EQUIPMENT HIRE AGREEMENT

SCHEDULE

EXECUTION

Signed by Mad Cow Entertainment ATF The Trustee for Olman Family Trust (ABN 61 278 306 935) in the presence of:

Note: Use the below where the party is an individual.

Signed by [insert name]:

Note: Use the below where the other party is an Australian company.

Executed by [insert company name] (ACN [insert]) in accordance with section 126 of the Corporations Act 2001 (Cth), by its duly authorised agent:

Note: Use the below where the other party is a sole trader.

Signed by [insert name] T/A [insert business name] (ABN [insert]):

TERMS AND CONDITIONS

This Agreement is entered into between us and you, together the Parties and each a Party.

1. Services

1.1 In consideration of your payment of the Hire Fees, we will provide the Services in accordance with this Agreement, whether ourselves or through our Personnel.

1.2 If this Agreement expresses a time within which the Services are to be supplied, we will use reasonable endeavours to provide the Services by such time, but you agree that such time is an estimate only.

1.3 All variations to the Services must be agreed in writing between the Parties and will be priced as reasonably agreed between the Parties. If we consider that any instructions or directions from you constitute a variation to the scope of the Services or our obligations under this Agreement, then we will not be obliged to comply with such instructions or directions unless agreed in accordance with this clause.

1.4 The minimum hire period for any Order is 3 hours. Additional hours may be purchased in accordance with the Hire Fees set out in the relevant Order or on our website.

Delivery of the Equipment

1.5 We are responsible for delivering and setting up the Equipment at the agreed delivery location. Delivery and setup costs are included in the Hire Fees, except where an additional delivery fee applies due to the distance of the delivery location, in which case such fee will be set out in the Order. We will use reasonable endeavours to deliver the Equipment by the time agreed between the Parties. Risk in the Equipment will pass to you once we have delivered and set up the Equipment to the agreed delivery location. Where we have provided Personnel to operate the Equipment and loss or damage is caused to the Equipment as a result of our Personnel, risk will remain with us. Where Equipment is hired overnight and our Personnel are not present, risk in the Equipment will pass to you from the time our Personnel depart until we return.

Operating the Equipment

1.6 We will be responsible for the cost of operating the Equipment, including the cost of any consumables (such as fuel or registrations).

1.7 We will be responsible for the cost of maintaining and servicing the Equipment. You will be responsible for the costs of any repairs to, or replacement of, the Equipment (including the cost of replacement parts), required because of your improper or negligent use of the Equipment, which will be a debt due and immediately payable to us.

1.8 We will take out and maintain, for the duration of the Term, insurance sufficient to cover the full replacement value of the Equipment in the event of loss or damage.

1.9 You agree to (and to the extent applicable, ensure that your Personnel and Participants agree to):

1. comply with this Agreement, all applicable Laws, our reasonable requests, and any operating instructions for the Equipment;

2. contact us immediately if there is any damage to or defects in the Equipment;

3. where the Equipment is provided on a Dry Hire basis (including as part of an Overnight Hire), notify us immediately if the Equipment is lost, stolen or vandalised, and take all reasonable steps to prevent any further loss or damage;

4. ensure that any Participant using the Equipment follows our safety rules and operating instructions for the relevant Equipment, and does not use the Equipment in an unsafe, improper or negligent manner;

5. ensure that you obtain consent from any Participant (or, where a participant is a minor, their parent or legal guardian) acknowledging the risks associated with the Equipment and agreeing to comply with all safety and operating instructions prior to use;

6. not allow anyone to interfere or otherwise tamper with the Equipment;

7. not allow any third party to conduct repairs or maintenance on the Equipment without our prior consent;

8. pay us the cost of the Equipment (as a debt due and immediately payable) where loss, theft, damage or destruction of the Equipment occurs;

9. provide us (and our Personnel) with access to your premises (and its facilities) as is reasonably necessary for us to provide the Services, free from harm or risk to health or safety at the times and on the dates reasonably requested by us or as agreed between the Parties;

10. ensure that the site at which the Equipment is to be delivered and operated meets our site requirements, including adequate ground conditions, overhead clearances, and anchorage points, as notified to you prior to the hire;

11. notify us of any site conditions or weather concerns as soon as reasonably practicable, and cooperate with us in assessing whether it is safe to proceed with the hire;

12. protect and maintain the Equipment in the Original Condition;

13. keep the Equipment in your custody and control at all times, and not sublease, rent, sell or otherwise transfer the Equipment to any other person;

14. where the Equipment is hired overnight:

    1. ensure all Participants have vacated the Equipment before deflating;

    2. deflate the Equipment after use and turn off the power supply to the Equipment;

    3. not remove, adjust or interfere with the ground anchoring system;

    4. ensure that the Equipment is kept clear of any objects or obstructions, including anything that could damage or destroy it, at all times;

    5. not attempt to reinflate or reinstall the Equipment; and

    6. not move the Equipment from the delivery location or use, or permit the use of, the Equipment at any other location or for any other event.

15. where the delivery location is not your premises:

    1. warrant that you have the right to use the delivery location for the purposes of the hire, and that our attendance and operation of the Equipment at that location will not breach any third party rights, venue terms and conditions, council permits or applicable Laws;

    2. be responsible for obtaining any necessary permits, approvals or consents required for the hire at the delivery location prior to the date of the hire; and

    3. acknowledge that if we are unable to proceed with the hire due to your failure to comply with this clause, the full Hire Fees will remain due and payable to us.

Returning the Equipment

1.10 You must ensure that the Equipment is available for collection by us in its Original Condition at the time agreed between the Parties, or if no time is specified, upon termination or expiry of this Agreement. You must provide us with reasonable access to your premises to collect the Equipment.

1.11 You agree that if the Equipment is not made available for our collection in its Original Condition at the agreed time, then we may charge you a Late Return Fee for each hour or part thereof that collection is delayed beyond the agreed collection time.

1.12 You agree that the Late Return Fee is a genuine pre-estimate of loss suffered or incurred by us as a result of your delay in making the Equipment available for collection in its Original Condition.

Cancellation

1.13 Either Party may cancel an Order in accordance with the following terms:

1. by notifying the other Party in writing by 5:00 pm on the day before the scheduled hire date (Cancellation Deadline);

2. if either Party cancels an Order before the Cancellation Deadline, we will provide you with a full refund of the Hire Fees paid in respect of that Order;

3. if you request that we proceed with a hire after we have notified you that we consider the weather or site conditions to be unsafe, the full Hire Fees will remain due and payable regardless of whether we are able to complete the Services upon arrival;

4. if you cancel an Order after the Cancellation Deadline, the full Hire Fees will remain due and payable by you; and

5. we reserve the right to refuse to commence, or cease, providing the Services upon arrival at the delivery location if, in our reasonable opinion, the site conditions are unsafe, in which case the full Hire Fees will remain due and payable by you where you have been given prior notice of our safety concerns in accordance with clause 1.13(c).

Title, Risk and Security

1.14 Title in any Equipment leased to you will at all times remain with us, and you:

1.15 where the Equipment is provided on a Dry Hire basis, take the Equipment as a bare bailee only;

1. where the Equipment is provided on a Wet Hire basis, acknowledge that our Personnel will retain operational control of the Equipment at all times whilst on site;

1.16 irrevocably appoint us to be your attorney to do all acts and things necessary to ensure our retention of title to the Equipment, including the registration of any security interest in our favour with respect to the Equipment; and

1.17 must not allow any other person to have or acquire any security interest in the Equipment without our prior written consent.

1.18 To the extent that our interest in the hire of the Equipment is a ‘security interest’ for the purposes of the Personal Property Securities Act 2009 (Cth) (PPSA):

1.19 we may register any actual or likely security interest, and you must take all steps that we consider necessary or desirable to ensure our security interest in the Equipment and any proceeds of its sale is enforceable, and to perfect and ensure our priority over all other security interests;

1.20 if we register our security interest in accordance with the PPSA, it is without prejudice to any other rights that we have at law;

1.21 you acknowledge and agree that we have not authorised any disposal or dealing of the Equipment, and our security interest attaches to any proceeds of sale of the Equipment;

1.22 you waive your right to receive any notice (including notice of a verification statement) that is required by the PPSA, including but not limited to notices under sections 95, 118, 121, 130, 132, 135 or 157;

1.23 you agree that sections 95, 96, 121(4), 125, 129(2), 129(3), 130, 132(3)(d), 132(4), 142 and 143 of the PPSA do not apply to the enforcement of our security interest; and

1.24 you must not disclose any information of the kind referred to in section 275 of the PPSA, to the extent permitted under that section.

2. Orders

2.1 During the Term, you may request us to supply the Services by:

2.2 completing a booking through our website in accordance with our booking process as set out on our website; or

1. notifying us in writing or by any other process we specify,

(together, an Order Request)

2.3 If we accept the Order Request:

2.4 where the Order Request was made through our website, we will issue an automated booking confirmation to your nominated email address, at which point it will become a binding Order; or

2.5 where the Order Request was made in writing or by another process specified by us, we will issue confirmation of your Order Request and it will become a binding Order.

2.6 Each Order is subject to, and will be governed by, this Agreement and any other conditions expressly set out in the Order. To the extent of any ambiguity or discrepancy between an Order and this Agreement, the terms of the Agreement will prevail.

3. Hire Fees and Payment

3.1 In consideration for us providing the Services, you agree to pay all amounts due under this Agreement in accordance with the Payment Terms.

3.2 Where the Equipment is hired overnight, you agree to pay us the Overnight Hire Fee in addition to the Hire Fees. An additional delivery fee may also apply where the delivery location is beyond a reasonable distance from our premises, as set out in the relevant Order.

3.3 We will not commence setup of the Equipment until payment of the Hire Fees has been received in full, except where we have agreed alternative Payment Terms with you in writing (for example, where you are a school or government body).

3.4 If any payment has not been made in accordance with the Payment Terms, we may (at our absolute discretion, and without prejudice to any of our rights or remedies under this Agreement or at Law):

1. refuse to commence or cease providing the Services, and recover, as a debt due and immediately payable from you, our reasonable additional costs of doing so (including all recovery costs);

2. charge interest at a rate equal to the Reserve Bank of Australia’s cash rate, from time to time, plus 2% per annum, calculated daily and compounding monthly, on any such amounts unpaid after the relevant due date in accordance with the Payment Terms; and/or

3. enter any premises where the Equipment is stored or held, for the purpose of retrieving and taking possession of the Equipment, and you agree to provide any access, items and consents required to enable us to do so.

3.5 When applicable, GST payable will be clearly shown on our invoices. You agree to pay us an amount equivalent to the GST imposed on these charges. “GST” has the meaning given in A New Tax System (Goods and Services Tax) Act 1999 (Cth).

4. Confidential Information

4.1 Subject to clause 4.2, each Party must (and must ensure that its Personnel and third party service providers) keep confidential, and not use (except to perform its obligations under this Agreement) or permit any unauthorised use of, information provided by the other Party, other than for the purposes of performing its obligations under this Agreement.

4.2 Clause 4.1 does not apply where the disclosure is required by Law, the Confidential Information is in the public domain (other than through breach of this Agreement), or the disclosure is to a professional adviser in order to obtain advice in relation to matters arising in connection with this Agreement and provided that the disclosing Party ensures the adviser complies with the terms of clause 4.1.

4.3 This clause 4 will survive the termination of this Agreement.

5. Australian Consumer Law

5.1 Certain legislation, including the Australian Consumer Law, and similar consumer protection laws and regulations, may confer you with rights, warranties, guarantees and remedies relating to the supply of the Services by us to you which cannot be excluded, restricted or modified (Consumer Law Rights). To the extent that you maintain Consumer Law Rights at Law, nothing in this Agreement excludes those Consumer Law Rights.

5.2 Subject to your Consumer Law Rights, we provide all material, work and services (including the Services) to you without conditions or warranties of any kind, implied or otherwise, whether in statute, at Law or on any other basis, except where expressly set out in this Agreement.

5.3 This clause 5 will survive the termination or expiry of this Agreement.

6. Liability

6.1 To the maximum extent permitted by Law, you are liable for and you agree to indemnify us and hold us harmless in respect of any Liability which we may suffer, incur or are otherwise liable for as a result of, or in connection with:

6.2 any property loss or damage, death or personal injury, arising from or in connection with your improper or negligent use of the Equipment or any failure by you to ensure that your Personnel and Participants comply with our safety rules and operating instructions for the relevant Equipment;

6.3 any loss (including theft) of, or damage to, the Equipment when you are responsible for the risk in the Equipment;

6.4 any failure to make the Equipment available for collection in its Original Condition in accordance with clause 1.10; and

6.5 all Liabilities suffered or incurred by us in repossessing or recovering the Equipment in accordance with this Agreement.

6.6 Despite anything to the contrary but subject to your Consumer Law Rights, to the maximum extent permitted by Law:

1. neither Party will be liable for Consequential Loss;

2. a Party’s liability for any Liability under this Agreement will be reduced proportionately to the extent the relevant Liability was caused or contributed to by the acts or omissions of the other Party (or any of its Personnel), including any failure by that other Party to mitigate its loss; and

3. (where our Services are not ordinarily acquired for personal, domestic or household use or consumption) in respect of any failure by us to comply with relevant Consumer Law Rights, our Liability is limited (at our discretion) to supplying the Services again or paying the cost of having the Services supplied again; and

4. our aggregate liability for any Liability arising from or in connection with this Agreement will be limited to the Hire Fees paid by you to us in respect of the supply of the relevant Services to which the Liability relates.

6.7 This clause 6 will survive the termination or expiry of this Agreement.

7. Term and Termination

7.1 This Agreement will operate for the Term.

7.2 This Agreement will terminate immediately upon written notice by a Party (Non-Defaulting Party) if the other Party (Defaulting Party) breaches a material term of this Agreement and that breach has not been remedied within 10 Business Days of the Defaulting Party being notified of the breach by the Non-Defaulting Party. If this Agreement is terminated by us in accordance with this clause, then any current Order will also terminate on the date of termination and we will immediately cease providing the Services.

7.3 Upon expiry or termination of this Agreement:

1. without limiting your Consumer Law Rights, any payments made by you to us for Services already performed are not refundable to you;

2. you are to pay for all Services provided prior to termination, including Services which have been provided and have not yet been invoiced to you, and all other amounts due and payable under this Agreement;

3. you must make the Equipment available for our collection, and grant us a right of access to your premises where the Equipment is located for this purpose;

4. where termination is by us pursuant to clause 7.2, you also agree to pay us our additional costs, reasonably incurred, and which arise directly from such termination (including recovery fees); and

5. we may retain your documents and information (including copies) to the extent required by Law or pursuant to any information technology back-up procedure, provided that we handle your information in accordance with clause 4.

7.4 Termination of this Agreement will not affect any rights or liabilities that a Party has accrued under it.

7.5 This clause 7 will survive the termination or expiry of this Agreement.

8. General

8.1 Amendment: Subject to clause 1.3, this Agreement may only be amended by written instrument executed by the Parties.

8.2 Assignment: Subject to clauses 8.3 and 8.10, a Party must not assign, novate or deal with the whole or any part of its rights or obligations under this Agreement without the prior written consent of the other Party (such consent is not to be unreasonably withheld).

8.3 Assignment of Debt: You agree that we may assign or transfer any debt owed by you to us, arising under or in connection with this Agreement, to a debt collector, debt collection agency, or other third party.

8.4 Disputes: A Party may not commence court proceedings relating to any dispute arising from, or in connection with, this Agreement (Dispute) without first meeting a representative of the other Party within 10 Business Days of notifying that other Party of the Dispute. If the Parties cannot resolve the Dispute at that meeting, either Party may refer the Dispute to mediation administered by the Australian Disputes Centre.

8.5 Force Majeure: Neither Party will be liable for any delay or failure to perform their respective obligations under this Agreement if such delay or failure is caused or contributed to by a Force Majeure Event, provided that the Party seeking to rely on the benefit of this clause:

8.6 as soon as reasonably practical, notifies the other Party in writing details of the Force Majeure Event, and the extent to which it is unable to perform its obligations; and

8.7 uses reasonable endeavours to minimise the duration and adverse consequences of the Force Majeure Event.

Where the Force Majeure Event prevents a Party from performing a material obligation under this Agreement for a period in excess of 60 days, then the other Party may by notice terminate this Agreement, which will be effective immediately, unless otherwise stated in the notice. This clause will not apply to a Party’s obligation to pay any amount that is due and payable to the other Party under this Agreement.

8.8 Governing Law: This Agreement is governed by the laws of Western Australia. Each Party irrevocably and unconditionally submits to the exclusive jurisdiction of the courts operating in Western Australia and any courts entitled to hear appeals from those courts and waives any right to object to proceedings being brought in those courts.

8.9 Intellectual Property: Nothing in this Agreement constitutes an assignment or transfer of a Party’s intellectual property rights to the other Party.

8.10 Notices: Any notice given under this Agreement must be in writing addressed to the addresses set out in this Agreement, or the relevant address last notified by the recipient to the Parties in accordance with this clause. Any notice may be sent by standard post or email, and will be deemed to have been served on the expiry of 48 hours in the case of post, or at the time of transmission in the case of transmission by email.

8.11 Relationship of Parties: This Agreement is not intended to create a partnership, joint venture, employment or agency relationship between the Parties.

8.12 Subcontracting: We may subcontract the provision of any part of the Services without your prior written consent. We agree that any subcontracting does not discharge us from any liability under this Agreement and that we are liable for the acts and omissions of our subcontractor.

9. Definitions

In this Agreement, unless the context otherwise requires, capitalised terms have the meanings given to them in the Schedule, and:

Australian Consumer Law means the Australian consumer laws set out in Schedule 2 of the Competition and Consumer Act 2010 (Cth), as amended, from time to time.

Agreement means these terms and conditions and any agreed Order issued under it and any documents attached to, or referred to in, each of them.

Business Day means a day on which banks are open for general banking business in Perth, Western Australia, excluding Saturdays, Sundays and public holidays.

Consequential Loss includes any consequential loss, special or indirect loss, real or anticipated loss of profit, loss of benefit, loss of revenue, loss of business, loss of goodwill, loss of opportunity, loss of savings, loss of reputation, loss of use and/or loss or corruption of data, whether under statute, contract, equity, tort (including negligence), indemnity or otherwise. However, your obligation to pay us the Hire Fees and any other amounts payable under this Agreement will not constitute “Consequential Loss”.

Consumer Law Rights has the meaning given in clause 5.1.

Dry Hire means the hire of Equipment where we deliver and set up the Equipment at the delivery location but do not provide Personnel to operate the Equipment during the hire period.

Equipment means any equipment that we lease to you as part of the Services.

Force Majeure Event means any event or circumstance which is beyond a Party’s reasonable control including but not limited to, acts of God including fire, hurricane, typhoon, earthquake, landslide, tsunami, mudslide or other catastrophic natural disaster, civil riot, civil rebellion, revolution, terrorism, insurrection, militarily usurped power, act of sabotage, act of a public enemy, war (whether declared or not) or other like hostilities, ionising radiation, contamination by radioactivity, nuclear, chemical or biological contamination, any widespread illness, quarantine or government sanctioned ordinance or shutdown, pandemic (including COVID-19 and any variations or mutations to this disease or illness) or epidemic.

Hire Fees means the fees set out in the Schedule or any Order, as adjusted in accordance with this Agreement.

Late Return Fee means the fee charged to you in accordance with clause 1.11.

Law means all applicable laws, regulations, codes, guidelines, policies, protocols, consents, approvals, permits and licences, and any requirements or directions given by any government or similar authority with the power to bind or impose obligations on the relevant Party in connection with this Agreement or the supply of the Services.

Liability means any expense, cost, liability, loss, damage, claim, notice, entitlement, investigation, demand, proceeding or judgment (whether under statute, contract, equity, tort (including negligence), indemnity or otherwise), howsoever arising, whether direct or indirect and/or whether present, unascertained, future or contingent and whether involving a third party or a Party to this Agreement or otherwise.

Order means an order for the supply of Services, placed in accordance with clause 2.

Original Condition means the Equipment being clean and free from damage or defect, and in the same condition in which we provided the Equipment to you, subject to fair wear and tear.

Overnight Hire means a hire of Equipment where the Equipment remains at the delivery location overnight and our Personnel are not present for the duration of that overnight period.

Overnight Hire Fee means the additional fee payable by you where the Equipment is hired overnight, as set out in the relevant Order.

Participants means any individuals who use or interact with the Equipment at the delivery location, whether or not they are a party to this Agreement.

Personnel means, in respect of a Party, any of its employees, consultants, suppliers, subcontractors or agents, but in respect of you, does not include us.

Schedule means the schedule to this Agreement.

Services means the services set out in the Schedule or any Order, as adjusted in accordance with this Agreement.

Wet Hire means the hire of Equipment where we deliver, set up and provide Personnel to operate the Equipment at the delivery location during the hire period.