- PREVIALING TERMS
These Terms (and no other terms or conditions) apply to Equipment Hire and Drink Sales from Us to the Client as applicable.
In this document:
(a) “ACL” means the Australian Consumer Law which is contained in Schedule 2 of the Competition and Consumer Act 2010 (Cth);
(b) “Claim” means any actual, contingent, present or future claim, demand, action, suit or proceeding for any Liability, restitution, equitable compensation, account, injunctive relief, specific performance or any other remedy of whatever nature and however arising, whether direct or indirect, and whether in contract, tort (including but not limited to negligence) or otherwise;
(c) “Contract” means a contract formed as a result of the acceptance of a Quotation by Us;
(d) “Client” means the person or legal entity set out in any Quotation, offer or other document provided by Us;
(e) “Deposit” means 30% of the total Price stated on the Quotation.
(f) “Drinks” means any alcohol and associated mixers, soft-drinks, additives, consumables etc., sold to the Client to serve related to the Equipment Hire;
(g) “Equipment” means the equipment stipulated in the Quotation to be hired to the Client pursuant to these Terms;
(h) “Liability” means any loss, liability, cost, payment, damages, debt or expense (including but not limited to reasonable legal fees);
(i) “Our, Us, We” means A Man & His Cave Pty Ltd. (ABN 63645839881) being the entity that accepts the request to provide Equipment Hire and supply Drinks to the Client;
(j) “Personnel” means any employee, servant, contractor, sub-contractor, agent, partner, director or officer of a Party;
(k) “Prices” means the price for the Equipment Hire and supply of Drinks (as applicable) as appears in the Quotation;
(l) “Quotation” means any written or verbal quote provided by Us to the Client for supply of the Equipment and sale of Drinks (as applicable);
(m) “Site” means the address/es for the drop location for Equipment as stipulated in the Quotation; and
(n) “Terms” means these Terms and Conditions.
- EQUIPMENT HIRE AND SUPPLY OF DRINKS
(a) Any quotation by Us does not constitute an offer to supply the Equipment and Drinks (as applicable).
(b) Unless We otherwise state, any Quotation from Us will remain valid for 30 days from the date of the Quotation, provided that We may withdraw or vary a Quotation at any time prior to Our acceptance of the Quotation.
(c) We will consider all bookings tentative and not binding until:
- the Client agrees to these Terms, or otherwise negotiates and enters into a written and signed varied contract for the supply of the Equipment and Drinks (as applicable);
- and/or both the Client and We have agreed to these Terms through signing the Quotation.
(d) Any execution of the Quotation by the Client or payment of the Deposit will constitute agreement to these Terms by the Client.
(e) If We accept a Quotation, the Parties will have created a binding Contract and We will supply of the Equipment and Drinks (as applicable) to the Client, and the Client will pay Us the Price in accordance with the terms of the Contract (which will include these Terms).
(f) We may cancel any Contract at any time prior to the delivery of the Equipment for hire with no liability other than to repay any amount of the Prices paid in advance of the cancellation. We also reserve the right to cancel the Contract if payment of Deposit and residual amount is not received within the prescribed times as set out below.
(g) The Client may cancel the Contract by providing Us written notice of such cancellation. Cancellation Fees will be charged, in Our sole discretion, as follows:
- Where the date of notification is after We have confirmed the hire date, we will retain issue a store credit for 100% of the invoiced amount valid for 12 months from the date of notification; and
- If the date of notification is within 14 days of the date of supply of Equipment, We will issue a store credit for 70% of the invoiced amount valid for 12 months from the date of notification; and
- If the date of notification is within 7 days of the date of supply of Equipment, We will retain 100% of the invoiced amount.
(h) In the event of inclement weather or any other event causes the Client to cancel the Equipment Hire the cancellation policy as set out above applies.
- PRICE AND PAYMENT TERMS
(a) The Price/s for Equipment Hire and purchase of Drinks (as applicable) is as set out in the Quotation. Prices stipulated in the Quotation include GST.
(b) If Equipment is not finally returned or ready for pick-up by Us at the expiration or termination of the hire period stated in the Contract, the Client will pay an additional charge of 100% the daily rate for every additional day or part thereof that the Equipment is retained by the Client.
(c) The Deposit is payable upon acceptance of the Quotation.
(d) Full payment of the estimated cost of the supply (as set out in the Quotation) must be received by Us prior to the date of supply (Due Date), either by cash or credit card. Credit Card payment incurs a 2% surcharge for processing. Bank transfer payments must be received by Us 2 business days prior to the date of supply (Due Date).
(e) Damage to or loss of Equipment and other incidentals may also be incurred during the supply term and will be charged accordingly. We will reconcile any additional costs or changes and either invoiced to the Client or reimbursed to the Client as applicable within 7 days of the date of supply.
(f) The Client must not withhold, make deductions from, or set-off, payment of any money owed to Us for any reason.
(g) If the Client does not pay Us by the Due Date, We will be entitled to charge the Client interest on the monies due on a daily basis at the rate of 3% above the Reserve Bank of Australia Cash Rate calculated daily and compounded monthly from the Due Date for payment until the actual date of payment;
(a) We do not provide any express or implied warranties for the hire of the Equipment or Drinks supplied, except to the extent required pursuant to the ACL. Nothing in these Terms are intended to have the effect of contracting out of any applicable provisions of the ACL except to the extent permitted by the ACL.
(b) If you are deemed a Consumer within the meaning prescribed in the ACL, the equipment hire services (Services) come with guarantees that cannot be excluded under the ACL (Consumer Guarantees). In the event that our Services fail to satisfy a Consumer Guarantee, the Client is entitled to a cancel the service and get a refund for a major failure (under the ACL) and compensation for the difference in the service delivered and what the Client paid for. In the event of a minor failure (under the ACL) We will re-perform the Services and fix the defective issues free of charge within a reasonable time, or where not possible, the Client may receive a refund for the Services not properly provided in accordance with the ACL.
(c) We are a re-supplier of Drinks. If you are deemed a Consumer within the meaning prescribed in the ACL, the Drinks come with guarantees that cannot be excluded under the ACL (Consumer Guarantees). In the event that any product purchased by the Client from us fails to satisfy a Consumer Guarantee, upon notification from the Client of such defective product, We will, in Our sole discretion, remedy such defect by refunding or replacing the defective product in accordance with its obligations under the Consumer Guarantees.
- ADHERENCE TO LAWS
(a) Our liquor licenses allowing the supply of Equipment and Drinks to the Client requires strict adherence to certain terms. Therefore the Client agrees to ensure:
a. the Client represents and warrants that it, or its responsible person, is of legal age to purchase alcohol and any alcohol purchased from Us becomes the responsibility of the Client, including the responsibility to abide by the applicable laws governing the sale and supply of alcohol to others, which includes but is not limited to: (a) The responsible service of alcohol; (b) The serving of alcohol to minors; (c) Ensuring that they have all relevant licences and approvals for the sale or supply of alcohol at that particular location.
(b) If the Client causes Us to contravene or breach any of the terms of our licences or any other laws or regulations, the Client must indemnify Us for any damage, fines, penalties or costs We incur including damage or economic loss related to any loss of Our licences or breach of regulations or laws.
- FURTHER CONDITION RELATING TO EQUIPMENT HIRE AND/OR SUPPLY OF DRINKS
(a) Where a Client wishes to change the dates of Equipment Hire, provided the Client gives Us more than 14 days notice, We will use reasonable efforts to attempt to change the date subject to availability. We are entitled to charge the Client for any costs incurred in postponing or altering the date of Equipment Hire. Postponement with 7 days or less notice prior to date of Equipment Hire will be treated as a cancellation.
(b) It is the Client’s responsibility to facilitate access for Us to access the drop-off location. It is the Client’s responsibility to organise parking (and cover costs of such parking) for Our equipment delivery vehicle/s.
(c) The Client acknowledges that the following conditions apply to the hire of Equipment:
a. The Client must produce valid Australian photo identity with current address details in order that the Equipment will be supplied to the Client. An interim receipt or non-photo ID is not acceptable as proof of identity or age.
b. The Client is required to provide credit card details and authority to charge as security for the return of Equipment and after the Equipment passing satisfactory inspection. We reserve the right to recover any monies lost by charging the provided credit card should there be any missing components or they believe the Equipment to be damaged in any way. All charges will be notified to the Client prior to the credit card being charged.
c. Upon installation, delivery or collection of the Equipment immediately examine the Equipment to satisfy itself as to its condition and suitability and fitness for the purpose to which it requires the Equipment. In accepting the Equipment, the Client acknowledges that it has duly examined the Equipment and has satisfied itself as required. The Client acknowledges that it has not in any way relied upon the skill or judgment or any representation made by or on Our behalf in respect of the Equipment, its purpose, suitability or performance;
d. The Client has received adequate instruction on the correct transportation, installation and use of the Equipment (as applicable), which includes demonstration or verbal or written instructions and agrees not to use the Equipment at locations or purposes different to the Equipment’s general designated purpose and specified suitability (such as indoor versus outdoor use);
e. The Client will not remove the Equipment or any part thereof from the situation and position of its installation without Our consent;
f. The Client is responsible for the Equipment, the use of the Equipment and is liable for any damage to the Equipment or any damage or injury caused by the use, damage or loss of the Equipment under its hire, from the time of its delivery until collection by or return to Us, including any costs incurred by Us in repairing or replacing the Equipment and hire charges for the Equipment until the Equipment is repaired or replaced;
g. The Client will return, or make available for collection the Equipment in a clean condition and readily accessible by Us.
h. We may inspect the Equipment at any time during the period of hire, whether notice of such inspection is given to the Client or not, and the Client shall provide all assistance and co-operation necessary to facilitate such inspection of the Equipment. The Client shall indemnify Us in relation to any action of trespass or any other action or claim against Us in the course of exercising Our right to inspect the Equipment.
i. All property in and title to the Equipment at all times remains with Us, the Client does not acquire any property in or title to the Equipment and the Client’s interest in the Equipment is as bailee of the Owner only.
j. The hiring of Equipment will commence from the date in the Quotation and continue for the term specified therein. The Client may terminate the hire of the Equipment by notifying Us that the Equipment is ready for collection, provided that the Client keeps the Equipment safe until collection.
k. Upon termination of hire, We are entitled to take possession of the Equipment immediately and for this purpose the Client irrevocably appoints Us as its agent and authorises Us to:
i. enter upon any land or premises upon which the Equipment is situated or where We have any reason to believe that the Equipment may be situated;
ii. Remove the Equipment whether or not it is affixed to the land or premises, connected to property or equipment not owned by the Client, in use by the Client or any other person or containing property not owned by the Client.
(d) If the Equipment is lost, breaks down or is damaged, the Client must immediately notify Us. Notification shall not absolve the Client from its obligations under these Terms. In the event that the Equipment breaks down or becomes unsafe to use, the Client must immediately stop using the Equipment and take all steps necessary to prevent the Equipment from sustaining any further damage. The Client must take all steps necessary to prevent injuries from occurring to any person or property as result of the condition of the Equipment and must not repair or attempt to repair the Equipment without Our prior consent.
8. SITE, SECURITY AND SAFETY
(a) The Client is responsible for the Site and the safety of all persons, including Our Personnel on the Site and delivery of Equipment by Our Personnel to the Site.
(b) Our Personnel use reasonable endeavours to comply with all applicable legislation and standards related to maintaining safe work practices.
(c) We follow the National Alcohol Beverage Industries Council guidelines on the Responsible Service of Alcohol. Our Personnel are instructed not to deliver alcohol to persons under the age of 18 years, or to guests in a state of intoxication. We reserve the right to refuse service and or delivery.
(d) The Client will be responsible for any damage sustained to Our Equipment or property during a function and will be charged for any repairs, labour or replacement. We recommend that the Client considers and arranges security for their functions (of at least 1 security provider for every 100 attendees).
(a) We maintain appropriate product liability, professional indemnity and workers health and safety insurance.
(b) The Client must also maintain at its own expense all appropriate policies of insurance including:
- any applicable events liability/public liability insurance;
- any required workers compensation and health and safety insurance; and
- theft and damage insurance to the Equipment hired in an amount not less than the full replacement cost of the Equipment and for liability, property and casualty insurance coverage in amounts necessary to fully protect Us and the Equipment against all claims, loss or damage whatever.
- INELLECTUAL PROPOERTY
The Client must obtain Our prior permission to use any of Our trade marks, copyright protected works, including images, menus and artwork prior to using, copying, displaying, advertising or publishing such intellectual property.
(a) Our liability for any Liability or Claim in relation to these Terms, any Contract, any Equipment Hire, or the supply of Drinks, (whether under statute, contract, tort, negligence or otherwise) will be limited to the total Price paid (exclusive of GST) under the Contract(s) that gave rise to such Liability.
(b) We will not be liable to the Client for any Liability or Claim of any kind arising directly or indirectly (whether under statute, contract, tort, negligence or otherwise) in relation to any indirect or consequential loss (including but not limited to any loss of actual or anticipated profits, revenue, savings, production, business, opportunity, access to markets, goodwill, reputation, publicity, or use) or any remote, abnormal or unforeseeable loss or any similar loss whether or not in the reasonable contemplation of the Parties.
(c) The limitations and exclusions in this clause 11 do not apply to the extent that any loss is directly attributable to:
- personal injury or death caused by Our default, breach of these Terms or negligence; or
- fraud by Us.
(d) Each Party must take reasonable steps to mitigate any loss it suffers or incurs.
- RELEASE AND INDEMNITY
The Client indemnifies Us and each member of Our Personnel from and against any Liability or Claim arising directly or indirectly in relation to:
(a) the Client’s breach of these Terms or any Contract;
(b) the negligence or wilful misconduct of the Client or any member of the Client’s Personnel or the Client’s guests; and/or
(c) Us having to redeliver Equipment on hire or Drinks ordered, or undertake any rework, as a result of the actions or omissions of the Client or any third party.
The Parties agree:
(a) no Contract will create any partnership, joint venture, agency or relationship of employment between the Parties;
(b) these Terms or any Contract may only be amended with both Parties express written agreement, noting that disposal of or additions to Site/s included in the Contract will create a variation to the Contract by way of addition or deletion of that Site and does not affect the Terms as they relate to any other Site;
(c) any waiver by either Party must be express and in writing;
(d) failure to insist upon strict performance of any of these Terms, or to exercise in whole or in part any right that it may have under these Terms, shall not be deemed to be a waiver of any rights a party may have and shall not be deemed a waiver of any subsequent breach by of any of these Terms;
(e) the actions of any person claiming to have a Party’s authority will bind such Party to the extent permitted by law;
(f) if any provision of these Terms or any Contract is unenforceable, the provision will be severed and the remaining provisions will continue to apply;
(g) that We may pay a rebate, commission or other financial benefit to event organisers or like suppliers in connection with the Equipment Hire or supply of Drinks to the Client;
(h) these Terms and all obligations hereunder shall be binding on each party’s personal representatives, successors and permitted assigns and shall be for the benefit of the relevant party’s successors and assigns;
(i) Neither Party may assign any rights or benefits under any Contract or these Terms or any Contract to any third party without the written consent of the other Party; and
(j) The laws of Victoria govern these Terms and any legal action relating to them shall be brought in Victorian Courts.