipment
POWER OF ENTRY
11. (1) The Company may enter any premises where the Company
reasonably believes the goods are located for the purpose of inspecting,
testing or taking possession of the goods in accordance within this
Agreement and the Customer hereby indemnifies the Company against any
liability the Company may incur in the exercise of its rights under this clause.
(2) The Customer undertakes to insert in any Agreement giving any other
person the right to use or the use of the equipment a clause that permits the
Company to enter that person’s premises for the purpose of inspecting or
testing or taking possession of the goods in accordance with this Agreement.
TERMINATION BY COMPANY
12. (1) The Company may, not withstanding the specified period of hire and
not withstanding any waiver of some previous default, forthwith terminate
this contract and repossess the Equipment in any of the following events:
(i) if the Customer shall fail to pay any hiring charges within two (2) days of
the due dates;
(ii) if the Customer shall do or permit any act or thing whereby the
Company’s rights in the Equipment may be prejudiced;
(iii) if the Customer commits any breach of contract;
(iv) if the Customer should become or be made insolvent or bankrupt or
make any agreement or composition with its creditors or in case of the
Customer being a limited company, should an order be make or a resolution
passed for the winding up of such company.
(2) If such termination occurs the Customer will pay the Company all costs
and charges already incurred under this contract.
OTHER CONDITIONS
13. (1) The minimum hiring period for Equipment hire for use interstate is two
(2) days and overseas is one week .
( 2) Equipment must not be used on any abnormal or hazardous assignment or
taken from the ground other than on a regular schedule flight by a recognised
airline other than with the prior written consent of the Company. The Customer
is required to keep hired Equipment in safe custody and must ensure that it is
used in a skillful and proper manner by persons having the appropriate qualifications
and experience. The Customer must take all reasonable precautions to
ensure that the equipment is not damaged or destroyed.
WAIVER
14. Failure of the Company to insist upon strict performance by the
Customer of any terms or conditions contained herein shall not be taken to
be a waiver thereof or of any right of the Company in relation thereto and in
any event shall not be taken to be a waiver of the same terms and conditions
on any subsequent occasion
GOVERNING LAW AND JURISDICTION
15. These terms and conditions and the contract governed thereby shall be
governed by and construed in accordance with the laws from time to time,
of the State of Victoria which is where the head office of the Company is
located and any proceedings shall be brought and heard in Melbourne.
GENERAL INSTRUCTIONS TO CUSTOMERS
1. Hire charges are levied on a daily or weekly basis. Unless other
arrangements are made with the Company, for the purposes of the
calculation of hire rates, a day is deemed to commence and conclude at
midnight. The weekly rate is equal in most cases to three times the daily rate
but for some items is two or four times the daily rate. A week consists of any
consecutive seven day period.
2. Lemac Films (Australia) Pty Ltd should be included and named as joint
insured under all policies of insurance, particularly “negative” insurances
effected by the Customer. It is recommended that the Customer makes in
ample time, its own checks of the completeness and correct functioning of
Equipment including film testing of all cameras and takes adequate reserves
of all essential times.
3. Filters including diffusers, graduateds, fogs, neutral densities and polascreens,
electric bulbs, etc, are subject to Clause 7 of the Terms and
Conditions, only supplied on the understanding that all deterioration and/or
damage while in the Customer’s possession is the responsibility of the
Customer. Each such item is examined before despatch from the Company’s
premises to ensure that it is in good condition and, subject to Clause 7 of the
Terms and Conditions, if any deterioration subsequently occurs (including
during transit by air or other means) the Customer will be charged with its
replacement cost. Filters etc, as provided in standard sets cannot be supplied
separately or in part sets.
4. All items are serviced at termination of each hire period but for extended
hire, service and general maintenance may be arranged through our service
department.
5. Customers using the Company’s testing/production areas are to be
advised to insure all personnel and equipment used in those areas for the
production as they would for a normal studio/location shoot.
6. Equipment damaged by salt water is, unless treated immediately, in most
cases subject to re-occurrence of salt water residue. This makes certain
electronic items and components unusable. Special mention of production
shooting in the vicinity of salt water should be made to the Company when
ordering Equipment and to your insurance company.
7. Customers are advised that any electrical equipment NOT belonging to the Company
cannot be used or attached to the Equipment without the prior consent and testing by
the Company and such testing will be subject to an additional charge. Failure to
do this will render the Customer liable for all loss, including time, incurred as a result
of this usage.
8. Customers using digital equipment need to especially note that the management and
back up of their data is entirely the Customer’s responsibility. Customer’s data should
not be left on P2 cards/hard drives on returning equipment. If data is left it will be erased
as a part of our service and preparation for the next customer. The Company will not be
held responsible for any loss of data or possible privacy issues relating to left data.
9. To avoid inconvenience to other hirers, any extension of hire must be
arranged prior to termination of the original hire period.
10. Any shortage of, damage to or malfunctioning of Equipment should be
reported to the Company as soon as is possible or upon the return of Equipment
whichever is the earlier.
|
