This document serves as a Lease Agreement between The Customer (which includes its employees, servants and agents) whom leases from an agent, distributor or franchise (“LITE”) of LITE PTY LTD the Equipment as referred to in the Rental Quote Agreement. The Equipment includes all items, articles, accessories, documents (including operating manuals), software and things supplied to the premises of the Customer.
The Customer agrees to the terms set out in this lease Agreement and any terms and conditions contained in the Rental Quote Agreement (together the “Rental Documents”) prior to the commencement of the lease. The Rental Documents apply despite any other terms and conditions that are proffered by the Customer.
If the Rental Documents are not consented to either verbally or via written confirmation, the Customer acceptance of the Equipment on their premises, is agreement to these conditions which are made available at all times on www.thelite.com.au
1 CASUAL RENTAL
1.1 The rental period commences on the rent start date shown on the Rental Quote and continues until it terminates at the time also specified on the agreed Rental Quote. This period is the nominated lease period (“Term”) and stipulated on the Rental Quote Agreement with the agreed fee.
1.2 When the Equipment is not returned at the end of the Term, then rental charges will continue to accrue at the same daily rate set out on www.thelite.com.au until the business day on which the Equipment is returned complete with all the accessories and undamaged.
1.3 The Term is the minimum period for which charges at the daily rate set out in the Rental Agreement apply.
1.4 Where the Equipment or accessories are lost/stolen or equipment or accessories are damaged due to the negligence of The Customer, a replacement or repair fee for the equipment &/or accessorie(s) is owed to LITE by The Customer and is due within 7 days of the end of the lease Term. The damaged Equipment or accessories to be replaced or repaired to serviceable condition are to be returned to LITE at the contracted end of the lease Term.
1.5 300 programmatic SMS messages per day are included in an Australian lease. If additional programmatic SMS messages are sent, they will be included in the post campaign invoice at a fixed cost of AU$10 per 100 SMS bundle.
1.6 The Rental Quote shows indicative costs for lease. The Invoice sent post lease is the final due amount.
1.7 Delivery and transportation including drop off, set up and pick up will be charged as specified in the Rental Quote Agreement. Return of the Equipment by the Customer is solely at the Customer’s expense and risk, even if arranged by LITE, and shall be to the premises of LITE from where the Equipment was dispatched. The Customer agrees to not ship the Equipment by post.
1.8 The representative of lite holds public liability insurance of AUD$20 Million that covers the scope of lite's operations throughout the lease period.
Payment terms are strictly fourteen (14) days from date of invoice unless otherwise stated in the Rental Quote Agreement.
3 OVERDUE PAYMENTS
If any amount is due and unpaid, the Customer agrees to pay interest on the overdue amount at the rate of 10% per 30 days overdue (incremental). The Customer is liable for all additional costs LITE may incur, including legal, administrative and collection costs to recover unpaid amounts.
4 CUSTOMER'S COVENANTS
The Customer agrees with LITE that:
4.1 It will not remove any sticker or other identification from the Equipment giving notice of LITE ownership of the Equipment;
4.2 It has no right, title, estate or interest in the Equipment
4.3 The Customer shall not sell, transfer, assign, underlet, lend, charge, pledge or part with possession of the Equipment;
4.4 Purport to grant any encumbrance over or in connection with the Equipment or otherwise purport to offer or use the Equipment as security. For the purpose of these Conditions, emcumbrance means any mortgage, lien, charge, bill of sale, option, title retention, pledge, claim, restriction, condition, overriding interest, security interest pursuant to the Personal Property Securities Act 2009 (Cth) (“PPSA”) or other encumbrance.
4.5 The Customer shall keep the Equipment at the delivery address specified in the Rental Quote Agreement and the set up position unless prior permission has been obtained from LITE to relocate the Equipment elsewhere;
4.6 The Customer shall use the Equipment in a careful and proper manner and not interfere or tamper with or let anyone else do so;
4.7 the Customer shall notify LITE immediately if any judgement or order is levied against the Customer or property of the Customer or if a petition is presented for the liquidation of the Customer or an Administrator or Receiver is appointed or a scheme of arrangement is proposed;
4.8 The Customer shall permit LITE its agents or servants to enter the premises where Equipment is located at all reasonable times in order to inspect the Equipment or carry out repairs to the Equipment;
4.9 The Customer requires and will utilise the Equipment for its business purposes;
4.10 The Customer shall keep the Equipment in a safe, covered and proper location;
4.11 The Customer shall not alter or modify the Equipment without the prior written consent from LITE;
4.12 The Equipment shall at all time, whilst in the care, custody or control of the Customer, be at the risk of the Customer;
4.13 The Customer accepts full responsibility for all Equipment rented, including its use in accordance with any manufacturer or LITE operating instructions provided or Government Regulations. Where the Customer is using communications frequencies that are licensed or arranged by LITE these frequencies are for use only on the dates, at the places and during the times expressed on the Rental Agreement. Use of the frequencies outside the dates, places and times indicated may result in fines from relevant licensing authorities which are all payable by the Customer;
4.14 The Customer will comply with all State, Territory and Federal Laws in respect of the Equipment; and
4.15 The Equipment will not have any information contained in or associated with it which would, if received by LITE or any other person, be in breach of State, Territory or Federal privacy laws when it has been returned. It is the responsibility of The Customer to ensure that lite is not used by persons who are less than 13 years of age.
4.16 The Customer may not ‘on- hire’ the Equipment unless it receives the prior written consent of LITE. LITEs consent may be withheld in its absolute discretion.
4.18 Notwithstanding any other provisions of the Rental Documents, the parties agree that the Customer is liable to LITE for any loss or damage, including loss or damage of the Equipment, where that loss or damage has arisen as a direct or indirect result of the negligence of Customer and any potential ‘on-hiring’ interest.
LITE warrants that the Equipment is of merchantable quality. Other than expressly provided for in the Rental Quote Agreement the Customer acknowledges that it has not relied upon any statement or representation by LITE in respect of the Equipment or the use of the Equipment. Irrespective of whether or not the Customer’s purpose for the use of the Equipment is known to LITE the Customer acknowledges that under no circumstances is LITE responsible or liable for any failure or unsuitability of the Equipment to perform the purpose required by the Customer.
6 MAINTENANCE & SOFTWARE ISSUE
LITE shall at its expense, when it deems necessary, provide maintenance and recalibration for the Equipment and lite Application. LITE shall use its best endeavours to expeditiously repair or replace Equipment which may become defective during the rental period through no fault of the Customer. If the Equipment does not operate properly the Customer shall notify LITE and request instructions before taking any action. The responsibility for advising LITE of any need for recalibration rests with the Customer. LITE may at its sole and absolute discretion and for such length of time as it deems expedient replace the Equipment with another.
The Customer indemnifies LITE for all loss or damage suffered as a consequence of inoperability of the Equipment while it’s unable to be used for the business purpose it was leased for.
7 EARLY CESSATION
Notwithstanding the rental period, LITE expressly reserves to itself the right to require early cessation, which may be exercised on demand and at the absolute discretion of LITE. If LITE so demands, the Customer shall forthwith return the Equipment to LITE. The applicable rental fee shall be adjusted and payable at the daily rate on the Rental Quote Agreement for the period between the Lease Start Date and the date the Equipment, complete with accessories, is returned to LITE.
The Customer indemnifies LITE for all loss or damage suffered as a consequence of early cessation.
The Customer is responsible for the safekeeping of the Equipment and shall bear the risk of any loss, theft, damage or destruction of Equipment while on the premises and for the use required for lease.
8.1 Safekeeping ensures that the Equipment is set up and kept in a location that is covered. If the Customer requires that LITE or it’s agents, set up the equipment in open air, they forfeit any Damage Waiver acquired from clause 15 and applied to the lease in the Rental Quote Agreement, even if an additional fee is paid.
8.2 If the Equipment shall require repair, recalibration or replacement, the Customer shall bear the total cost of any such repair, recalibration or replacement including any freight charges there occasioned.
8.2.1 Any repairs carried out by LITE will be charged to the Customer at the original rates of LITE’s chosen manufacturer.
8.2.2 The Customer shall pay to LITE the total new replacement cost as assessed by LITE of the Equipment which is lost, stolen, destroyed or damaged beyond repair.
8.2.3 The Customer shall pay to LITE a reasonable calibration and refurbishing fee in the event that ownership labels, calibration seals or anti-tamper notices affixed to Equipment are removed or defaced.
8.2.4 Any item, article, accessory, document or thing supplied in conjunction with the Equipment (including operation manuals) not returned or are returned in damaged condition to LITE upon cessation of the rental period shall be paid for by the Customer with a fee determined by LITE being charged to the account of the Customer.
8.3 In respect of damage or loss of Equipment, or failure to return all of the Equipment (including all accessories), the rental period shall continue, and the Customer shall continue to pay rental until the Equipment has been repaired and returned (including all accessories) to LITE, or the replacement cost of new Equipment or accessories has been paid by the Customer.
8.4 If a Damage Waiver has been added to the Rental Quote Agreement then, unless any of the exclusion conditions as set out in clause 5 apply, LITE will take responsibly for all costs of repair and replacement.
8.5 The Customer indemnifies LITE for all loss or damage suffered as a consequence of such damage or loss to the Equipment and accessories.
9 CUSTOMER DEFAULT, TERMINATION & REPOSSESION
9.1 If the Customer is in breach of this Agreement (“Agreement”), LITE shall be entitled to treat the Agreement as breached and repudiated by the Customer and with or without notice accept the repudiation and terminate the Rental Agreement whereupon the Customer shall immediately, at its own cost and expense, return the Equipment to LITE and failing such return LITE may repossess the Equipment and charge the Customer for all of its costs and expenses incurred in doing so. Any such termination shall not prejudice any right to recover any unpaid rental and the rights and obligations under clause 4. Further, LITE shall be entitled to recover all damages including any consequential damages incurred.
9.2 Where the Agreement is terminated under clause 9.1, the Customer consents to LITE its servants and agents entering its premises, or any other premises where the Equipment is located, using such force as is necessary to repossess the Equipment. The Customer must provide LITE with all reasonable assistance in order to locate and collect the Equipment. If the Equipment is not available for collection at the nominated time and or place the Customer will be liable for any additional costs LITE incur.
9.3 LITE will not be liable for any damage to property caused by any person in collecting the Equipment.
The Customer agrees to indemnify LITE and be responsible for all costs, liability, damage, loss, claim or charges and other liabilities incurred by LITE as a result of the Customer’s breach of the Agreement or as a result of LITE enforcement of the Rental Quote Agreement and this Agreement or arising out of or in any way connected with the use of the Equipment.
11 SEPARATE ITEMS OF EQUIPMENT
Where more than one item of Equipment is supplied under the Rental Quote Agreement, in interpreting the Rental Documents, the singular shall be read as the plural where appropriate and the rental shall be apportioned to each item of Equipment as set forth in the Rental Quote Agreement and these Conditions herein set forth shall apply separately to each individual item of Equipment as though each item of Equipment was subject to separate Rental Documents.
12.1 Subject to clause 4, to the maximum extent permitted by law, LITE makes no warranties or representation and the Customer releases LITE from all liability for any loss, claim, damage or injury suffered in connection with the supply, lease and use of the Equipment.
12.2 Subject to clause 4, all express and implied warranties, guarantees and conditions under statute, general law or trade usage, as to merchantability, description, quality, suitability or fitness of the Equipment for any purpose, or as to design, assembly, installation, materials, workmanship or otherwise are expressly excluded.
12.3 Subject to any non-excludable warranty or condition and to the maximum extent permitted by law, LITE maximum aggregate liability for all claims relating to the Rental Documents their subject matter and this Agreement, whether in contract, tort (including negligence), in equity, under statute, under an indemnity, based on fundamental breach or breach of a fundamental term or on any other basis, is limited to an amount equal to the rental fees paid by the Customer under the Rental Quote Agreement.
12.4 LITE shall not be liable to the Customer in any circumstances for indirect, economic or consequential loss suffered by the Customer.
Subject to this paragraph, title in the property in the Equipment shall not pass to the Customer.
All rights pertaining to industrial or intellectual property including but not limited to copyrights, patents and trademarks are expressly reserved to LITE PTY LTD. The Customer nor LITE TRADING PTY LTD shall not make any copies or authorise any copying of anything supplied such as software programs and operating manuals except with the prior written authority of LITE PTY LTD as the owner/licensor and in accordance with the license terms as applicable. All copies must be delivered up with the Equipment.
All Intellectual Property (copyright) in the lite captures created while in the lease of the Customer, are the property of LITE PTY LTD who grants a non-exclusive license for LITE TRADING PTY LTD, the Customer and public to use.
15 DAMAGE WAIVER
LITE will offer at its discretion a damage waiver facility (“Waiver”) for the Equipment. The Waiver limits the Customer’s liability for SOME loss and damage to the Equipment.
The Waiver only applies where, after assessment by LITE, the Customer did not act negligently in what resulted in damage, theft or loss of the Equipment.
15.1 If the Customer seeks the Waiver and it is available, the rental rate, at the discretion of LITE may be increased by a fee (“Waiver Fee”).
15.2 If the Waiver has been applied by LITE, this will be stipulated as an item of inclusion in the Rental Quote Agreement.
15.3 The waiver limits the rights of LITE against the Customer for loss and damage to the Equipment if:
(a) The Customer notifies LITE of the loss or damage as soon as it’s identified and before the end of the lease Term, where possible.
(b) The loss or damage is not due to circumstances of negligent conduct as set out in clause 8: Safekeeping and 15.4
15.4 For clarity, the Waiver does not cover loss or damage to the Equipment in the following negligent circumstances:
(a) the theft of the Equipment; or
(b) misuse or use contrary to LITE’s or the manufacturer’s instructions; or
(c) malice or any deliberate act by the Customer or public; or
(d) negligent acts or omissions or want of care; or
(e) an act or omission by any person who is not the Customer or in the Customer's direct employ; or
(f) damage by any cause at or from a place which has not been approved as a rental location;
(g) the Customer breaches any item or condition of this Agreement; or
(h) is caused by vandalism;
(i) is caused by the overloading of the Equipment.
(j) the Equipment is outside the reasonable scope of what would be deemed Safekeeping and as set out in clause 8.
15.5 The Customer is responsible in cases of damage or loss from deliberate acts, vandalism or theft, to identify the person(s) involved. Being unable to identify the person involved results in negligence by the Customer.
16.1 The Rental Documents constitute the entire agreement between LITE (agent, distributor or franchise of LITE PTY LTD) and the Customer with respect to the Equipment and shall not be amended except in writing by LITE. Amendments by the agents, distributors or franchisees of LITE PTY LTD are at their own risk.
The Rental Documents shall be governed in all respects by the laws of Australia and the jurisdiction of the state of lease shall apply to any dispute arising out of the Rental Documents. To the extent of any inconsistency between this lease Agreement and the lease Agreement presented to the Customer, the presented agreement applies.
16.2 LITE PTY LTD may amend the Conditions of this general lease agreement by providing written notice to the Customer prior to the commencement of the lease and the amended Conditions are deemed to be accepted by the Customer if the Customer continues to use the Equipment after receipt of the amended Conditions.
This agreement was written by LITE PTY LTD and must agreed to between the agent, distributor and franchise of LITE PTY LTD and the Customer.