These Terms apply to the lease of all Goods by Bestoh Productions Pty Ltd (ABN 62642651625) (Bestoh) to the Customer. By executing the Order (or otherwise paying Bestoh any Fees or taking delivery of any Goods), the Customer accepts the terms of this Agreement and shall be bound by them.
1. Definitions: Agreement means these Terms, together with the terms of any Order. COVID-19 Delay means a delay suffered by a party in performing its obligations under this Agreement due to the COVID-19 pandemic or any legal or regulatory requirement relating thereto. Certificate means a Certificate of Compliance for Building Work issued under the Building Regulations 2018 (Vic). Customer means the customer named in the Order that will be invoiced for the Fees (which may be different from the end-user of the Goods if the Customer is acquiring a lease of the Goods for use by another). Delivery Address means the Site. Extension Event means the occurrence of any one or more of the following events: (i) a COVID-19 Delay; (ii) delay in the performance of the Works due to inclement weather or the effects of inclement weather; or (iii) a Force Majeure Event in respect of which the Developer is entitled to a suspension of its obligations under clause 11. Force Majeure Event means any event or combination of events which (i) is beyond the reasonable control of a party; (ii) causes a failure to perform or delay in performance by that party of any of its obligations under this Agreement which may include fire, lightning, explosion, flood, earthquake or extreme storm or force of nature, civil commotion, sabotage, war, revolution, radioactive contamination, toxic or dangerous chemical contamination, strikes, lock-outs, industrial disputes, labour disputes, industrial difficulties, labour difficulties, work bans, blockades or picketing and a delay in obtaining an authorisation not caused by the act or omission of the relevant party, but does not include anything arising out of or in connection with the COVID-19 virus or pandemic or any legislative requirement relating to either of them because (for the avoidance of doubt) Bestoh has a right to claim for a COVID-19 Delay as an Extension Event. Goods means the goods and products described in the Order to be delivered and installed on the Site. Fee means the fee(s) payable for the lease, delivery and/or installation of the Goods, plus applicable taxes as detailed in the Order. Installation Plan means the plan attached to the Order which shows where on the Site the Goods are to be installed. Lease Term means the period that the Goods are leased to the Customer at the Site as set out in the Order on Site. Loss means all loss, damage, liability, harm, charges, costs and expenses (including all legal fees). Order means a document issued by Bestoh (regardless of the title) setting out the Goods, the Delivery Address, the Lease Term, the Fee, payment terms and such other matters Bestoh decides to include. Personnel of a party means that party’s contractors, employees, agents and officers. Site means the land/premises described in the Order.
2. Orders,delivery& installation: After receipt of an Order, the Customer may only vary or cancel its order for the lease of Goods with Bestoh’s written consent. On the date agreed in writing between the parties, Bestoh will deliver the Goods to the Delivery Address and the Customer authorises Bestoh to leave the Goods at this address, whether any person is present) and collect the Goods from the Delivery Address at the end of the Lease Term or earlier if terminated by Bestoh. On the date agreed in writing between the parties, Bestoh will commence the installation of the Goods at the Site generally as per the Installation Plan. The Customer is responsible for ensuring that Bestoh is provided with all necessary information about the Site (including weight loading restrictions and obstacles/obstructions) and for ensuring that Bestoh is able to deliver to, install and collect the Goods from the Delivery Address at the end of the Lease Term or earlier if terminated by Bestoh. The Customer shall pay the costs and fees of Bestoh the collection and removal of the Goods from the Site. If there is not adequate access, or the Site is not fit for operating crane/plant (including due to insufficient or incorrect site information provided by the Customer), the Customer agrees to pay any additional costs incurred by Bestoh in effecting delivery, installation or collection of the Goods to the Customer (including, for delayed delivery, installation or collection, at Bestoh’s standard daily rate for lease of the Goods for each day (or part-day) that Bestoh is delayed in delivering, installing or collecting the Goods). The Customer authorises (and represents that it has the right to authorise) Bestoh or its agent to enter any premises where Bestoh reasonably believes that the Goods may be located (Premises) and retake possession of the Goods at the end of the Lease Term, or upon termination of this Agreement if earlier. The Customer releases Bestoh and its representatives from any liability or damage incurred in retaking or attempting to retake possession of any Goods from the Premises.
3. Lease terms: The Goods are leased to the Customer for no longer than the Lease Term. At all times title to the Goods remains withBestoh and the Customer must not do anything inconsistent with such title, including pledging, loaning, mortgaging or disposing of the Goods, or permitting any liens to be placed on the Goods. The Customer must not sub-lease, or allow any other person to use, any Goods without the prior written consent of Bestoh. If the Customer sub-leases or allows another person to use the Goods, notwithstanding any consent of Bestoh to this act, the Customer acknowledges and agrees that it at all times remains fully liable for the Goods under these Terms.
4. Customer obligations: The Customer is liable for any damage to, or loss of, the Goods during the Lease Term, and during the Lease Term the Customer must, at its own expense, hold and maintain with a reputable insurer or insurers, public liability insurance and insurance to fully protect the Goods from accident, fire and theft, on terms and conditions generally used in the relevant industry for that type of policy (and in respect of the accident, fire and theft insurance, for the full insurable value of the Goods). Upon request the Customer must promptly provideBestoh with evidence of such insurance. The Customer must not do or permit anything to be done which may prejudice any insurance or permit any insurer to decline a claim. The Customer is fully responsible for ensuring that its use of the Goods complies with any laws (including for obtaining any engineering or certification certificates and permits that are necessary for its use of the Goods on any land or for any purpose) (provided that Bestoh or its subcontractors will supply the Goods with a Certificate. The Customer must at all times: (i) keep the Goods in good working order and safely and securely housed; (ii) not make any repairs or alterations to the Goods, or move the Goods (including set-up or take-down) without Bestoh’s prior written consent. ; (iii) permit Bestoh to inspect the Goods whenever Bestoh requests, subject to COVID-19 restrictions and approval processes; (iv) ensure that the Goods are only used in accordance with the directions made available to the Customer by or on behalf of Bestoh; (v) ensure that identifying numbers or marks on Goods are not altered; (vi) immediately notify Bestoh if any Goods are stolen, lost, destroyed or substantially damaged or impaired; and (viii) immediately give Bestoh written notice of any change in the Customer’s name or address or of the address where the Customer stores or uses the Goods. The Customer agrees to pay Bestoh the cost of repairs to Goods that are due (in Bestoh’s reasonable opinion) to the Customer not complying with its obligations under this Agreement.
5. Risk: Upon issue of the Certificate(i) the Customer shall be deemed to have accepted the Goods, and (ii) all risk in the Goods shall pass to the Customer for the duration of the Lease Term.
6. Payment: The Customermust pay Bestoh the Fees in accordance with the payment terms set out in the Order. Time shall be of the essence in respect to all monies payable by the Customer to Bestoh. If a payment is not made by the due date, Bestoh may charge (and the Customer agrees to pay) interest at the rate of 10% per annum, calculated daily from the due date up until (and including) the date payment is made in full.
7. Publicity: The Customer consents (and will ensure that all companies using the Goods and controlling the events where the Goods are installed, consent) toBestoh or its representatives taking photographs or videos of the Goods in-situ during the Lease Term, and using such photographs or videos for any purpose (including promotional purposes) without identification or compensation or payment of any kind.
8. Liability: Any representation, warranty, condition, guarantee or undertaking that would be implied into this Agreement by legislation, common law, equity, trade, custom or usage is excluded to the fullest extent permitted by law, provided that nothing in this Agreement excludes, restricts or modifies any consumer guarantee, right or remedy conferred on the Customer by the Australian Consumer Law in Schedule 2 of theCompetition and Consumer Act 2010 (Cth) (ACL) or any other applicable law that cannot be excluded, restricted or modified by agreement. To the maximum extent permitted by law (including the ACL): (i) the Goods and all other products, information, and services provided by Bestoh or its Personnel are provided on an “as is,” “as available” basis, and Bestoh disclaims all warranties relating to such Goods, products, information and services, including warranties of acceptable quality, availability, conformity with description, compliance with laws, or fitness for a particular purpose; (ii) Bestoh will not be liable to the Customer or to any other person for any indirect, incidental, special or consequential loss or damage, loss of profits (or anticipated profits) or business or business opportunity, or damage to goodwill or reputation, irrespective of whether the loss or damage is caused by or relates to breach of contract or tort (including negligence) or otherwise, or a party or any other person was previously notified of the possibility of the loss or damage, or for any loss or damage, harm or injury, including disability or death, that the Customer or any person may suffer, arising out of, or in any way connected with, the use, possession or operation of the Goods by the Customer (except to the extent that such loss or damage, harm or injury arises directly from an act or omission of Bestoh or its Personnel); and (iii) to the extent that Bestoh’s liability is not otherwise lawfully excluded under this clause, the maximum aggregate liability of Bestoh for all claims made by the Customer in connection with this Agreement or the Goods for Losses, regardless of how they arise (including liability for breach of contract or negligence) is limited to the amount of Fees actually paid by the Customer to Bestoh in respect of the Goods giving rise to the Customer’s claim.
9. Indemnity:The Customer indemnifies, releases andholds harmless Bestoh and its Personnel (Indemnified Parties) from and against any and all Loss incurred by an Indemnified Party (including third party claims) arising directly or indirectly out of the use (including any use in breach of law), operation or storage of any Goods, or the Loss of (including lawful confiscation), damage to, or destruction of, any Goods.
10. Extension oftime:If Bestoh has been or will be delayed in delivery or installation of the Goods by any Extension Event, Bestoh will be entitled to an extension of time to the extent that that event has caused or will cause a delay to the delivery or installation of the Goods.
11. Force Majeure Event: If a Force Majeure Event occurs, the party affected or likely to be affected must promptly notify the other party of the event, providing details of the event, any obligations affected, the action being taken to mitigate the situation and the likely duration of the delay. The obligations of the affected party to the extent affected by the Force Majeure Event are suspended while the Force Majeure Event as notified to the other party persists however the affected party must use its reasonable endeavours to remedy the effects of the Force Majeure Event as soon as reasonably practicable. If the effects of a Force Majeure Event affecting either party continue for greater than 90 days in aggregate, Bestoh may immediately terminate this Agreement by notice to the Customer. Termination under this clause will be without liability to either party, other than in respect of any liability accrued as at the date of termination. The affected party must promptly notify the other party when a Force Majeure Event ceases.
12. Termination:A party may terminate this Agreement immediately by notice in writing to the other party if the other party commits a breach of its obligations under this Agreement which is not able to be remedied, or if capable of remedy, is not remedied within14 days of receiving notice from the first party requiring it be remedied. Clauses 5, 6, 7, 8, 9 and 13 survive expiry or termination of this Agreement.
13. General:This Agreement contains, and is deemed to be a conclusive record of, the entire agreement and understanding betweenBestoh and the Customer with respect to its subject matter, and may not be amended or varied unless agreed in writing by the parties (provided that Bestoh may unilaterally correct any error or omissions of any kind in any Order and the correction will be binding on the Customer). Bestoh may appoint any person to perform any, or all, of its obligations under this Agreement. The Customer may not assign this Agreement without the prior written consent of Bestoh. If any provision of this Agreement is found to be invalid or unenforceable, this provision will be severed from this Agreement and this will not affect the validity or enforceability of the other provisions of this Agreement, which will remain in full force and effect. Each party must do or cause to be done all things necessary or reasonably desirable to give full effect to this Agreement and the transactions contemplated by it (including, but not limited to, the execution of documents). No party is liable for any failure to perform or delay in performing its obligations under this Agreement (other than an obligation to pay money) if that failure is due to anything beyond that party’s reasonable contr Failure to perform or delay may include but not limited to adverse weather, site conditions and or unsafe working conditions. The laws of Victoria, Australia govern this Agreement and the parties agree to submit to the non-exclusive jurisdiction of courts of Victoria.