1.1 “Conditions” means these terms & conditions;
1.2 “Client” means the company, individual, sole trader, association, unincorporated body or partnership stated in the Order or as may be otherwise agreed in writing between the authorised representatives of Skylighter Fireworks and the Client;
1.3 “Confirmation” means an acknowledgement issued by Skylighter Fireworks of the Order (which shall include fax, email, short message service, telephonically and verbally);
1.4 “Content” means audio or visual information contained on the Source Material;
1.5 “Digital Delivery” means all methods of delivery of Source Material and New Material, to and from the Client, but excluding physical delivery;
1.6 “Skylighter Fireworks” means Skylighter Fireworks Pty Ltd Pty Ltd (ABN: 38 098 982 417
1.7 “Equipment” means the equipment to be provided by Skylighter Fireworks (if any) in accordance with the Order, together with the accessories (if any) and cases in which the Equipment is packed and any part or parts of the same as further specified in the Order or as may be otherwise agreed between the authorised representatives of Skylighter Fireworks and the Client;
1.8 “New Material(s)” means any material created by or for Skylighter Fireworks in accordance with the Order or as may be otherwise agreed between the authorised representatives of Skylighter Fireworks and the Client, including material created through the duplication or manipulation of the Content;
1.9 “Order” means a request from the Client to Skylighter Fireworks whether issued in writing (which shall include fax, email, short message service, telephonically and verbally) or verbally for the supply of Equipment, New Materials, Personnel and/or Services;
1.10 “Personnel” means the personnel (if any) supplied by Skylighter Fireworks to provide the Services and any or all of them;
1.11 “Proposal” means any written proposal that may be issued by Skylighter Fireworks to the Client (including any proposal to which these Conditions are attached) setting out certain details, including, but not limited to, the Services, New Materials and/or Equipment to be provided as applicable and the charges, fees or costs (some or all of which may be stated to be estimates) relating to them, together with any subsequent amendment(s) as may be agreed in writing between the authorised representatives of Skylighter Fireworks and the Client;
1.12 “Services” means the services to be provided by Skylighter Fireworks (if any) in accordance with the Order, Proposal; or as may be otherwise agreed between the authorised representatives of Skylighter Fireworks and the Client;
1.13 “Source Material” means the instrument on which the original Content is contained and delivered to Skylighter Fireworks by or on behalf of the Client; and
1.14 “Term” means the period of hire of Equipment, the supply of the Services and/or supply of Personnel to the Client, as applicable. In the case of rental of Equipment, this shall commence upon the Equipment being collected by or delivered to the Client and terminate on the date of the return of the Equipment to Skylighter Fireworks in accordance with the Order, Proposal or any extension agreed by an authorised representative of Skylighter Fireworks. In the case of supply of Personnel, this shall commence on the first date of supply of the Personnel and terminate on the return of the Personnel to Skylighter Fireworks’s premises in accordance with the Order, Proposal or any extension agreed by an authorised representative of Skylighter Fireworks.
2. APPLICATION
2.1 These Conditions alone shall govern and be incorporated in every contract made by or on behalf of Skylighter Fireworks with the Client. They shall apply in place of and prevail over any terms or conditions contained or referred to in any documentation submitted by the Client or included in any correspondence, purchase order or elsewhere or implied by trade, custom or course of dealing unless specifically excluded or varied in writing by a board director of Skylighter Fireworks and any provisions to the contrary are hereby excluded or extinguished.
2.2 If, subsequent to any agreement which is subject to these Conditions, an agreement is made with the Client without reference to any terms and conditions, such agreement howsoever made shall be deemed to be subject to these Conditions.
2.3 Any agreement between the Client and Skylighter Fireworks, whether verbal or written, which does not conform to these Conditions shall not be binding on Skylighter Fireworks unless it has been accepted in writing by a board director of Skylighter Fireworks.
3. ORDERS & CANCELLATION
3.1 Each Order placed by the Client shall be deemed to be an offer by the Client to Skylighter Fireworks subject to these Conditions. No Order placed by the Client shall be deemed to be accepted by Skylighter Fireworks until a Confirmation is given by Skylighter Fireworks or (if earlier) Skylighter Fireworks delivers the Equipment, New Materials, Personnel and/or Services to the Client. The Client must ensure that the terms of its Order and any applicable specification are complete and accurate. If Skylighter Fireworks issues a Proposal, the Client’s written approval of such Proposal shall be deemed to be an Order.
3.2 Where prices are stated to be estimates, Skylighter Fireworks shall use its reasonable endeavours to ensure that the estimates are accurate and, in the event that they are not, to inform the Client of the actual price(s) as soon as it becomes aware that the estimate is inaccurate. Approval by the Client of any Proposal that contains estimated prices shall infer the Client’s agreement to pay the actual prices at the date of delivery of the Equipment, New Materials, Personnel and/or Services supplied.
3.3 With the exception of clause 16 [Production & Event Services], if Skylighter Fireworks agrees to accept cancellation of an Order, a cancellation fee shall be payable by the client. This cancellation fee will be the higher of: Skylighter Fireworks’s expenses incurred in relation to the Order or arising from the cancellation or variation; or a percentage of Skylighter Fireworks’s fees and costs for the Equipment, Personnel and/or Services set out in the Order, determined by the length of notice of cancellation provided by the client in writing as follows:– 7 -14 days prior to the event date: 25% of the total Order value– 1 to 3 days prior to the event date: 50% of the total Order value – 1 day prior to the event date: 100% of the total Order value
3.4 If the Client requires any change, variation, addition or deletion to the Order after it has been received by Skylighter Fireworks, Skylighter Fireworks will inform the Client of the effect of any such change, variation, addition or deletion on delivery times and the costs, fees and expenses and the Client will be responsible for these.
4. DELIVERY
4.1 Skylighter Fireworks shall use its reasonable endeavours to effect delivery and/or collection of the Equipment and/or New Material and, if applicable, installation of the Equipment at such time and place as shall be mutually agreed between the Client and Skylighter Fireworks. For the avoidance of doubt, time for delivery and/or provision of Services, Personnel, New Materials, Equipment or installation by Skylighter Fireworks shall not be of the essence unless specifically agreed in writing by a board director of Skylighter Fireworks. All delivery and installation dates are estimates only and should, if applicable, the delivery and/or installation process be held up by the Client or by its agents or sub-contractors, Skylighter Fireworks will not be held responsible for any delay in the completion of the overall project to which the Equipment and/or Services relate or any losses thereby incurred by the Client.
4.2 When the Equipment and/or New Material is collected from Skylighter Fireworks’s premises or is delivered by Skylighter Fireworks other than under the supervision of the Personnel, the Client or his agent or representative shall sign Skylighter Fireworks’s delivery note. Such signature shall be conclusive proof of the quantity, condition, date and time of delivery/receipt specified and also confirmation that the Equipment and/or New Material has been delivered / received to the quality and quantity as specified by Skylighter Fireworks in accordance with the Order or as otherwise agreed in writing.
4.3 The Client shall make provision to examine the Equipment and/or New Material immediately upon collection from or delivery by Skylighter Fireworks to it, its client, end user, agent or other representative and it is the responsibility of the Client in all cases to establish any loss or damage.
4.4 The Client shall notify Skylighter Fireworks in writing of any claim that the Equipment and/or New Material is damaged or not in accordance with the quality and quantity as specified by Skylighter Fireworks in accordance with the Order or as otherwise agreed in writing within 24 hours of delivery or collection and all communications must quote Skylighter Fireworks’s job reference number. The Equipment and its packaging must be preserved by the Client intact pending investigation by Skylighter Fireworks. If the Client fails to notify Skylighter Fireworks within this period, the Equipment and/or New Material shall be deemed to be of the quality and quantity as specified by Skylighter Fireworks in accordance with the Order or as otherwise agreed in writing and the Client shall pay Skylighter Fireworks accordingly.
4.5 Any claim for non-delivery of Equipment and/or New Material must be made in writing and received by Skylighter Fireworks within 14 days of the invoice date and any claim must quote Skylighter Fireworks’s invoice number.
4.6 Any claim for damage to the Equipment due to defective installation by Skylighter Fireworks must be communicated to Skylighter Fireworks in writing within three working days of installation and all communications must quote Skylighter Fireworks’s despatch note number. The Client should not repair or attempt to repair or request a third party to repair or attempt to repair the Equipment or the installation without the prior written consent of an authorised representative of Skylighter Fireworks.
4.7 Skylighter Fireworks shall be entitled to charge the Client for delivery and, as appropriate, installation costs, including delivery effected by an agent, carrier or supplier of Skylighter Fireworks and for subsistence costs of the Personnel effecting delivery and/or installation where the delivery/installation address is more than 100 kilometres from any of Skylighter Fireworks’s premises. Where the delivery/installation address is outside the Queensland, the Client shall be responsible for all delivery costs and for securing any and all customs clearances.
4.8 Where the Equipment and/or New Material is delivered in instalments and the Client either fails to accept any delivery or permit installation when due or defaults in making payment in respect of any instalment when due, Skylighter Fireworks may cancel any outstanding deliveries and, if applicable, installation and the Client shall compensate Skylighter Fireworks in full for any loss or expense arising from such cancellation.
5. TERMINATION
5.1 Any agreement by Skylighter Fireworks to supply Equipment, New Materials, Personnel and/or Services to the Client may be terminated immediately by Skylighter Fireworks giving written notice to the Client to that effect on the happening of any of the following events:
5.1.1 if the Client fails to pay any charges, fees or costs due to Skylighter Fireworks in accordance with these Conditions within seven days of the same having become due (whether demanded or not); or
5.1.2 if the Client fails to observe or perform any other of its obligations set out in theseConditions; or
5.1.3 if the Client shall make any arrangement with its creditors; or
5.1.4 if in the opinion of Skylighter Fireworks, the Client shall be unable to pay its debts as and when they fall due; or
5.1.5 if an order shall be made or an effective resolution passed for the winding up of the Client (other than for the purposes of a reconstruction or amalgamation); or
5.1.6 if an administrator, receiver or manager or administrative receiver shall be appointed of the whole or any part of the undertaking or assets of the Client, or
5.1.7 if, in the opinion of Skylighter Fireworks, the Client, its employees, authorised agents and/or subcontractor(s) are guilty of dishonesty, misconduct, incompetence or wilful neglect of their duties.
5.2 Termination shall not affect any other right or remedy of Skylighter Fireworks against the Client and shall not affect the right of Skylighter Fireworks to recover from the Client any charges, fees or costs or other monies due to Skylighter Fireworks at the date of such termination and shall not affect Skylighter Fireworks’s right to recover damages from the Client in respect of any breach of these Conditions.
6. CREDIT AND PAYMENT
6.1 The Client shall provide written notification to Skylighter Fireworks of any dispute in relation to such invoice within 3 days of the date of invoice, otherwise, the invoice shall be deemed to be acceptable to the Client.
6.2 All payments due to Skylighter Fireworks shall be in Australian Dollars unless otherwise agreed in writing between the parties. No payment shall be deemed to have been received until Skylighter Fireworks has received cleared funds. The Client shall be liable for any costs in relation to any currency conversion and exchange rates.
6.3 Skylighter Fireworks reserves the right to withdraw any credit facilities granted to the Client forthwith if payment terms are not observed.
6.4 In all cases where accounts are overdue for payment Skylighter Fireworks reserves the right either to refuse to supply goods and/or services or to cancel all existing agreements without prejudice to any of its other rights contained in these Conditions or to any existing claim.
6.5 Notwithstanding clause 6.4, Skylighter Fireworks shall be entitled to charge interest on all overdue payments at the rate of 10% p.a. from the due date for payment until actual payment, before and after judgment, calculated on a daily basis.
6.6 With the exception of clause 16.5 & 16.6 Skylighter Fireworks reserves the right in relation to all Orders with a total price in excess of $1,000 to require staged payments of the total price as follows:
6.7.1 60% payable not later than 14 days prior to commencement or delivery date.
6.7.2 40% payable 7 days after completion or delivery.
6.8 Skylighter Fireworks shall be entitled to a general lien on all Equipment and property owned by the Client in Skylighter Fireworks’s possession (although the Client may have paid for the same in full) in satisfaction of the whole or part as the case may be of any overdue charges, fees and costs due to Skylighter Fireworks in accordance with these Conditions. Skylighter Fireworks shall be entitled to offset any sum or sums owing to it from the Client against any sums owed to the Client by Skylighter Fireworks.
7. RELATIONSHIP OF THE PARTIES
7.1 Both Skylighter Fireworks and the Client are independent parties and the parties acknowledge that with the exception of clause 13.5.5, neither of them is an agent or partner of the other for any purpose and that each of them is entirely without authority to act on behalf of the other in any manner. Skylighter Fireworks shall not be responsible to third parties for any claim arising out of the activities of the Client and the Client shall indemnify Skylighter Fireworks against such claim.
8. LIABILITY
8.1 Other than in respect of death or personal injury arising from the negligence or fraudulent misrepresentation of Skylighter Fireworks, so far as is permissible in law, Skylighter Fireworks’s total liability (irrespective of how many claims are made and whatever the subject matter of such claims) to the Client in respect of the Order whether in contract, tort (including negligence or breach of statutory duty), misrepresentation or however otherwise arising, shall be limited to $2,000 or twice the amount of the charges, fees and costs payable by the Client in accordance with the Order (or any subsequent variation under the provisions of these Conditions), whichever is the lower.
8.2 The Client agrees and acknowledges that Skylighter Fireworks shall in no circumstances be liable (whether in contract, tort or otherwise) for any indirect, economic or consequential loss or damage (including any loss of profit or anticipated savings, loss of business or for any increased costs or expenses or otherwise) in connection with any act or omission by Skylighter Fireworks (or any third party supplier engaged by Skylighter Fireworks) including but not limited to any delay in delivery of the Equipment and/or New Materials and/or delay in performance or completion of the Services.
8.3 The Client places no reliance upon any representation or warranty made by Skylighter Fireworks, whether written or oral, other than any representation given in writing by a board director of Skylighter Fireworks.
8.4 The Client agrees to indemnify Skylighter Fireworks, any related company or any of its employees, agents, consultants or sub-contractors against all or any costs, claims, damages, demands and expenses arising as a result of any use of any material or documentation supplied by or on behalf of the Client infringing the intellectual property or any other similar rights of any other party, or arising as a result of any use of or reliance on any information or instructions issued by or on behalf of the Client.
10. THE CLIENT’S OBLIGATIONS
10.1 The Client shall be responsible for those obligations and/or assumptions which are expressed to be the responsibility of the Client in these Conditions, any Proposal or are otherwise agreed between the parties in writing and shall ensure that those obligations are carried out fully and promptly by it or on its behalf.
10.2 The Client shall at all times comply promptly with all Skylighter Fireworks’s reasonable requests for information or approval. Any delay in complying with such requests shall automatically entitle Skylighter Fireworks to extend any time schedule by an equivalent period.
10.3 The Client shall procure that any other contractor appointed by or on behalf of the Client in connection with the Order shall fully co-operate with Skylighter Fireworks and comply with any reasonable instructions issued by Skylighter Fireworks in connection with the Order. The Client shall be liable for the actions of such contractors and responsible for managing all such contractors in order to ensure compliance with the Conditions and all applicable rules and regulations and to ensure proper and timely performance of the Order.
10.4 In the event of the Client being responsible for the provision of any venue, auditorium or equipment relating to the Order, the Client shall be responsible for ensuring that all necessary and applicable laws, regulations and guidelines are fully complied with in relation to the same.
10.5 The Client agrees to be bound by the introduction fee payable to Skylighter Fireworks by the Client and set out below in respect of the transfer of employment of any employee from Skylighter Fireworks to the Client if such transfer occurs within a period of 12 months of the employees’ termination of employment with Skylighter Fireworks:10.5.1 15% of salaries below $35,000; or10.5.2 20% of salaries of $35,000 or above.
10.6 The client shall be responsible for the supply or costs of meals to staff and sub contractors of Skylighter Fireworks when said personal are performing services onsite for a period longer than six hours and an additional meal for every consequent six hours which follows.
10.7 The Client accepts that Skylighter Fireworks will follow the “Live Performance Award 2010” awards with regards to employees’ well being and accepts procedures set in place to by Skylighter Fireworks to conform to these regulations.
11. GENERAL
11.1 Any order or instruction required to be given to Skylighter Fireworks by the Client shall be given by him or his duly authorised agent in writing. If given orally, it shall be confirmed in writing to Skylighter Fireworks within three days. Skylighter Fireworks shall not be liable for the consequences of any inaccuracies or misunderstandings resulting from any order or instruction by the Client not received by Skylighter Fireworks in writing or so confirmed.
11.2 Skylighter Fireworks reserves the right to sub-contract the provision of all or any part of the Services and to assign or otherwise deal in any way whatsoever with Skylighter Fireworks’s interest in the Equipment and/or New Materials.
11.3 The invalidity, illegality or un-enforceability of any of the Conditions or any part of any Condition shall not affect the validity, legality or enforceability of the remainder.
11.4 Any forbearance or indulgence on the part of Skylighter Fireworks, its servants or agents to enforce fully, or at all, any of the Conditions shall not constitute a waiver of Skylighter Fireworks’s rights and shall be entirely without prejudice to those rights.
11.5 Any notice to be given to either party under these Conditions must be in writing and sent by courier or first class recorded delivery post to in the case of Skylighter Fireworks, 320 Hein Road, 4207Australia or any subsequently notified address and to the Client at its last notified address. Notices so served will be deemed to have been received 2 working days after the date of dispatch or posting.
11.6 Skylighter Fireworks shall not be liable for any delay or failure to perform its obligations if that delay or failure is caused by circumstances beyond its reasonable control including but not limited to acts of God, industrial dispute, civil disturbance, strikes or lock-outs or impossibility of or difficulty in obtaining source materials. Skylighter Fireworks shall be entitled to a reasonable extension of time for the performance of such obligations.
11.7 The Client shall not be entitled to assign or transfer the benefit or burden of this contract to any other party without the prior written consent of a board director of Skylighter Fireworks.
11.8 In the event of any dispute arising out of this agreement, the parties shall attempt to settle it by negotiation. To this end, they shall use their respective best endeavours to consult or negotiate with each other in good faith and, recognising their mutual interests, attempt to reach a just and equitable settlement satisfactory to both parties. Negotiations shall be conducted between the respective senior executives of the parties who have authority to settle disputes. If the parties do not reach such a settlement within a period of 21 days from the date when the dispute was brought to either party’s attention, the parties will attempt to settle it by mediation administered by an appropriate and accredited member of the AMA (Australian Mediation Association). To initiate mediation, a party must give written notice to the other parties to the dispute requesting mediation. The mediation shall be conducted in accordance with the AMA (Australian Mediation Association) Model Mediation Procedure current at the date of the referral which sets out the procedures to be adopted, the process of selection of the mediator and the costs involved, and which terms are deemed incorporate. The commencement of mediation will not prevent the parties commencing or continuing court proceedings.
11.9 This agreement shall be governed by Australian law and the Australian courts shall have exclusive jurisdiction save in respect of the enforcement of judgments where such jurisdiction shall be nonexclusive.
12.1 RISK & TITLE
12.1.1 Notwithstanding any delivery and subsequent installation, the legal and equitable title to and in the Equipment shall remain with Skylighter Fireworks (notwithstanding that the Equipment has become incorporated in or affixed to other equipment or products or has been finished electronically or otherwise) until Skylighter Fireworks has received cleared payment of the full purchase price plus GST for the Equipment and any interest due pursuant to Clause 6.5 and has received full payment for any other Equipment, New Materials and/or Services previously supplied.
12.1.2 Until cleared payment in full has been received by Skylighter Fireworks, the Client shall hold the Equipment in a fiduciary capacity for Skylighter Fireworks and to the extent as is reasonable in the circumstances the Client shall store the Equipment separately from any other assets andclearly marked as Skylighter Fireworks’s property and keep and retain them free of any charge, lien or encumbrance and Skylighter Fireworks shall be entitled to require the Client to deliver the Equipment or any of it to Skylighter Fireworks or as it shall direct on demand.
12.1.3 If the Client fails to deliver the Equipment on demand pursuant to clause 12.1.2, Skylighter Fireworks shall be entitled to enter the Client’s premises to collect the Equipment and the Client shall be responsible for all Skylighter Fireworks’s costs and expenses in connection with so doing. The Client hereby grants a licence to Skylighter Fireworks, its employees and agents to enter upon the Client’s premises and any other location where the Equipment is situated to remove the Equipment. This licence shall extend to detaching the Equipment from any property to which it has been attached or into which it has been incorporated or from any other products to which it has been attached.
12.1.4 The Client may sell the Equipment by way of bona fide sale in the ordinary course of business but may not otherwise deal with, sell, part with possession of or change the character of or convert or otherwise dispose of or handle any of the Equipment until title has passed to the Client, or if it does so then the sale of the Equipment will constitute a sale by the Client of Skylighter Fireworks’s property and accordingly the Client will hold the proceeds of that sale on trust for Skylighter Fireworks.
12.1.5 Upon delivery to the Client, the Client or its carrier, end user, agent or other representative shall sign for the Equipment. In the event that the Client (or any carrier, agent or representative) is not available to provide a signature, Skylighter Fireworks may retain the Equipment and reserves the right to charge the Client for any resultant delivery and / or storage charges in accordance with its standard rates. Upon delivery, the Equipment shall be at the Client’s risk and the Client undertakes to secure adequate insurance in respect of the Equipment and shall maintain such insurance for the period the Equipment is held at its risk. The Client shall provide a copy of such insurance to Skylighter Fireworks immediately upon request by Skylighter Fireworks.
13.4 TITLE & PROPERTY
Where Equipment is offered for rental or Personnel supplied by Skylighter Fireworks to the Client, the following conditions shall also apply:
13.1 Skylighter Fireworks shall deliver the Personnel and/or Equipment to and, where applicable, install the Equipment at the address specified in the Order or as otherwise agreed in writing by an authorised representative of Skylighter Fireworks. The Client shall notify Skylighter Fireworks in writing of the location or locations at which the Equipment and, if applicable, the Personnel are to be deployed, but after the commencement of the Term it shall be the responsibility of the Client to inform the Personnel of relevant locations and schedules.
13.2 The Client shall pay to Skylighter Fireworks the standard daily rate for the hire of the Equipment and/or the provision of the Personnel in accordance with the Order or as otherwise agreed in writing between an authorised representative of Skylighter Fireworks and the Client.
13.3 For the avoidance of doubt, the Client shall be liable for payment of hire charges during the Term or as may be otherwise agreed in writing between an authorised representative of Skylighter Fireworks and the Client. In addition to the hire charges for the Equipment and Personnel, the Client shall pay all delivery charges.
13.4.1 The Equipment shall remain at all times the property of Skylighter Fireworks and the Client shall have no right, title or interest therein, save that of a Client of Skylighter Fireworks under these Conditions.
13.4.2 The Client shall not sell or offer for sale, assign, mortgage, pledge, underlet, lend or otherwise deal with the Equipment or any part or parts thereof or deal with the Client’s interest under the Conditions which interest is personal to the Client and the Client will keep the Equipment in its own possession for its own use and will not allow any lien or other encumbrance to be created in respect of the same. The Client shall not instruct the Personnel to provide services or perform any act other than in relation to the provision of the Services as agreed in writing by an authorised representative of Skylighter Fireworks and shall not instruct the Personnel to carry out or perform any illegal act.
13.4.3 If the Client defaults in paying the charges, fees and costs pursuant to clause 6, 13.2 and 13.3, Skylighter Fireworks shall be entitled to enter the Client’s premises or such other premises where the Client is using or storing the Equipment to recover and remove such Equipment and to instruct the Personnel to cease provision of the Services. Such rights shall be without prejudice to the provisions of clauses 6.5 and 6.6.
13.4.4 The amount of the deposit (if any) as required by Skylighter Fireworks in accordance with the Order shall be returned to the Client without interest when the Equipment has been returned without damage to Skylighter Fireworks and all charges and other monies due to Skylighter Fireworks under these Conditions have been paid.
13.5 Loss, Damage, Theft & Insurance
13.5.1 Any loss, damage or theft to the Equipment during the Term including caused by non-familiarisation with or misuse of the same is the sole responsibility of the Client who will be charged with the cost of repair or full replacement value of the Equipment as the case may be. For the avoidance of doubt the hire charges shall continue to be payable for the Term or until such Equipment is repaired or replaced, whichever shall be the later.
13.5.2 The Client must not attempt to repair, adapt or alter the Equipment or request a third party to do so, without the prior written consent of an authorised representative of Skylighter Fireworks.
13.5.3 As far as is permissible in law, any injury or loss suffered by any of the Personnel during the Term shall be the sole responsibility of the Client who shall indemnify Skylighter Fireworks against all loss and damage which it may suffer as a result of such injury or loss. The Client shall be responsible for ensuring that any injured member of the Personnel shall be transported either to his home address or hospital, as the circumstances dictate, and shall compensate such person for loss of earnings arising out of such injury and for medical expenses incurred.
13.5.4 The Client shall at its own expense for the Term take out and maintain all risks insurance for the Equipment for its full replacement value and for the activities of the Personnel (including personal injury insurance) appropriate to the nature and location of the use to which the Equipment is to be put and/or the activities to be undertaken by the Personnel and its/their transportation to and from such location with a reputable insurer. If requested, such insurer shall be approved by Skylighter Fireworks as shall the level of cover, but any such approval shall not prevent Skylighter Fireworks or its Personnel from claiming from the Client any shortfall as regards such insurance in respect of the actual loss suffered.
13.5.5 The Client shall provide proof of such insurance immediately upon Skylighter Fireworks’s request. Ifthe Client cannot show Skylighter Fireworks that it has obtained insurance in accordance with clause
13.5.4, Skylighter Fireworks may (at its own discretion) arrange insurance on the Client’s behalf for the Term. The Client hereby appoints Skylighter Fireworks as its agent to arrange for this insurance and the Client shall promptly reimburse Skylighter Fireworks with an amount equal to the premiums plus a 10% arrangement fee immediately upon request.
13.6 Condition of Equipment
13.6.1 Skylighter Fireworks shall use its reasonable endeavours to ensure that all Equipment let on hire to the Client is sound and in good order and condition at the time of delivery to, or collection by, the Client but it shall be the responsibility of the Client to ensure that the Equipment is fully suitable in all respects for the purpose for which it is hired including type and condition and that it is and remains satisfactory for such purpose.
13.6.2 Skylighter Fireworks shall use its reasonable endeavours to ensure that all Personnel providing the Services shall be competent and capable of performing the Services and/or tasks notified to Skylighter Fireworks by the Client in the Order or as otherwise agreed in writing between the parties and, where appropriate, that such persons are properly qualified in the relevant skills. Skylighter Fireworks shall direct the Personnel to perform the Services in a skilful and diligent manner and to comply with the reasonable lawful instructions of the Client provided that the Client must satisfy himself that the Personnel to be supplied will be suitable for the provision of the Services.
13.6.3 The Client shall ensure that the Equipment is at all times used in a skilful and proper manner and in accordance with any instructions given to the Client by Skylighter Fireworks. The Client shall at its own expense at all times keep the Equipment in good condition and further shall take all precautions necessary to ensure its safety and security.
13.6.4 The Client will not open the outer case (if any) of the Equipment or of any item or part of it nor interfere in any way with the Equipment or its mechanism or any name plates or signs or serial numbers on it and will not expose the Equipment to the elements (in particular to salt water and spray) and will keep the Equipment protected in all respects.
13.6.5 The Client must not move the Equipment from Australia without the prior written consent of an authorised representative of Skylighter Fireworks.
13.6.6 If the Client wishes to remove the Equipment from Australia and has obtained Skylighter Fireworks’s permission in accordance with clause 13.6.5, the Client shall be responsible for obtaining all customs clearances for the export and re-import of the Equipment from and into Australia and for paying any taxes and duties resulting therefrom. The Client shall be responsible for any continuing charges relating to the hire of the Equipment, at full rates, should the Equipment be held by Customs or other competent authority beyond the end of the Term.
13.6.7 If during the Term any of the Personnel becomes unable to provide the Services by reason of illness or other circumstance, Skylighter Fireworks shall use its reasonable endeavours to locate a replacement for such person for the Client but shall be under no other liability to the Client in respect of such disability or non availability.
13.7 Return of Equipment
13.7.1 Unless otherwise agreed in writing between an authorised representative of Skylighter Fireworks and the Client it shall be the responsibility of the Client to return the Equipment to Skylighter Fireworks upon completion of the Term or any extension as agreed in writing by an authorised representative of Skylighter Fireworks for which it was hired or on termination of the hire for any other reason. If Skylighter Fireworks specifically agrees in writing to collect the Equipment, the Client shall remain fully responsible for the safety, protection, repair and condition (as aforesaid) of the Equipment until it is in the possession of Skylighter Fireworks.
13.7.2 If the Client is to return the Equipment to Skylighter Fireworks, the Client shall ensure that the Equipment is returned in the cases in which the Equipment is supplied by Skylighter Fireworks and the Client shall be responsible for all damage occasioned to the Equipment and/or the cases as a result of the Client’s failure to comply with this clause 13.7.2.
13.7.3 If the Client does not return the Equipment (or allow it to be collected) in accordance with the Order or as may be otherwise agreed in writing between the authorised representatives of Skylighter Fireworks and the Client, the Client shall be liable to pay to Skylighter Fireworks additional charges for the hire of the Equipment and/or the provision of the Personnel at Skylighter Fireworks’s standard daily rates (available on request).
13.8 For the avoidance of doubt, the parties agree that the Client shall not be the employer of the Personnel for the purposes of income tax or National Insurance contributions or otherwise during the Term.
14. CREATION, DUPLICATION AND/OR MANIPULATION OF MATERIAL
14.1 Where Skylighter Fireworks provides Services to the Client involving the creation, duplication or manipulation of material (including, but not limited to, the creation of graphical elements, tape duplication, video editing, standards conversion, encoding and compression, archive restoration), the following conditions shall also apply:
14.2 Skylighter Fireworks shall exercise due diligence in performing the Services for the Client.
14.3 The Client shall deliver the Source Material to Skylighter Fireworks and shall ensure that each item of Source Material clearly identifies the Client and the Content of the Source Material. In the case of Digital Delivery, the Client shall also ensure that the Source Material is correctly addressed and accompanied by the Order and that the communication is virus free.
14.4 In the event that Skylighter Fireworks considers that the Source Material is of a quality insufficient to allow it to perform the Services satisfactorily, Skylighter Fireworks shall promptly notify the Client and shall be under no obligation to perform the Services.
14.5 To the extent permissible by law, Skylighter Fireworks’s liability in respect of the provision of the Services shall be limited to the value of the Source Material. For the avoidance of doubt, Skylighter Fireworks shall not be liable for loss of Content from the Source Material and the Client should retain appropriate copies or insure against such potential loss.
14.6 Skylighter Fireworks shall take reasonable care of any and all materials belonging to the Client in its possession but shall not be liable for any financial loss suffered or incurred by the Client or any third party or any other liability arising in respect of the replacement of such materials.
14.7 The Client warrants that it is either the owner of the Content contained in the Source Material or alternatively is authorised, in all cases, by the owner of all intellectual property rights to produce New Material in accordance with the Order. It further warrants that the duplication and/or manipulation of the Content and the provision of the Services will not infringe the intellectual property rights or any other rights of any third party.
14.8 The Client shall fully indemnify and keep fully indemnified Skylighter Fireworks against all claims, loss, damages, expenses or proceedings suffered or incurred by Skylighter Fireworks in consequence of any breach of undertaking, representation, obligation or warranty or as a result of the Content or New Material infringing the rights of any third party.
14.9 In the event that Skylighter Fireworks believes that the Client is not entitled to give the warranties set out in clause 14.7, Skylighter Fireworks shall be entitled to postpone performance of the Services until such time as it considers that it has received sufficient supporting evidence of such entitlement.
14.10 Skylighter Fireworks shall use its reasonable endeavours to effect delivery of the New Material and return of the Source Material on the date set out in the Order but shall not be liable for non-delivery by a specific time or date or for any losses thereby incurred by the Client.
14.11 Risk & Title
14.11.1 Upon delivery to the Client, the Client or its carrier, end user, agent or other representative shall sign for the New Material or, in the case of Digital Delivery, acknowledge receipt of the New Material by e-mail to Skylighter Fireworks immediately upon request. In the event that the Client (or any carrier, agent or representative) is not available to provide a signature, Skylighter Fireworks may retain the New Material and reserves the right to charge the Client for any resultant delivery and/or storage charges in accordance with its standard rates.
14.11.2 Notwithstanding such delivery, the legal and equitable title to and in the New Material shall remain with Skylighter Fireworks (not withstanding that the New Materials have become incorporated in to other products) until Skylighter Fireworks has received cleared payment of all monies plus GST and any interest pursuant to Clause 6.5 due to it in accordance with the Order or as otherwise agreed in writing between the parties and with these Conditions and has received full cleared payment for any other New Materials, Personnel, Equipment and/or Services previously supplied to it by Skylighter Fireworks.
14.12 Any copyright and all other similar rights in all original work and materials produced by or on behalf of Skylighter Fireworks for the Client shall unless otherwise notified in writing to the Client by an authorised representative of Skylighter Fireworks be the property of Skylighter Fireworks (whether or not used by the Client) and unless otherwise specifically agreed by a board director of Skylighter Fireworks in writing the Client shall have no rights, title or interest in such property.
14.13 Any works and/or material referred to in clause 14.12 above shall be available for use by the Client only in respect of the activity set out in the Order and shall not be used by or on behalf of the Client for any other purpose other than with the written prior agreement of and on such terms as may be agreed by a board director of Skylighter Fireworks.
14.14 The Client shall not do or permit to be done any act or thing which may prejudice or infringe Skylighter Fireworks’s intellectual property rights and shall immediately notify Skylighter Fireworks of such potential or actual infringement.
14.15 Any works and/or material provided by Skylighter Fireworks to the Client which are subject to the rights of third parties shall be used by the Client strictly in accordance with the terms of any restriction notified by Skylighter Fireworks and upon the terms of any licence provided.
15. SERVICE OF EQUIPMENT
15.1 Where Services to the Equipment are undertaken by Skylighter Fireworks for or on behalf of the Client, the following conditions shall also apply:
15.2 Skylighter Fireworks shall exercise reasonable due care and skill in performing the Services for the Client.
15.3 Skylighter Fireworks shall maintain the Equipment described in the Proposal or as otherwise agreed in writing by an authorised representative of Skylighter Fireworks and the Client in good working order in accordance with these Conditions at the locations specified in the Proposal or as otherwise agreed in writing by an authorised representative of Skylighter Fireworks and the Client. Maintenance shall be undertaken on a call-out basis together with a number of planned maintenance visits as further specified in the Proposal or as otherwise agreed in writing by an authorised representative of Skylighter Fireworks and the Client.
15.4 Repairs to the Equipment will be carried out at the location(s) specified in the Proposal or as may be otherwise agreed in writing between an authorised representative of Skylighter Fireworks and the Client. Repairs to the Equipment at any other location will be carried out solely at Skylighter Fireworks’s discretion. Skylighter Fireworks shall also be entitled to take the Equipment away for repair if Skylighter Fireworks, in its sole discretion, deSkylighter Fireworks necessary.
15.5 During the Term and subject to the following provisions set out in these Conditions, Skylighter Fireworks shall replace all defective components of the Equipment at no charge, with the exception of audio and/or video heads, manufacturers’ recommended servicing, projector and/or monitor tubes, bulbs, cables and consumables to include the cost of fitting these itSkylighter Fireworks. Skylighter Fireworks shall be entitled to retain any defective component it has replaced.
15.6 Unless otherwise agreed in writing by an authorised representative of Skylighter Fireworks (and at such agreed additional charge), Skylighter Fireworks shall not be liable for the repair of the Equipment necessitated by any of the following circumstances:
15.6.1 damage caused by the negligent or malicious acts or omission of the Client, itsemployees, authorised agents and/or sub-contractors; or 15.6.2 an occurrence of any of the circumstances set out in clause 15.7;
15.6.3 damage caused by computer virus; or
15.6.4 damage caused by exposure to excessive electrical current; or
15.6.5 damage caused as a result of any use of the Equipment other than in accordance with any manuals or instruction issued by the manufacturer and/or Skylighter Fireworks; or
15.6.6 damage caused as a result of any other circumstances caused beyond Skylighter Fireworks’s control, including the effects of repairs and/or adjustments made by any person other than Skylighter Fireworks.
15.7 Any charges, fees and/or costs set out in the Proposal or as may be otherwise agreed in writing between an authorised representative of Skylighter Fireworks and the Client will, unless otherwise stated, cover all costs associated with the maintenance of the Equipment, including, but not limited to, labour, transport, parts (with the exception of the replacement of parts in accordance with clause 15.5), administration and telephone charges. Skylighter Fireworks shall be entitled to make a reasonable charge for any expenses incurred as a result of any call-outs by the Client that Skylighter Fireworks may, in its absolute discretion, deem spurious. Such call-outs shall include, but not be limited to:
15.7.1 any incorrect operation of the Equipment by the Client or any other third party causing an apparent fault; or
15.7.2 the Equipment or any part thereof being in use and therefore not available for any pre-confirmed service visit; or
15.7.3 any misuse or mishandling of the Equipment.
15.8 The Client shall provide the Personnel with safe and free access to all materials and facilities incidental thereto at all reasonable hours to all Equipment so that they may carry out their duties and shall indemnify Skylighter Fireworks in respect of any loss or damage of whatsoever nature suffered by Skylighter Fireworks, its Personnel or any of its agents, sub-contractors or employees in the performance of the Services due to a breach of any of its obligations hereunder and/or the negligence or misconduct of the Client, its employees, agents and/or sub-contractors. The Client will be solely responsible for complying with and bringing any special rules and/or hazards or health and safety issues relating to any premises on which the Equipment is located to Skylighter Fireworks’s attention.
15.9 During the Term, Skylighter Fireworks shall undertake any necessary work or repairs, subject to the availability of spare parts from the Equipment manufacturers. Skylighter Fireworks will send qualified Personnel to attend to faults in the Equipment at the address specified in the Proposal or as otherwise agreed in writing between an authorised representative of Skylighter Fireworks and the Client. Subject to agreement by the Client to pay an additional charge, Skylighter Fireworks may arrange a visit outside any service hours specified in the Proposal. Skylighter Fireworks will, upon written request from the Client, supply details of response times, attendance and work undertaken.
15.10 The Services shall exclude the repair, modification and/or correction of any fault that cannot be attributed to a general mechanical, electronic, electrical and/or software breakdown. Skylighter Fireworks shall use its reasonable endeavours to liaise on behalf of the Client with the Equipment manufacturers to rectify any design fault. Skylighter Fireworks shall notify the Client of any design fault that becomes apparent to Skylighter Fireworks, and will inform the Client of any resultant costs necessary to rectify such fault prior to any repair, modification or correction of the Equipment. For the avoidance of doubt, Skylighter Fireworks shall not be liable for any loss or damage caused to the Equipment, or to any other equipment or property of the Client due to any design, operation and/or software fault of the Equipment.
15.11 Skylighter Fireworks shall not be required to carry out any major overhauls and/or rebuilding of any of the Equipment. Skylighter Fireworks shall not be responsible for renewing, wiring or re-positioning of the Equipment. Skylighter Fireworks shall, at its sole discretion, elect not to repair any part of the Equipment if, in the opinion of Skylighter Fireworks, such repair is not economically viable or non-repairable as a direct result of an obsolescence or unavailability of spares. It is agreed that Skylighter Fireworks shall not be deemed to have acted unreasonably in doing so, and shall inform the Client of its reasons in writing if requested by the Client to do so.
15.12 Any charges, fees or costs relating to the Services shall be subject to an annual review by Skylighter Fireworks, and Skylighter Fireworks will give the Client one month’s prior written notice of any annual price increase.
15.13 Any amendment to the Proposal by the Client, including, but not limited to, any modification to the number of specified planned maintenance visits may result in a revision of charges which the Client agrees to be bound by for the duration of the Term. Skylighter Fireworks will inform the Client of the effect of anysuch amendment within 30 days of receiving notice of amendment from the Client.
15.14 Any agreement for the provision of the Services is entered into by Skylighter Fireworks on the understanding that all Equipment has been well maintained and is in good working order. Skylighter Fireworks shall be entitled to charge an additional fee to repair, upgrade or re-configure any Equipment that, in the opinion of Skylighter Fireworks, requires a greater degree of maintenance than would normally be necessary with similar equipment of the same age. Skylighter Fireworks will notify the Client of any such costs arising under this clause 15.13 within 30 days of such decision.
15.15 It is the responsibility of the Client to confirm to Skylighter Fireworks whether they wish to extend the Term by giving written notice of such intention at least ninety days prior to the date of its expiry. In the absence of such notice, the Term shall continue until terminated by either party giving ninety days notice of termination in writing.
16. PRODUCTION & EVENT SERVICES
16.1 Where Skylighter Fireworks provides production services in areas including but not limited to video, interactive media, conferences, exhibitions and other live events and related communications consultancy the following conditions shall also apply:
16.2 In all cases, Skylighter Fireworks shall supply a Proposal to the Client setting out details of the Services to be supplied, including, but not limited to, delivery dates and the charges, fees or costs (some of which may be stated to be estimates) relating to them.
16.3 Acceptance of the Proposal by the Client shall be deemed to be an Order.
16.4 Any subsequent amendment to the Proposal must be agreed in writing between the authorised representatives of Skylighter Fireworks and the Client. Skylighter Fireworks will notify the Client of any amendment to the Proposal as a result of late delivery of any materials by the Client to Skylighter Fireworks in relation to the Services, and the Client agrees to be bound by these amendments.
16.5 Credit may be supplied to a client once the Credit Application form has been completed and a confirmation of credit terms are returned to the client.
16.6 With the exception of clause 16.5 or unless specifically agreed in writing by an authorised representative of Skylighter Fireworks, the Client agrees to the following staged payments of the total charges, fees or costs detailed in the Proposal as follows:
16.6.1 10% payable on acceptance of the Order by Skylighter Fireworks;
16.6.2 90% payable prior to commencement of the Services, as agreed in the Proposal;
16.7 If Skylighter Fireworks agrees to accept cancellation of an Order, the Client agrees to be liable for a proportion of the total charges, fees or costs set out in the Order, determined by the length of notice of cancellation provided by the Client in writing as follows; 31-60 days – 15% of the total Order value;
14-7 days – 25% of the total Order value;
3-1 days – 50% of the total Order value.
24 hours 100% of the total Order value.
16.8 Invoices issued by Skylighter Fireworks pursuant to clause 16.6 shall be payable in accordance with clause 6 of these Conditions, and time for payment shall be of the essence. The parties agree that this amount constitutes a realistic pre-estimate of Skylighter Fireworks’s loss and is not intended to be a penalty. The payment of such cancellation fee shall not in any way prejudice Skylighter Fireworks’s right to recover from the Client full compensation for any loss or expense arising from such cancellation or variation.
16.9 The Client shall confirm a verbal order or instruction given to Skylighter Fireworks pursuant to clause 11.1 in writing within three days. The Client’s verbal order or written approval of, including but not limited to, the script, storyboards, visuals, designs, timetables and/or estimates shall give Skylighter Fireworks authority to purchase, enter into production contracts, or enter into agreements/arrangements for any other facilities or services in connection with the Order.
16.10 Where Skylighter Fireworks provides Services to the Client involving the creation, duplication and/or manipulation of the material, Skylighter Fireworks shall retain any material that has been supplied by and/or produced by Skylighter Fireworks for the Client in respect of the Services and notify the Client of the need to collect such materials. If such materials have not been collected for a period of two years after such notification, then Skylighter Fireworks shall be entitled at its sole discretion to destroy such materials.
16.11 Upon receipt of written instruction from the Client, Skylighter Fireworks may agree to retain the material including any New Material in a fiduciary capacity after the period specified in clause 16.9. Skylighter Fireworks will advise the Client of any cost payable for such a service, including, but not limited to, the cost of repairs, alteration and/or renovation to stored itSkylighter Fireworks. Such charges should be settled within 30 days from invoice date pursuant to clause 6.
16.12 Any copyright and all other similar rights in all original work and materials produced by or on behalf of Skylighter Fireworks for the Client shall unless otherwise notified in writing to the Client by an authorised representative of Skylighter Fireworks be the property of Skylighter Fireworks (whether or not used by the Client) and unless otherwise specifically agreed by a board director of Skylighter Fireworks in writing the Client shall have no rights, title or interest in such property.
16.13 Any works and/or material referred to in clause 16.11 above shall be available for use by the Client only in respect of the activity set out in the Order and shall not be used by or on behalf of the Client for any other purpose other than with the written prior agreement of and on such terms as may be agreed by a board director of Skylighter Fireworks.
16.14 The Client shall not do or permit to be done any act or thing which may prejudice or infringe Skylighter Fireworks’s intellectual property rights and shall immediately notify Skylighter Fireworks of such potential or actual infringement.
16.15 Any works and/or material provided by Skylighter Fireworks to the Client which are subject to the rights of third parties shall be used by the Client strictly in accordance with the terms of any restriction notified by Skylighter Fireworks and upon the terms of any licence provided.