Terms and Conditions
IKONIX Australia PTY LTD ( ABN 13 612 576 995 )
“Customer” means the party to whom the equipment is hired or services supplied.
“Day Rate” means a 10 hour day at rates prescribed by IKONIX Australia PTY LTD.
“Equipment” means all equipment and each item and part thereof supplied by IKONIX Australia PTY LTD under these terms.
“Hire” means the supply by IKONIX Australia PTY LTD of equipment only.
“IKONIX” means IKONIX Australia PTY LTD.
“Services” means the services which IKONIX Australia PTY LTD is to provide pursuant to the terms set out in this agreement.
“Site ” means any location other than IKONIX’s offices where the services are to be provided.
“Terms” means the contract between IKONIX Australia PTY LTD and the Customer.
2. Provision of Services or Equipment
2.1 IKONIX and the Customer shall accept the Services or Equipment subject to these Terms which shall not be varied except in writing signed by IKONIX.
2.2 The Customer acknowledges that it does not rely on any advice or recommendations made on behalf of IKONIX concerning the Services or Equipment, their quality, performance, fitness for purpose, functionality or use unless confirmed by IKONIX in writing.
2.3 IKONIX may without consent (but without reducing its obligations under section 5 of this contract) sub-contract all or any of its obligations to provide goods and services.
2.4 Any typographical or clerical error or omission in documents issued by IKONIX may be corrected without liability on the part of IKONIX.
3. Risk and Property
3.1 The Customer undertakes to indemnify IKONIX in respect of any loss or damage (reasonable wear and tear excepted) to the Equipment and shall at its own expense insure the Equipment against all loss (including loss of earnings and other consequential loss) that IKONIX may incur. Any equipment lost or uneconomic to repair shall be replaced by the Customer at the Customer’s own expense with new equipment of the same or similar specification.
3.2 All equipment on hire shall remain the absolute property of IKONIX and no proprietary interest in the equipment shall vest in or pass to the Customer.
3.3 Not withstanding the terms of any conditions, warranties or representations whether express or implied and whether statutory or otherwise IKONIX shall not be liable in any way for loss, damage, loss of contracts or any consequential loss of any kind suffered by the Customer or any third party or for any delay, late delivery, defect or deficiency of or relating to any equipment or ancillaries being available or any failure, error or mistake by any technician or other staff provided by IKONIX.
4. Customer’s Obligations
The Customer undertakes to IKONIX:
4.1 to take all reasonable care of the equipment to ensure its physical safety and security whilst in the possession or control of the Customer or on Site.
4.2 to notify IKONIX in writing of any change in the Customer’s address or other contact details.
4.3 to procure all necessary licences and permissions relating to any acts of broadcasting, projection, recording, transmission or other communication and the use of live pre-recorded material for such purpose and to indemnify IKONIX against all loss, damage, costs and expenses incurred by IKONIX relating to any claim that the use, broadcast, projection, recording, transmission or other communication of any material infringes any copyright, trade mark or other intellectual property rights of any third party or is undertaken without a valid and effective licence or permission from any relevant licensing or other regulatory authority in the territory concerned.
4.4 to provide IKONIX with free access to such facilities on Site at such times as IKONIX may reasonably require to enable IKONIX to provide its services.
4.5 to take all reasonable precautions to protect the health and safety of IKONIX’s employees and sub-contractors.
4.6 to ensure that the Equipment is used in a proper manner without risk to health and safety and not contrary to any law or for any purpose for which the Equipment is not designed or suitable.
4.7 not to modify the Equipment or to remove any notices, labels or serial numbers.
4.8 not to sell, sub-let or otherwise dispose of or part with the Equipment or interest therein but to keep the Equipment in its possession and control free from lien charge or encumbrance so that the Equipment shall at all times remain the property of IKONIX.
4.9 not to remove the equipment from the Australia without prior consent of IKONIX.
4.10 If the Equipment, or any part of it, is lost, stolen or damaged during the period from Delivery to Return, in circumstances where the Customer bears responsibility under these Terms, the Customer will pay IKONIX :
a) the costs and expenses of replacing all lost or stolen Equipment (if the Equipment cannot be replaced with identical make and model then the costs and expenses of the closest substitute make and model fulfilling substantially the same functions and specification as the lost or stolen Equipment) ; and/or
b) the cost and expenses of repairing all damaged Equipment; and/or
c) the costs and expenses of replacing all Equipment which, in the sole determination of IKONIX, is damaged beyond repair or cannot be brought back to the condition pre-delivery (if the Equipment cannot be replaced with identical make and model then the costs and expenses of the closest substitute make and model fulfilling substantially the same functions and specification as the damaged Equipment) ; and/or
d) indirect and consequential losses caused by the loss of or damage to the Equipment including but not limited to the Day Rate multiplied by the number of days from end of the Period of Hire until the successful repair or replacement of the lost, stolen or damaged Equipment and all lost earnings; and/or
e) The Customer will fully indemnify IKONIX for any other liability, loss or cost that IKONIX may sustain by reason of IKONIX being unable to meet any other contractual obligation to supply the Equipment (or any part thereof) to any other person.
4.11 If the Customer fails, for any reason whatsoever, to return the Equipment before the end of the Period of Hire, then the Customer will be in continuing breach of these Terms until such time as the Customer returns the Equipment. Without prejudice to any other rights which IKONIX may have, either pursuant to these Terms or at law, the Customer will be liable to pay IKONIX the Day-Rate per day for the period from the end of the Period of Hire until the Customer returns all of the Equipment and the Customer will indemnify IKONIX for any other liability, loss or cost that IKONIX may sustain by reason of IKONIX being unable to meet any other contractual obligation to supply the Equipment (or any part thereof) to any other person.
5. IKONIX’s Obligations
5.1 IKONIX shall use its reasonable endeavours to provide the Equipment and Services in all material respects in accordance with the Terms exercising all reasonable care and skill.
5.2 IKONIX shall have no liability unless the Customer gives IKONIX reasonable details in writing within three months of the occurrence of the matter giving rise to the claim.
5.3 IKONIX shall not be liable to the Customer by reason of delay or failure in performing any of IKONIX’s obligations due to any cause beyond IKONIX’s reasonable control including without limitation industrial actions or trade disputes.
5.4 IKONIX shall not be liable for costs to replace lost or damaged recordings provided by the Customer other than the costs to replace the blank material costs only.
5.5 Any liability of IKONIX whether in contract or otherwise not excluded hereunder shall be limited to the contractual hire fee.
6. Prices and Payment
6.1 The prices of Equipment and Services shall be stated in IKONIX’s audio visual quotation or other order acknowledgment provided that any extra equipment subsequently required shall be chargeable in addition.
6.2 IKONIX reserves the right to by notice given at any time to increase the price to reflect any increase in cost due to any factor beyond the control of IKONIX or delay caused by the Customer.
6.3 The Customer shall pay the price of the Hire or Services within 7 days on the date of invoice unless other payment terms have been agreed in writing by IKONIX notwithstanding that that the Hire of performance of Services has not then been completed.
6.4 Should the Customer fail to pay any sum on the due date then, without prejudice to any other right or remedy, IKONIX may cancel this contract, suspend provision of Services, remove Equipment from Site and/or charge interest on the unpaid amount at the rate of 2% per month calculated on a daily basis.
7.1 In the event of cancellation of the hire order by the Customer the following charges will apply for any remaining monies:
100% charge if cancelled within 24 hours prior to collection or install
75% charge if cancelled within 72 hours prior to collection or install
50% charge if cancelled within 10 days prior to collection or install
Any cancellation must be communicated to IKONIX via email.
8.1 In the event of bankruptcy, insolvency or liquidation of the Customer or if the Customer ceases or threatens cessation of business or IKONIX reasonably apprehends that the aforesaid is about to occur or if the Customer is in breach of these Terms, then without prejudice to any other right or remedy IKONIX may without liability to the Customer by notice cancel or suspend provision of its Services, repossess Equipment and, if any Services or Equipment have been provided but are unpaid, the price shall become immediately due and payable notwithstanding any contrary agreement.
9.1 Any notice must be sent in writing and sent to the principal place of business of the party concerned.
9.2 No waiver of any breach of these Terms shall be a waiver of any subsequent breach of the same or any other provision.
9.3 If any provision hereof is invalid or unenforceable in any respect, the validity and enforceability of the remaining provisions shall be unaffected.
9.4 The interpretation and application of these Terms and conditions of business shall be in accordance with Australian Law.
10. INDEMNITY PROVISION
Each party (Indemnifying Party) indemnifies and holds harmless the other party and its successors, assigns, affiliates, officers, employees, agents, lessees and Related Body Corporates (within the Corporations Law meaning of such terms) (“Indemnified Parties”) against all losses, damages, costs (including, without limitation, legal fees and disbursements (irrespective of whether litigation is actually commenced), actions, claims, demands or any other liability whatsoever incurred or suffered by the Indemnified Parties arising directly or indirectly from:
- i) Any wilful, reckless or negligent act or omission by the Indemnifying Party, the Indemnifying Party’s employees, agents or contractors (or of any other person for whose acts or omissions the Indemnifying Party is vicariously liable in the performance of this Agreement)(“Indemnifying Parties”);
- ii) Any breach of this Agreement by the Indemnifying Parties Trust;
iii) Any infringement of the intellectual property rights of any person by the Indemnifying Parties;
- iv) Any damage to property or injury or death or any person caused or contributed by the Indemnifying Parties ; and
- v) Any damage to or injury sustained by the employees, contractors or agents of the Indemnifying Party unless the same is the direct result of an act or omission of the Indemnified Parties that is either negligent or unlawful or in breach of this Agreement.
11. FORCE MAJEURE
Although IKONIX AUSTRALIA PTY LTD shall use all reasonable endeavours to discharge its obligations under a Contract in a prompt and efficient manner, it does not accept responsibility for any failure or delay caused by circumstances beyond its control.
12. Intellectual Property
All intellectual property remain with IKONIX Australia Pty Ltd whether now existing or created after the Assignment Date including copyright and neighbouring rights, registered and unregistered trade and service marks, business and domain names, all rights in relation to inventions (including patents and patent applications), designs, plant varieties, circuit layouts, confidential information, trade secrets, know how, research data, recipes, formulae, discoveries and any other intangible proprietary rights whether registered or not arising from intellectual activity related in any way to the invention, software, plant variety, circuit layouts, products or services described in the quotation. All relevant programming information remain that of IKONIX Australia Pty Ltd.