TERMS AND CONDITIONS
These terms and conditions (“Terms”), together with the Organisation Form, form the Agreement under the terms of which DIY Fundraising ABN. 51 641 654 471 T/A Fundraise For Schools and Clubs – Colour Blast will provide the Event and/or Fundraising Services to the Organisation.
1. Organisation Form and this Agreement
(a) These Terms will govern the Organisation’s dealings with Colour Blast and the provision of Fundraising Services to the Organisation by Colour Blast in accordance with the details set out in the Organisation Form. These Terms will also apply to any documents referenced in the Organisation Form and will also form part of this Agreement.
(b) The Organisation will be taken to have accepted this Agreement if the Organisation orders or accepts any Fundraising Services provided by Colour Blast.
(c) In the event of any inconsistency between these Terms and any Organisation Form, the clauses of these Terms will prevail to the extent of such inconsistency, except that any “Special Conditions” set out in the Organisation Form will prevail over these Terms to the extent of any inconsistency.
2. Fundraising Services
2.1 Provision of Fundraising Services
(a) In consideration for the Fees, Colour Blast will provide the Organisation with the Event and/or Fundraising Services as selected by the Organisation on the Organisation Form.
(b) Unless otherwise agreed, Colour Blast may, in its discretion not commence work on any Event and/or Fundraising Services until the Organisation has paid or directed the participant’s parent/guardian to pay the participation fees payable in respect of such Event and/or Fundraising Services.
2.2 Selection of Packages
(a) The Organisation may select from several different Event and/or Fundraising Services packages offered by Colour Blast.
(b) All Event and/or Fundraising Services packages include materials for pre-event fundraising and materials for the Colour Blast fun run based on the Organisation’s selection pursuant to clause 2.2(a) (“the Fundraising Materials”).
(c) The Event and/or Fundraising Services packages will differ on:
(i) the quantity and type of Fundraising Materials provided; and
(ii) whether the Organisation has selected an Event and/or Fundraising Services package that includes the organisation of the Event,
as set out in the Organisation Form.
2.3 Fundraising Materials
(a) Colour Blast will provide the Fundraising Materials set out in the Organisation Form.
(b) The quantity and type of the Fundraising Materials will depend on:
(i) the number of participants in the Event and/or Fundraising Services; and
(ii) the Event and/or Fundraising Services package selected by the Organisation.
(c) Fundraising Materials are to be used only in accordance with the directions of Colour Blast’s or the manufacturer’s instructions.
2.4 The Event
(a) If the Event and/or Fundraising Services package selected by the Organisation and as set out in the Organisation Form includes the organisation and operation of the Event then Colour Blast will:
(i) view the Event Address prior to the Event Date by either in person or electronically at the discretion of Colour Blast;
(ii) organise and set up the equipment and materials required to operate the Event at the Event Address;
(iii) during the Event, organise the participants’ involvement in the Event;
(iv) organise any activities (if any) following the Event; and
(v) pack up and remove all of Colour Blast’s equipment and materials from the Event Address.
(b) Operating a Event can involve many hundreds of participants, both participants and adults, and although Colour Blast will ensure to organise and operate the Event with due care and skill, Colour Blast may require assistance from the Organisation, for example to record participants and organise participants into groups. Accordingly, the Organisation agrees to any reasonable requests for assistance by Colour Blast to operate the Event.
2.5 Equipment Hire
Where the Organisation selects Equipment Hire as set out in the Organisation Form, then the additional provisions as set out in Schedule A apply.
2.6 The Event Address
(a) If the Event and/or Fundraising Services package selected by the Organisation and as set out in the Organisation Form includes the organisation and operation of the Event by Colour Blast, then Colour Blast may, in its discretion, require access to the Event Address prior to the Event Date.
(b) The Organisation must obtain any licences, permits and authorisations required to operate the Event.
(c) Following the Event, Colour Blast will remove all items of equipment and materials that belong to Colour Blast. Colour Blast may assist in any cleaning up or the packing up of items that do not belong to Colour Blast however, Colour Blast is under no obligation to do so and the Organisation agrees that it is the Organisation’s sole responsibility to ensure the Event Address is cleaned and restored to the standard required.
(d) The Organisation agrees that it is the Organisation’s sole responsibility to satisfy itself with the suitability and appropriateness of the Event Address for the Event to take place. Colour Blast makes not representations, warranties or any other statements about the suitability or appropriateness of any location or Event Address.
3. Organisation Obligations
3.1 Provide Assistance
The Organisation agrees to:
(a) provide Colour Blast with all information and assistance reasonably required for Colour Blast to provide the Event and/or Fundraising Services;
(b) if applicable, direct the participant’s parent/guardian to the sign up page and to make payment of the participation fee;
(c) alert Colour Blast immediately of any participant’s that suffer from any injuries or illnesses that may be at risk by participating in the Event and/or Fundraising Services;
(d) use all reasonable endeavours to ensure that participants do not participate in the Event unless their parent/guardian has provided consent and paid the participation fee;
(e) liaise with Colour Blast as is reasonably required for the purpose of enabling Colour Blast to provide the Event and/or Fundraising Services; and
(f) refrain from selling any merchandise that is in any way specifically associated to the Event and/or Fundraising Services.
3.2 Compliance with Laws
The Organisation agrees that it will:
(a) comply with any applicable laws and regulations (including, but not limited to, workplace health and safety laws and any COVID requirements); and
(b) comply with any applicable policies, guidelines and directions relevant to the provision of the Event and/or Fundraising Services to the Organisation.
3.3 Safety
In providing the Event and/or Fundraising Services where the Event is a hosted Event, Colour Blast will ensure to provide them with all due care and skill. Physical activities, however, always involves risk and the large number of participants means Colour Blast is unable to guarantee the safety of very participant. Accordingly, the Organisation agrees to:
(a) monitor the legal guardian of each participant’s registration and acceptance of the risks involved and to prevent their participation if they do not accept those risks;
(b) comply with and procure the participants’ compliance with any safety instructions from Colour Blast;
(c) to provide any reasonable assistance as required by Colour Blast to implement any safety precautions;
(d) satisfy itself with the safety precautions implemented; and
(e) ensure that any other safety precautions that it deems necessary are implemented.
3.4 Obligations and Warranties
The Organisation warrants that:
(a) there are no legal restrictions preventing the Organisation from agreeing to these Terms;
(b) the information the Organisation provides to Colour Blast is true, correct and complete;
(c) the Organisation is responsible for obtaining any consents, licences and permissions from other parties necessary for the Event and/or Fundraising Services to be provided, at the Organisation’s cost, and for providing Colour Blast with the necessary consents, licences and permissions; and
(d) the Organisation consent to the use of the Organisation’s name and image in relation to the Event and/or Fundraising Services in a way which may identify the Organisation.
3.5 Assumption of Risk
(a) All suggestions and comments relating to the use of equipment and any instructions shown in any video and other materials are required to be performed or adhered to by the Organisation. The Organisation acknowledges that it will participate in the Evant and/or Fundraising Services at its own risk.
(b) The Organisation acknowledges that participating in the Event and/or Fundraising Services or any related exercises and activities may involve a risk of serious injury or even death from various causes including but not limited to: overexertion, dehydration, equipment failure and accidents with equipment and surroundings.
(c) It is the Organisation’s responsibility to ensure that the participants in the Fun Run will not exceed their limits while performing such activity, and the Organisation will select the appropriate level of class for the participants skills and abilities, as well as any mental or physical conditions and/or limitations they may have.
(d) The Organisation recognises the difficulties associated with participants attending a Fun Run and attest that all participants are physically fit to participate safely in the activity and that a qualified medical practitioner has not advised the Organisation otherwise.
(e) In the event that the Organisation becomes aware of any medical conditions, injuries or impairments that may be detrimental to a participant’s health, they must ensure that that participant does not attend the Event and/or Fundraising Services.
(f) Where the Event and/or Fundraising Services is a Hosted Event, the Organisation assumes joint risk involved with the set up and running of the Event and/or Fundraising Services.
(g) Where the Event and/or Fundraising Services is a DIY Event, the Organisation assumes 100% of the risks involved with the set up and running of the Event and/or Fundraising Services. To the extent permitted by law, Colour Blast will not be liable for any risk associated with DIY Event and/or Fundraising Services.
4. Payments
4.1 Fees
Subject to the selected Event and/or Fundraising Services, the Organisation must adhere to the payment terms as stipulated on the Organisation Form.
4.2 Distribution of Raised Funds
(a) The Organisation will advise Colour Blast of the total amount of money raised by the Organisation in connection with the Event and/or Fundraising Services, including any pre-event donations and money collected during the Event and/or Fundraising Services (“the Raised Funds”) following 14 days of the Event Date.
(b) The Fees payable for the Event and/or Fundraising Services will be calculated as a percentage of the Raised Funds as set out in the Organisation Form. Colour Blast will then issue an invoice to the Organisation for the Fees.
(c) If the Fees payable to Colour Blast are less than the cost of the Fundraising Materials as set out in the Organisation Form then the Organisation agrees to pay the balance of the Fundraising Materials cost to Colour Blast upon the issue of an invoice.
4.3 Invoices
Unless otherwise agreed in the Organisation Form, payment must be made by the time specified in Colour Blast’s invoice.
4.4 Unpaid Invoices
(a) Colour Blast may charge interest at a rate equal to the Reserve Bank of Australia’s cash rate from time to time plus 8% per annum, calculated daily and compounding monthly, on any amounts unpaid after the payment date.
(b) If invoices are unpaid after the payment date, Colour Blast reserve the right to take steps to recover any outstanding professional fees and outlays owing to us. In the event of non-payment, Colour Blast have the right to engage debt collection services for the collection of unpaid debts, the right to commence legal proceedings for any outstanding amounts owed to us and the right to take any other adverse action against the Organisation as Colour Blast consider appropriate. If any action is required to recover amounts owing to us (including without limitation issuing and receiving any correspondence, commencing court proceedings, taking enforcement action and so on), the Organisation acknowledge and agree that the Organisation are liable for and must pay all costs including without limitation debt collection, commission, charges, costs and any out-of-pocket expenses (including all legal costs and legal fees on an indemnity basis and all fees charged by counsel).The Organisation agree to indemnify us against any costs Colour Blast may incur in recovering payment of any unpaid invoices.
(c) Colour Blast reserve the right to report bad debts to independent credit data agencies.
4.5 Payment Method
The Organisation must pay Fees using the fee payment method specified in the invoice.
4.6 GST
Unless otherwise indicated, amounts stated in a Organisation Form do not include GST. In relation to any GST payable for a taxable supply by Colour Blast, the Organisation must pay the GST subject to Colour Blast providing a tax invoice.
4.7 Credit Card Surcharges
Colour Blast reserves the right to charge credit card surcharges in the event payments are made using a credit, debit or charge card (including Visa, MasterCard, American Express or Diners Club).
4.8 Refunds
(a) Subject to the Australian Consumer Law, refunds will only be given in the event of faulty or non-functioning equipment, or in the event of non-performance of its obligations by Colour Blast.
(b) The Organisation warrants that they have conducted their proper due diligence with respect to the viability, desirability or otherwise perception of the Event and/or Fundraising Services and refunds will not be provided for change of mind or cancellation or termination without cause.
5. Promotions
5.1 Use of Photo and Video Material
For the purposes of promoting Colour Blast generally, the Event and/or Fundraising Services, Colour Blast may use any photos and videos, written testimonials and comments consented to be captured or recorded or provided to Colour Blast in connection with the Event and/or Fundraising Services. The Organisation agrees to Colour Blast using such material and grant a royalty-free, non-exclusive, non-transferable, worldwide and irrevocable license to use this material.
5.2 Compliance with Laws
Any material used for promotional purposes will comply with:
(a) all applicable laws in connection with the use of images, videos and other promotional materials that include children and where relevant, public buildings and areas such as schools and fields; and
(b) Colour Blast’s privacy policy which can be provided on request.
6. Third Party Goods and Fundraising Services
(a) Any Event and/or Fundraising Services that requires Colour Blast to acquire goods and services supplied by a third party on behalf of the Organisation may be subject to the terms & conditions of that third party (“Third Party Terms”), including ‘no refund’ policies.
(b) The Organisation agrees to any Third Party Terms applicable to any goods and Event and/or Fundraising Services supplied by a third party that the Organisation or Service Provider acquires as part of the Event and/or Fundraising Services and Colour Blast will not be liable for any loss or damage suffered by the Organisation in connection with such Third Party Terms.
7. Confidentiality
(a) Colour Blast including their employees and contractors, agree not to disclose the Organisation’s Confidential Information to any third party (other than where necessary, to third party suppliers, or as required by law); to use all reasonable endeavours to protect the Organisation’s Confidential Information from any unauthorised disclosure; and only to use the Organisation’s Confidential Information for the purpose for which it was disclosed by the Organisation to us, and not for any other purpose.
(b) The Organisation including their employees and contractors, agree not to disclose Colour Blast’s Confidential Information to any third party; to use all reasonable endeavours to protect Colour Blast’s Confidential Information from any unauthorised disclosure; and only to use Colour Blast’s Confidential Information for the purpose for which it was disclosed or provided by us to the Organisation, to provide better quality services to the Organisation and not for any other purpose.
(c) These obligations do not apply to Confidential Information that:
(i) is authorised to be disclosed;
(ii) is in the public domain and/or is no longer confidential, except as a result of a breach of these Terms;
(iii) is received from a third party, except where there has been a breach of confidence; or
(iv) must be disclosed by law or by a regulatory authority including under subpoena.
(d) For the purposes of this Agreement, “Confidential Information” means information of or provided by a party to the other party under or in connection with this Agreement that is by its nature confidential information, is designated by the party as confidential, or the other party knows or ought to know is confidential, but does not include information, which is or becomes, without a breach of confidentiality, public knowledge.
(e) This clause will survive the termination of these Terms.
8. Intellectual Property
(a) Colour Blast own the intellectual property rights in:
(i) our pre-existing Intellectual Property, including but not limited to copyright which subsists in all creative and literary works incorporated into Colour Blast’s pre-existing Intellectual Property; and
(ii) Intellectual Property that Colour Blast create during the course of the Fundraising Services, including but not limited to copyright which subsists in all creative and literary works in all Intellectual Property that Colour Blast create during the course of the Fundraising Services;
(b) unless Colour Blast assign or transfer this to the Organisation. This Intellectual Property is protected by Australian and international laws.
(c) Nothing in these Terms constitutes an assignment or transfer of Colour Blast’s Intellectual Property rights, or a right to use Colour Blast’s Intellectual Property, whether registered or unregistered, except as stated in these Terms or with Colour Blast’s written permission.
(d) The Organisation must not breach Colour Blast’s intellectual property rights by, including but not limited to:
(i) altering or modifying Colour Blast’s Intellectual Property;
(ii) creating derivative works from the Intellectual Property; or
(iii) using Colour Blast’s Intellectual Property for commercial purposes such as on-sale to third parties.
(e) For the purpose of this Agreement, “intellectual property” means all copyright, trade mark, design, patent, semiconductor and circuit lathe Organisation t rights, trade, business, company and domain names, confidential and other proprietary rights, and any other rights to registration of such rights whether created before or after the date of these terms in Australia and throughout the world.
(f) This clause will survive the termination of these Terms.
9. Exclusion of Warranties
(a) To the maximum extent permitted by applicable law, all express or implied representations and warranties (whether relating to fitness for purpose or performance, or otherwise) not expressly stated in this Agreement (including the Organisation Form) are excluded.
(b) Nothing in this Agreement is intended to limit the operation of the Australian Consumer Law contained in the Competition and Consumer Act 2010 (Cth) (“the ACL”). Under the ACL, the Organisation may be entitled to certain remedies (like a refund, replacement or repair) if there is a failure with the Fundraising Services provided.
10. Liability
(a) To the maximum extent permitted by applicable law, the maximum aggregate liability of Colour Blast to the Organisation in respect of loss or damage sustained by the Organisation under or in connection with this agreement is limited to the total Fees paid to Colour Blast by the Organisation as at the date of the first event giving rise to the relevant liability.
(b) The Organisation agrees at all times to indemnify and hold harmless Colour Blast and its officers, employees and agents (“those indemnified”) from and against any loss (including reasonable legal costs) or liability incurred or suffered by any of those indemnified where such loss or liability was caused or contributed to by the Organisation or the Organisation’s officers’, employees’ or agents’:
(i) breach of any term of this agreement; or
(ii) negligent, fraudulent or criminal act or omission.
(c) Colour Blast will not be liable for any incidental, special or consequential loss or damages, or damages for loss of data, business or business opportunity, goodwill, anticipated savings, profits or revenue arising under or in connection with this Agreement or any goods or services (including the Fundraising Services) provided by Colour Blast, except to the extent this liability cannot be excluded under the Competition and Consumer Act 2010 (Cth) or any other applicable law.
11. Subcontracting
Colour Blast may subcontract any aspect of providing the Fundraising Services and the Organisation hereby consents to such subcontracting.
12. Termination
12.1 Termination for Cause
Either party (“the Non-Defaulting Party”) may terminate this Agreement immediately by written notice to the other party (“the Defaulting Party”) if the Defaulting Party is in breach of this Agreement and either:
(a) fails to remedy such breach within fourteen (14) days of receiving notice from the Non-Defaulting Party requiring it to remedy such breach; or
(b) that breach is not capable of remedy.
12.2 Effect of Termination
Upon termination of this Agreement:
(a) Colour Blast will refund any amounts paid by the Organisation or by participant’s parents/guardians for goods or services (including the Event and/or Fundraising Services) the costs of which not incurred by Colour Blast as at the date of termination;
(b) Colour Blast will remit to the Organisation the total donations subject to the Event and/or Fundraising Services package Terms to Organisation subject to the terms and conditions as are herein contained;
(c) the Organisation must pay all amounts owed for goods or services (including the Event and/or Fundraising Services) the costs of which already incurred by Colour Blast as at the date of termination;
(d) each party must return all property of other parties to those respective parties;
(e) each party must immediately return to each other party, or (if requested by that party) destroy, any documents in its possession or control containing Confidential Information of the other party; and
(f) no rights, liabilities or remedies of any party will be invalidated by the termination.
12.4 Non Merger
Any clause that by its nature would reasonably be expected to be performed after the termination or expiry of this Agreement will not merge upon completion and survive and be enforceable after such termination or expiry.
13. Dispute Resolution
(a) The Organisation’s feedback is important to Colour Blast. Colour Blast seek to resolve any concerns quickly and effectively. If the Organisation has any feedback or questions about the Fundraising Services, please contact Colour Blast.
(b) If there is a dispute between the Parties in relation to these Terms, in the first instance the Parties agree to the following dispute resolution procedure:
(i) The complaining party must tell the other party in writing, the nature of the dispute, what outcome the complaining party wants and what action the complaining party thinks will settle the dispute. The Parties agree to meet in good faith to seek to resolve the dispute by agreement between them at an initial meeting.
(ii) If the Parties cannot agree how to resolve the dispute at that initial meeting, any party may refer the matter to a mediator. If the Parties cannot agree on who the mediator should be, the complaining party will ask the Law Society of Queensland to appoint a mediator. The mediator will decide the time and place for mediation. The parties must attend the mediation in good faith, to seek to resolve the dispute and will be equally responsible for the costs of the mediator.
(c) Any attempts made by the parties to resolve a dispute pursuant to this clause are without prejudice to other rights or entitlements of the parties under these Terms, by law or in equity.
14. Notices
(a) A notice or other communication to a party under this agreement must be:
(i) in writing and in English; and
(ii) delivered via email to the other party, to the email address specified in this agreement, or if no email address is specified in this agreement, then the email address most regularly used by the parties to correspond regarding the subject matter of this agreement as at the date of this agreement (Email Address). The parties may update their Email Address by notice to the other party.
(b) Unless the party sending the notice knows or reasonably ought to suspect that an email was not delivered to the other party’s Email Address, notice will be taken to be given:
(i) 24 hours after the email was sent; or
(ii) when replied to by the other party,
whichever is earlier.
15. General
15.1 Governing Law and Jurisdiction
This Agreement is governed by the law applying in Queensland. Each party irrevocably submits to the exclusive jurisdiction of the courts of Queensland and courts of appeal from them in respect of any proceedings arising out of or in connection with this Agreement. Each party irrevocably waives any objection to the venue of any legal process on the basis that the process has been brought in an inconvenient forum.
15.2 Amendments
This Agreement may only be amended in accordance with a written agreement between the parties.
15.3 Waiver
No party to this Agreement may rely on the words or conduct of any other party as a waiver of any right unless the waiver is in writing and signed by the party granting the waiver.
15.4 Severance
To the extent permitted by law, if any provision (or part of it) under these Terms is held to be unenforceable or invalid in any jurisdiction, then it will be interpreted as narrowly as necessary to allow it to be enforceable or valid. If a provision (or part of it) under these Terms cannot be interpreted as narrowly as necessary to allow it to be enforceable or valid, then the provision (or part of it) must be severed from these Terms and the remaining provisions (and remaining part of the provision) of these Terms are valid and enforceable.
15.5 Joint and Several Liability
An obligation or a liability assumed by, or a right conferred on, two or more persons binds or benefits them jointly and severally.
15.6 Assignment
A party cannot assign, novate or otherwise transfer any of its rights or obligations under this Agreement without the prior written consent of the other party.
15.7 Counterparts
This Agreement may be executed in any number of counterparts. Each counterpart constitutes an original of this Agreement and all together constitute one Agreement.
15.8 Legal Advice
Each party must obtain its own independent legal advice and pay its own legal costs and expenses in relation to the negotiation, preparation and execution of this Agreement and any variation or replacement of this Agreement.
15.9 Costs
Except as otherwise provided in this Agreement, each party must pay its own costs and expenses in connection with negotiating, preparing, executing and performing this Agreement.
15.10 Entire Agreement
This Agreement embodies the entire Agreement between the parties and supersedes any prior negotiation, conduct, arrangement, understanding or Agreement, express or implied, in relation to the subject matter of this Agreement.
15.11 Interpretation
(a) words in the singular includes the plural (and vice versa);
(b) words indicating a gender includes the corresponding words of any other gender;
(c) if a word or phrase is given a defined meaning, any other part of speech or grammatical form of that word or phrase has a corresponding meaning;
(d) a reference to “person” or “the Organisation ” includes an individual, the estate of an individual, a corporation, an authority, an association, consortium or joint venture (whether incorporated or unincorporated), a partnership, a trust and any other entity;
(e) a reference to a party includes that party’s executors, administrators, successors and permitted assigns, including persons taking by way of novation and, in the case of a trustee, includes any substituted or additional trustee;
(f) a reference to a party, clause, paragraph, schedule, exhibit, attachment or annexure is a reference to a party, clause, paragraph, schedule, exhibit, attachment or annexure to or of this Agreement, and a reference to this Agreement includes all schedules, exhibits, attachments and annexures to it;
(g) a reference to a document (including this Agreement) is to that document as varied, novated, ratified or replaced from time to time;
(h) headings and words in bold type are for convenience only and do not affect interpretation;
(i) the word “includes” and similar words in any form is not a word of limitation; and
(j) no provision of this Agreement will be interpreted adversely to a party because that party was responsible for the preparation of this Agreement or that provision.
SCHEDULE A
1. Equipment Hire Only
1.1 If the Event and/or Fundraising Services package selected by the Organisation and as set out in the Organisation Form does not include the organisation of the Event by Colour Blast, Colour Blast will:
(a) view the Event Address prior to the Event Date by either in person or electronically at the discretion of Colour Blast;
(b) set up the Equipment and materials required to operate the Event and/or Fundraising Services at the Event Address; and
(c) pack up and remove all of Colour Blast’s Equipment and materials from the Event Address on completion.
1.2 Colour Blast will be present for the duration of the Event to monitor the performance of the equipment and correct any malfunctions thereto, but will not supervise, organise, MC or monitor the Event, this is the Organisation’s responsibility.
1.3 The Organisation agrees to comply with any instructions and/or reasonable requests or requirements by Colour Blast to operate the Event.
2. Hire
2.1 Subject to clause 1.2, the Organisation will be in Effective Control of the Equipment for the Event.
2.2 The Equipment will be delivered to Event Address on the Event Date at the time pre-agreed between parties.
2.3 Whilst under Effective Control, the Organisation will bear all risks of loss, theft, Damage and destruction of or to the Equipment and every part thereof, and no such loss, theft, Damage or destruction, nor any other event or circumstance of any nature whatsoever, shall impair or frustrate any obligation of the Organisation under these Terms (including without limitation as to the payment of Fees or other payments) so that all such obligations shall, continue in full force and effect, but for that caused by the negligent or wilful act or omission of Colour Blast.
2.4 On the Event Date and while under the Effective Control of the Equipment, Colour Blast will not be liable for any liability, claim, loss, damage or expense of any kind caused directly or indirectly by the Equipment or any part of the Equipment howsoever caused prior to the collection of the Equipment by Colour Blast, but for that caused by the negligent or wilful act or omission of Colour Blast.
2.5 The Organisation acknowledge that Colour Blast retain all title to the Equipment and that the Organisation have limited rights to use the Equipment as a bailee only. The Organisation must not to sell, purport to sell, assign, sub-let, charge, lend, pledge, mortgage, let or hire or otherwise part with or attempt to part with personal possession of, or create any security interest over, the Equipment.
3. Hirer Obligations and Warranties
3.1 The Organisation warrants that:
(a) the Organisation will ensure that, the Equipment is securely located on the Event Address and/or the Organisation is authorised to occupy those premises and keep the Equipment there;
(b) the Organisation will ensure that at all times the Event Address is safe and that all facilities provided by the Organisation for the purposes of enabling the Equipment to be used are also safe;
(c) the Organisation will use their best endeavours to ensure that the Equipment is not at risk of being lost damaged or destroyed including but not limited to taking keys out of the ignition, locking the Equipment, and storing off of the road if possible;
(d) the Organisation will do all such things as are necessary to discharge the Organisations obligations under all applicable Occupation Health and Safety legislation, regulations and codes of practice so as to ensure that the Event Address and the Equipment are safe and free from dangerous conditions;
(e) the Organisation will act lawfully and will comply with any applicable licenses, laws, regulations, industry codes of conduct, health and safety requirements and Australian standards in relation to the use of the Equipment; and
(f) the Organisation has adequate insurance to cover all liabilities incurred as a result of the use of the Equipment.
3.2 Where the Organisation is in Effective Control of the Equipment, then the Organisation is a bailee of the Equipment. In addition to all duties imposed at law upon bailees, it is an essential term of these Terms that the Organisation will:
(a) at all times exercise all reasonable care and diligence in the use of the Equipment in accordance with Manufacturer’s and Colour Blast’s recommendations and specifications;
(b) make the Equipment available for collection in good order and working condition at the Event Address;
(c) not tamper or in any way interfere with, or repair or attempt to repair the Equipment;
(d) be responsible for all accidental damage to the Equipment, save and except where such damage is caused by Colour Blast;
(e) be responsible for all loss or damage to the Equipment occasioned by theft, malicious damage, or other unlawful act, save and except where such loss or damage occurs when the Equipment is under the Effective Control of Colour Blast;
(f) at no time during the Fun Run Date part with possession of the Equipment or in any way deal with it in a manner inconsistent with the rights of Colour Blast as owner;
(g) ensure that the Equipment is secure at all times and where being stored in unlocked premises, supply such security measure to ensure that the Equipment is secure at all times;
(h) not remove or deface any label, Manufacturer’s serial numbers or other marks identifying the Equipment and/or Colour Blast’s ownership of the Equipment; and
(i) not permit any person to improperly use the Equipment.
4. The Equipment
4.1 The Equipment will at all times remain the property of Colour Blast. The Organisation has no legal or equitable interest in the Equipment or any part of the Equipment. The Organisation has possession of the Equipment (upon drop off) will be as a bailee for the Fun Run Date and thereafter at will.
4.2 On the Event Date, the Equipment must be inspected by the Organisation to determine whether the Equipment is complete in accordance with these Terms and is in good order and working condition. Unless otherwise stated in the Special Conditions, the Organisation will on completion of the inspection be deemed to have satisfied that the Equipment as a whole is suitable, fit and merchantable and capable of meeting all the Organisations requirements.
4.3 Unless Colour Blast has been expressly retained, in writing, to advise on the suitability, fitness and merchantability of the Equipment for the Organisations purpose, any warranting as to suitability, fitness or merchantability is hereby expressly excluded.
4.4 Any faults or defects of the Equipment must be notified by the Organisation to Colour Blast, immediately.
5. Damage
5.1 Subject to clause 5.2, the Organisation accept responsibility for restoring the Equipment to its Delivery Condition, except fair wear and tear.
5.2 Damage Waiver
(a) The Organisation is liable for Damage to the Equipment can be limited in some circumstances, to the Damage Waiver Excess (“Damage Waiver”).
(b) Our Damage Waiver applies to the Organisation for the hire of the Equipment for no additional fee, however, it does not apply and will not limit the Organisations liability in the following circumstances:
(i) where the Equipment is lost or stolen;
(ii) where the operator is not suitably licensed;
(iii) where the operator is affected by drugs and/or alcohol; and
(iv) where the Equipment has been wilfully damaged at any time during the hire period.
6. Limitation of Liability
6.1 To the extent permitted by law, Colour Blast is not liable to the Organisation for any loss or damage which the Organisation might sustain as a consequence of the Organisation ordering the wrong Equipment or where the Equipment is hired for a purpose which is outside of the Equipment’s specifications.
6.2 Colour Blast is not liable for any damage or loss which is sustained by the Organisation or the Organisation’s subsidiaries, including personal injury or death, if any of these Terms are breached.
7. Interpretation
7.1 For the purpose of Schedule A “Effective Control” means actual physical control and use of the Equipment at relevant times. Where the Equipment is provided to you on a Dry Hire basis, it will be deemed to be under the Effective Control of you.
7.2 For the purpose of Schedule A “Delivery Condition” means the condition of the Equipment upon delivery to Event Address or on collection by you.
7.3 For the purpose of Schedule A “Damage” means physical damage caused to the Equipment as a result of the Organisation’s:
(a) negligent use or abuse of the Equipment including impact, misuse, mishandling and faulty operation;
(b) operation in abnormal conditions;
(c) operation outside the recommendations set out in the operation manual for the Equipment;
(d) operation or maintenance not in accordance with the manufacturer’s recommendations or those set out by Colour Blast;
(e) operation not in accordance with common sense or with any legislation applicable;
(f) the failure of any component parts due to faulty operation or maintenance.