Terms and Conditions

These Terms and Conditions set out the terms on which MPH Australia Pty Ltd ACN 116 879 513 (MPH) provides lighting and production equipment and associated equipment and services for hire by the Customer whose details are set out in the Purchase Order. 

1

Definitions and interpretation

1.1

Definitions

In these Terms and Conditions, unless the context otherwise requires:

Agreement has the meaning given by clause 2.1.

Approval URL means the URL link provided for in the Quotation and/or the email sent to the Customer from MPH attaching the Quotation sent from the “Current RMS” cloud software (or such other software as may replace this from time to time).

Business Day means a day (not being a Saturday, Sunday or public holiday) on which banks are open for general banking business in [Melbourne].

Collection has the meaning ascribed to it in clause 8.2.

Confidential Information means all information which is not otherwise publicly available (in both cases either in its entirety or in part) including commercial, financial, marketing or technical information, know-how, trade secrets or business methods of MPH.

Credit Account Application means the credit application pursuant to which MPH has agreed to supply the Equipment and/or Services on credit to the Customer.

Customer means the party engaging MPH to provide the Services under a Purchase Order or Contract.

Day Rate means the rate per day for the hire of the Equipment or for the provision of Services as set out in the Quotation.

Default Rate means the prevailing rate under section 2 of the Penalty Interest Rates Act 1983 (Vic).

Delivery has the meaning ascribed to it in clause 8.2.

Early Payment Discount means a discount on the total Fees due to MPH by the Customer, as set out in the relevant Quotation. If no Early Payment Discount is set out in the Quotation, none will apply.

End Date means the date and time upon which the provision of the Services concludes, as set out in the Quotation (which, for the avoidance of doubt, is on or following the occurrence of the Event).

Equipment means the equipment hired by the Customer from MPH as set out in a Purchase Order, Quotation and/or a Schedule.

Equipment Allocation Amount is the amount required to cover the allocation of the Equipment hired under a Purchase Order to the Customer, thereby removing that Equipment from MPH’s inventory and making it unable to be used by any other customer.

Event means any, festival, concert, show, gig, or other event at which the Equipment is (or is intended or planned to be) set-up, operated, used, dismantled and collected.

Fees has the meaning ascribed to it in clause 4.3.

Force Majeure Event means any act, event, non-happening, omission or accident beyond the party’s reasonable control, and includes in particular (without limitation) natural disasters, epidemic, pandemic or other health emergency, the acts, decrees, legislation, regulations or restrictions of any government.

GST has the meaning given to that term in the GST Law or any amending legislation.

GST Law has the meaning given to that term in the A New Tax System (Goods and Services Tax) Act 1999 (Cth).

Hire Period means the period commencing on the Start Date and finishing on the End Date.

Initial Invoice has the meaning given by clause 4.1(b).

Intellectual Property means all copyright, trademarks, and other intellectual property rights held by MPH over its designs and other creative works including but not limited to printed materials, designs and any graphics/artwork used in connection with the provision of the Equipment and the Services and includes the Confidential Information.

PPSA means the Personal Property Securities Act 2009 (Cth).

PPSR means the Personal Property Securities Register established pursuant to the PPSA.

Privacy Laws means the Privacy Act 1988 (Cth), the Australian Privacy Principles, the National Privacy Principles and the Information Privacy Principles and any other laws or regulations pertaining to privacy and/or the use and disclosure of personal information as amended from time to time.

Purchase Order means any form of order or acknowledgement (whether verbally or in writing) containing descriptions and specifications for the provision of the Services.

Quotation means the last written cost estimate provided by MPH to the Customer for the provision of the Services, which is able to be accepted by the Customer through the Approval URL.

Return means the handing over of Equipment by the Customer or its representative to MPH or its representative.

Security Interest means any third party interest or encumbrance of any nature whatsoever, including (without limitation) a mortgage, charge, bank guarantee, director’s guarantee, bill of sale, a security interest as defined in section 12 of the PPSA, or a right to set-off or right to withhold payment of a deposit or other money.

Services means the services specified in any Quotation issued to the Customer by MPH, including but not limited to labour for production planning, management, design, Equipment hire, supply, use and Delivery, set- up, operation, pack-down and collection.

Start Date means the date and time upon which the provision of the Services preparation starts, as set out in the Quotation (which, for the avoidance of doubt, is prior to the occurrence of the Event).

Terms and Conditions means the terms and conditions as set out in this document (and any written variations to this document) and attached to, or showing as a hyperlink in, the Quotation.

Venue means the venue or location specified by the Customer at which the Services will be provided.

2

Agreement

2.1

These Terms and Conditions, any agreed Purchase Order, the Quotation, the Credit Account Application, and any other document incorporated by reference in the above documents are deemed to form the entire agreement between MPH and the Customer in respect of the supply of Services (Agreement).

2.2

The Customer agrees to receive the Services, and MPH agrees to supply the Services in accordance with the Agreement.

2.3

Unless otherwise expressly agreed by the parties, the Agreement will become binding between MPH and the Customer on the Customer accepting the Quotation in accordance with clause 3.5.

2.4

In the event of any agreed variation to the Agreement:

  1. MPH may increase or decrease the Fees to account for such variation as applicable; and
  2. any variation made after the Hire Period has commenced will be charged separately and must be paid for in full before the Equipment will be delivered to the Customer including for Credit Account clients.

3

Ordering

3.1

The Customer may place a Purchase Order (verbally or in writing) with MPH for the provision of the supply of the Services. The Customer warrants that all information and materials provided in the Purchase Order (including any design briefs, lots, plans and specifications) is materially accurate, true and not misleading, and acknowledges MPH relies on such information in forming a Quotation.

3.2

MPH may in its absolute discretion accept or refuse to accept any Purchase Order. 

3.3

Based on the information provided by the Customer in the Purchase Order, MPH may provide the Customer with a Quotation. The provision of a Quotation to the Customer will constitute an offer. MPH may withdraw or alter the Quotation without notice at any time.

3.4

Subject to clause 3.3 and the availability of the Equipment, and unless otherwise stated in writing (including in the Quotation itself), a Quotation will be valid for a period of up to 14 days from the date of its issue.

3.4

Subject to clause 3.3 and the availability of the Equipment, and unless otherwise stated in writing (including in the Quotation itself), a Quotation will be valid for a period of up to 14 days from the date of its issue.

3.5

If the Customer accepts the Quotation, including by clicking on or otherwise accessing the Approval URL, clicking any “OK” button set out beneath the Approval URL, or otherwise indicating acceptance of the Quotation in writing or verbally, the Customer is taken to have accepted the Quotation and these Terms and Conditions become binding.

3.6

[On or following acceptance of the Quotation, the Customer will receive a written communication from MPH of acceptance of the Quotation.]

4

Payment and Bonds

4.1

If MPH accepts a Purchase Order 30 or more days prior to the Start Date, the Customer must pay:

  1. an Equipment Allocation Amount, equal to 25% of the total Fees to MPH within 5 days of the approval of the Purchase Order by MPH; and
  2. 75% of the Fees within 7 days of a validly issued tax invoice by MPH (which shall be issued on or after the Start Date) (Initial Invoice).

4.2

If MPH accepts a Purchase Order within 30 days of the Start Date, the Customer must pay an Equipment Allocation Amount, equal to 100% of the total Fees to MPH within 5 days after approval of the Purchase Order by MPH.

4.3

If the Customer pays the Fees within the timeframes stated in clauses 4.1 and 4.2 (as applicable), they will be entitled to receive an Early Payment Discount. If the Customer fails to pay within any of the times required by clauses 4.1 or 4.2 (as applicable), the Customer will not be entitled to an Early Payment Discount.

4.4

Subject to this clause 4, the price for the Equipment and/or the Services will be the price specified in the Quotation provided by MPH to the Customer, unless otherwise specified (Fees)

4.5

The Customer must pay all amounts due to MPH (whether under this Agreement or otherwise):

  1. without set-off, deductions, counterclaims, or conditions; and
  2. in accordance with the payment method set out in the Initial Invoice.

4.6

The Customer agrees that MPH may further invoice the Customer for subsequent charges for loss, damage, repairs, any extension to the Hire Period, modifications to the Purchase Order (including but not limited to any requests for extra Equipment in accordance with clause 7 of these Terms and Conditions) or other expenses.

4.7

If the Customer wishes to purchase the Services on credit, the Customer must apply for credit by completing the Credit Account Application, which MPH may, in its sole discretion, refuse.

4.8

Where MPH has agreed to grant credit facilities to the Customer pursuant to the Credit Account Application, the price for the Services is due and payable in accordance with the terms and conditions of MPH in respect to the provision of the credit facilities as set out in the Credit Account Application or as otherwise notified by MPH to the Customer.

4.9

MPH may, at its sole discretion amend or revoke the payment terms provided for in the Quotation immediately upon giving you written notice.

5

Late payments

5.1

Any amounts not paid by the Customer within 30 days of when they fall due under the Initial Invoice (Unpaid Amounts) will accrue interest at the Default Rate payable monthly in arrears until paid in full. Any accrued interest will every month be added to the Unpaid Amounts by the Customer and will of itself accrue interest under this clause 5.1.

5.2

The Customer acknowledges and accepts that any Unpaid Amounts (including any accrued interest) may be referred to a debt collection agency by MPH.

5.3

The Customer is liable and indemnifies MPH for all reasonable costs and expenses (including any debt collection fees and legal costs) incurred by MPH in collecting the Unpaid Amounts and any accrued interest on the Unpaid Amounts.

5.4

For the avoidance of doubt, the Customer’s obligation to pay an amount owing under this Agreement applies notwithstanding any delay in the supply of the Services (including but not limited to the Delivery of the Equipment).

5.5

Time is of the essence in respect of all amounts payable pursuant to these Agreement

6

Cancellations and Modifications

6.1

If the Customer modifies or cancels a Purchase Order prior to the Start Date or otherwise reschedules the Hire Period for any reason, including by reason of a Force Majeure Event, the Customer acknowledges this will cause a reasonably foreseeable loss to MPH, and the Customer agrees that it:

  1. will be unable to recover any amounts already paid to MPH. For the avoidance of doubt, this clause will apply whether or not MPH has incurred any expenditure arising out of or in connection with the Services; and
  2. may incur any reasonable costs or expenses incurred by MPH in the performance of this Agreement up to the date of the modification or cancellation, including but not limited to all manufacturing and supplier costs (Cancellation Fee). Any Cancellation Fee will be invoiced by MPH and must be paid within the due date as specified in the invoice.

6.2

For orders cancelled by the Customer less than seven day prior to the commencement of the Hire Period, the balance of the fee quoted in the Quotation will be due in full.

6.3

The entitlement to payment described in clause 6.1 is in addition to and without prejudice to MPH’s other rights under this Agreement or at law.

7

Extras

7.1

If the Customer modifies a Purchaser Order during the Hire Period by, for example, requesting additional Equipment for the Event, the Customer agrees that it may incur any reasonable costs or expenses by MPH in the performance of this Agreement up to the date of the modification, including but not limited to additional labour costs. Any such fee will be invoiced by MPH and must be paid within the due date as specified in the invoice (in addition to the Initial Invoice).

7.2

MPH will make all reasonable attempts to accommodate any modification of a Purchase Order, however, is under no obligation to modify the supply of the Services. This is at the sole discretion of MPH.

8

Hire, Delivery / Collection and Return

8.1

The provision of the Services (including but not limited to any hire of the Equipment) will commence from the Start Date and continue for the Hire Period. Any extension of the Hire Period must be agreed in writing and may come at an additional cost.

8.2

No later than 7 days before the Start Date, the parties must agree that the Equipment will be:

  1. collected by the Customer (or its representative) at the location specified by MPH (Collection), or delivered by MPH (or its representative) to the Customer (or its representative) at the location specified by the Customer (Delivery), on the Start Date and within the times specified by the Customer; and
  2. collected by MPH (or its representative) at the location specified by MPH or delivered by the Customer (or its representative) to MPH (or its representative) at the location specified by MPH, on the End Date and within the times specified by the Customer.

8.3

MPH may nominate a representative, such as an employee or a freight company, to take the Delivery. If the Customer or their nominated representative is not available to accept Delivery, then MPH may affect Delivery by handing the Equipment over to another person to whom MPH reasonably deems capable of accepting Delivery on behalf of the Customer.

8.4

MPH may affect Delivery without notification to the Customer.

8.5

Any failure of MPH to Deliver or pick-up the Equipment within the specified time does not entitle the Customer to a reduction in the Fees.

8.6

The Customer must notify MPH of any changes to the Delivery and/or return address or time (as applicable) at least 48 hours before the Start Date.

8.7

The Customer agrees to take full responsibility and risk for the Equipment during the Hire Period.

8.8

MPH will not be liable for any loss or damage that occurs in connection with the Delivery of the Equipment by a third party.

8.9

The Equipment will be returned to MPH or collected by MPH or its representative (as applicable) on the End Date and as specified in accordance with clause 8.2(b)above.

8.10

The Customer must make the Equipment available for Return to, or Collection by, MPH (as applicable) at the end of the Hire Period in the same condition as it was at the Start Date (including but not limited to ensuring that the Venue is available to enable MPH or its representative to dismantle and remove any Equipment), subject to reasonable wear and tear and usage of any consumable items, and in a complete, clean and dry state, otherwise additional Fees will apply.

8.11

MPH’s records as to condition, description, and quantity of the Equipment prior to Delivery and on Return will be final.

9

Responsibility of the Customer

9.1

During the Hire Period, the Customer is responsible for:

  1. safekeeping and security of the Equipment;
  2. ensuring that MPH or its representatives have access to the Equipment, or can gain to the Venue, at all reasonable times;
  3. ensuring that the Equipment, once installed, remains in place for the Venue for the entirety of the Hire Period and that the Venue is not required during the Hire Period for any purpose other than which would require the Equipment to be dismantled and re-installed;
  4. using the Equipment in strict conformity with the Equipment’s instructions or specifications;
  5. complying with all relevant laws applying to the use and operation of the Equipment;
  6. protecting the Equipment against damage, fire, tempest, flood, theft, distress or seizure;
  7. ensuring that the Equipment is not used in any manner likely to result in undue wear;
  8. informing MPH as soon as practical of any damage or loss to the Equipment; and
  9. in the event that the Equipment becomes unsafe, ensuring appropriate steps are taken to prevent injuries to persons and to prevent the Equipment sustaining further damage.

10

Equipment Defects

10.1

The Customer must inspect all Equipment on receipt and notify the MPH of any shortage in the quantity or type of Equipment received or damage to the Equipment immediately. Any shortages not notified at the time of Delivery or Collection or Return of the Equipment (as applicable) on the Start Date will be charged for in full.

10.2

If the Equipment has a defect resulting from:

  1. proper and ordinary use; or
  2. the development of an inherent fault,

MPH will at its option repair or replace the Equipment or reduce the Fees accordingly.

10.3

The Customer must not try to make any repairs to the Equipment without the prior approval of MPH.

11

Loss and Damage

11.1

The Customer will be:

  1. responsible for any loss or damage to the Equipment irrespective of how the loss or damage occurs (subject only to fair wear and tear) during the Hire Period (Damaged Goods) and will be liable to pay for the repairs of any Damaged Goods or if the Damaged Goods cannot be repaired, the cost of replacement; and
  2. liable for all costs incurred by MPH in relation to the Damaged Goods including without limitation MPH’s own labour costs, and for the loss of hire fees from future clients for the period during which the Damaged Goods are unable to be re-hired by MPH.

11.2

The Equipment must be returned to MPH in the same condition in which it was supplied. MPH may charge the Customer for the cost of any cleaning or repairs required to the Equipment upon its Return from the Customer. 

11.2

In the event that the Customer does not Return all parts of the Equipment to MPH by the end of the agreed Hire Period the Customer:

  1. may at MPH’s sole discretion, be required to pay an additional fee at the applicable Day Rate for each day or part day for which the Equipment (or part thereof) is retained by the Customer and/or charged for the replacement cost of the Equipment (as the case may be); and
  2. will be liable for the payment of the new list price of any Equipment not returned to MPH.

11.3

In the event of any breakdown or failure of the Equipment whatever the cause, the Customer must notify MPH immediately so that appropriate action may be taken.

11.4

If the breakdown or failure of the Equipment results from proper or ordinary use or the development of an inherent fault not ascertainable prior to the Hire Period, MPH may at its discretion, either repair the Equipment at the Venue or replace the Equipment.

11.5

If repair is impracticable and replacement Equipment is not available, the proportional charge for the broken or defective Equipment will be credited to the Customer and MPH will have no other liability whatsoever to the Customer.

12

Liability

12.1

To the maximum extent permitted by law, the Customer acknowledges that MPH is not liable to the Customer (or any other party) for any loss, damage, injury or any incidental, indirect, special, consequential or economic loss or damage (including but not limited to consequential loss or damage, or loss of opportunity) whether to person or property and whether arising from any delay in Delivery, Return, Collection or any fault or defect in the Equipment or otherwise in connection with the Services.

12.2

the Customer acknowledges that MPH’s liability under any statutory right, or any condition or warranty implied by the Competition and Consumer Act 2010 (Cth) which cannot be excluded, is to the extent permitted by law limited (at our option) to the re-supply of the Services or the payment of the cost of having the Services supplied again.

13

Default and Termination

13.1

If the Customer breaches the Agreement, MPH may, without prejudice to any other remedy available to it:

  1. terminate the Agreement or any part of it;
  2. require immediate payment of all Fees which would become payable by the Customer to MPH at a later date on any account, without further notice;
  3. recover from the Customer:
    1. interest on any sum due at the Default Rate;
    2. unpaid Fees;
    3. all costs and expenses (including without limitation all legal costs and expenses) incurred by it resulting from the default or in taking action to enforce compliance with the Agreement or to recover the Equipment;
    4. the cost of repairing or replacing any lost, damaged or destroyed Equipment;
    5. subsequent lost hire charges as a result of the Equipment being lost, damaged or destroyed until the Equipment is repaired or replaced; and/or
    6. damages from the Customer for breach of the Agreement; and
  4. cease or suspend for such period as MPH thinks fit, supply of any further Equipment to the Customer.

13.2

On termination, the Customer must immediately make the Equipment available for Return. If the Customer does not, MPH is licensed and entitled to enter any land and or premises where the Equipment is suspected to be kept to repossess the Equipment. MPH will not be liable for any damage caused and the Customer must indemnify MPH from any liability to it or any third party in respect of any damage, demands, proceedings, costs and expenses however so arising.

14

Force Majeure

MPH will not be liable or responsible for any failure to perform, or delay in performance of, any of its obligations under this Agreement that is caused by a Force Majeure Event.

15

GST

15.1

Unless otherwise expressly stated, all prices or other sums payable or consideration to be provided under this Agreement are exclusive of GST.

15.2

In addition to the price for the Equipment and/or the Services, the Customer must pay to MPH an amount equal to any GST payable by MPH for any supply made under this Agreement by MPH.

15.3

The Customer must:

  1. pay GST, without deduction or set off of any other amounts, in addition to and at the same time that the consideration for the supply is to be provided under this Agreement; and
  2. indemnify MPH in respect of any GST or other changes which may be payable as a result of any supply of Equipment and/or Services to the Customer.

15.4

MPH must deliver a tax invoice or adjustment note to the Customer before MPH is entitled to payment of an amount under clause 15.2. MPH can withhold payment of the amount until the Customer provides a tax invoice or an adjustment note, as appropriate.

15.5

If an adjustment event arises in respect of a taxable supply made by MPH this Agreement, the amount payable by the Customer under clause 15.2 will be recalculated to reflect the adjustment event and a payment will be made by the Customer to MPH or by MPH to the Customer as the case requires.

16

Insurance

16.1

During the Hire Period, MPH must hold and maintain the following insurance coverage, at its own expense:

  1. public liability insurance for at least $20 million indemnity for each claim; and
  2. such other insurances as required to comply with any laws, including workers’ compensation insurance and professional indemnity insurance;
  3. appropriate insurance cover in connection with or arising out of:
    1. the hiring of the Equipment and/or the Services; and
    2. the Event and/or the Venue, including, without limitation, theft insurance, file and perils insurance for at least $100,000 indemnity for each claim.

16.2

The Customer must ensure that MPH is noted as an interested party on all policies of insurance required to be held under this Agreement.

16.3

Copies of all certificates of currency for the insurance policies must be provided to MPH by the Customer on or before entering into the Agreement and upon reasonable notice by MPH at any time during the Hire Period.

16.4

The Customer must promptly and in accordance with the terms of the relevant insurance policy report to both the insurer and MPH any claims, or event which may give rise to a claim, against the Customer or MPH.

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17

Ownership

17.1

MPH retains ownership of all Equipment during the Hire Period.

17.2

The Customer acknowledges that during the Hire Period it has no right to assign or otherwise grant its rights under any Contract with MPH in relation to the Equipment or Services without the prior written consent of MPH.

18

PPSA

18.1

The Customer acknowledges and agrees that this Agreement may give rise to the creation of a Security Interest in the Equipment pursuant to the PPSA.

18.2

For the purposes of clause 18.1, the Customer consents to MPH effecting a registration on the PPSR (in any manner MPH considers appropriate) in relation to that Security Interest and agrees to do anything that MPH requires it to do (such as obtaining consents, signing and producing documents, producing receipts and getting documents signed and completed) to provide effective security, to register in respect of a Security Interest or to enable MPH to exercise its rights in connection with the Equipment.

18.3

The Customer agrees to indemnify MPH from and against all of MPH’s costs and disbursements, including legal costs, incurred in exercising MPH’s rights under this clause 18.

19

Intellectual Property and Confidential Information

19.1

MPH retains sole ownership of any Intellectual Property provided to the Customer, and the Customer must not replicate or use the Intellectual Property without the prior written consent of MPH.

19.2

The Customer must not use or disclose to any third party any Confidential Information disclosed to the Customer.

20

Notice

20.1

Any notice to be provided in relation to this Agreement must be in writing and set out to:

  1. If to MPH:
    1. Attention: Matthew Hansen
    2. Address: Building 1, 1430 Melrose Drive, Tullamarine VIC 3043
    3. Email: matt@mphaus.com
  2. If to the Customer, the last known address or email of the Customer.

20.2

Any notice is regarded as given and received:

  1. if it is sent by mail:
    1. within Australia, three Business Days after posting; or
    2. if to or from a place outside Australia, 10 Business days after posting; and
  2. if it is delivered or sent by email or fax, upon receipt of a delivery receipt that the email has been delivered to the recipient. If Delivery occurs on a day which is not a Business day or at a time after 5:00 pm in the place of receipt, it is regarded as having been received at 9:00 am the next following Business Day.

21

General

21.1

This Agreement is governed by the State of [Victoria]. The parties submit to the jurisdiction of the courts in the State of [Victoria].

21.2

MPH reserves the right to vary this Agreement at any time with notification to the Customer and without the Customer’s consent. Such variation will apply to all Purchase Order from the date of variation but will not have retrospective effect.

21.3

MPH may assign or otherwise deal with any or all its rights and obligations to the Customer without the Customer’s consent.

21.4

Any apparent failure of MPH to enforce any of these Terms and Condition will not be considered a waiver of MPH’’s rights or the Customer’s obligations under this Agreement.

21.5

In the event of an inconsistency between the documents that make up this Agreement, the inconsistency shall be resolved in the following order of priority:

  1. the Quotation;
  2. the Credit Account Application;
  3. the Terms and Conditions; and
  4. the Purchase Order.

21.6

If any part of this Agreement held to be invalid or unenforceable by any judicial or other competent authority, that clause or part shall be severed with the remaining clauses or parts remaining in full force.