Terms & Conditions
A waiver form to accept terms and conditions of trade is required to be signed by the customer prior to setup of any tent or outdoor cinema package. This will be organised by Magical Nights on the day of the event. The event cannot take place without the document being signed by the Hirer. It is advised to carefully read all terms and conditions of trade prior to the date of event.
Magical Nights Standard Terms of Trade
- Thank you for using our website located https://www.magicalnightsmackay.com.au (“Website”).This Website is owned and operated by Magical Nights (ABN 89332413478) (“Magical Nights”). Any reference to “our”, “we”, “us” shall mean Magical Nights.
- Magical Nights is in the business of making available for hire Equipment for children’s parties and other events through bookings (“Bookings”) for our services (“Services”).
- These terms of trade (“Terms”) govern your use of our Website and Services.
- Our Services are currently available to customers within Mackay and the surrounding areas and the Whitsundays Queensland.
- The acceptance of a Booking by Magical Nights shall be subject to these Terms which make up the hire agreement between us and you as our customer (“Customer”). Any reference to “you” shall mean the Customer. Magical Nights reserves the right to deny any person access to our Services at any time.
- It is important that you read and understand these Terms before hiring Equipment from us as the Terms govern your access to and use of our Services. If you have any questions, please ask us. Before you continue, we recommend you download and keep a copy of these Terms for your records.
- EQUIPMENT HIRE AGREEMENT
2.1 Magical Nights agrees to hire to Customer the Equipment during the Hire Period subject to these Terms.
2.2 These Terms constitute a contract between Magical Nights and Customer for an agreed fee.
2.3 Customer accepts during the Hire Period full responsibility for the security and care of the Equipment, any of its contents and all property owned by Magical Nights. Customer must be at least eighteen (18) years of age to enter into these Terms with Magical Nights.
2.4 Customer agrees that it will be bound by the Terms if Customer places a Booking with Magical Nights and the Booking is accepted by Magical Nights.
2.5 These Terms forms the entire contract between Magical Nights and Customer unless otherwise agreed by Magical Nights and Customer in writing.
- In these Terms of Trade, the following references mean:
‘ACL’ means the Australian Consumer Law as set out under Schedule 2 of the Competition and Consumer Act 2010 (Cth).
‘Claim’ means any claim, cost, damages, debt, expense, liability, loss, suit, action, demand, cause of action or proceeding of any kind irrespective of: (a) how or when it arises; (b) whether it is actual or contingent; (c) whether or not it is in respect of legal or other costs, damages, expenses, fees or losses; (d) whether or not it is in respect of a breach of trust or of a fiduciary or other duty or obligation; and (e) whether or not it arises at Law or otherwise (including by way of contribution or indemnity).
‘Customer’ refers to the person or organisation hiring equipment from Magical Nights.
‘Equipment’ means the goods and equipment available for hire including bell tents, outdoor cinema equipment, decorations, beddings, air beds, outdoor chairs, tables and popcorn machines in the specific Event package that is agreed between Magical Nights and Customer.
‘Event’ means the planned occasion for which the Equipment is hired (e.g. a party or other special occasion).
‘Hire Fee’ means the fee agreed between Magical Nights and Customer for the hire of the Equipment under these Terms.
‘Intellectual Property (Rights)’ means all intellectual property rights, including all copyright, patents, trade marks, design rights, trade secrets, circuit layouts, domain names, know-how and other rights of a similar nature worldwide, whether registered or not, and any applications for registration or rights to make such an application.
‘Hire Period’ starts when you take possession of the Equipment at the Site and ends when the Equipment is collected and back in our custody and possession.
‘Liability’ means any debt, obligation, cost (including legal costs, deductibles or increased premiums), expense, loss, damage, compensation, charge or liability of any kind, including those arising from third party Claims, those that are prospective or contingent and those the amount of which is not ascertained or ascertainable, and whether arising under breach of contract, in tore (including negligence), restitution, pursuant to statute or otherwise at law or in equity.
‘Loss’ means any cost, expense, loss, damage or liability whether direct, indirect or consequential (including pure economic loss), present or future, ascertained or unascertained, actual, prospective or contingent, or any fine or penalty and includes legal costs.
‘Site’ means the location for the delivery of the Equipment for installation and use during the Hire Period.
‘Works’ means any material made available on the Site or included in our Services, including (without limitation) written texts, documents, articles, news, newsletters, posts, commentaries, data, photographs, pictures, graphic works, video, or images.
- PAYMENT TERMS AND SECURITY BOND
- Customer will pay the agreed Hire Fee to Magical Nights in advance of the delivery of the Equipment to the Customer’s Site. Customer must pay a fifty percent (50%) deposit at the time of the Booking with the balance of the Hire Fee to be paid in full on or before the Hire period.
- In addition, Customer must pay a refundable security bond (“Security Bond”) in the amount of $150.00 before or on the day of the Event.
- Travelling to and from the Site is included in the Hire Fee if delivery of the Equipment is within 25km of Northern Beaches Mackay region. If the Site is not located within 25km of the Northern Beaches Mackay region, then the following applies:
- if travel is 25km – 45km out of the Northern Beaches Mackay region, a travel fee of $25.00 each way will apply;
- if travel is 45km – 65km out of the Northern Beaches Mackay region, a travel fee of $40.00 each way will apply;
- if travel is more than 65km out of the Northern Beaches Mackay region, Magical Nights will negotiate a travel fee with the Customer.
- Customer is responsible and liable for the entire payment of the Hire Fee and the Security Bond. If timely payment of the Hire Fee and Security Bond is not made in advance of the Event, then Magical Nights reserves the right to withhold delivery of the Equipment until payment is made in full of both the Hire Fee and the Security Bond.
4.5 Customer is responsible for any damage to the Equipment and the cost of cleaning the Equipment. The Security Bond will be refunded to Customer when the Customer returns the Equipment to Magical Nights in good working order and in a clean condition. The return of the Security Bond to Customer is conditional on the Equipment being returned to Magical Nights in good working order and in a clean condition otherwise Customer forfeits the Security Bond.
4.6 Should the cost of replacement or repair or cleaning exceed the Security Bond, Customer agrees to promptly pay any additional amounts to cover the extra cost incurred by Magical Nights.
- Magical Nights accept payments in the following methods:
- direct deposit;
- cash; or
- EFTPOS facilities.
- Magical Nights may from time to time vary its fees and offer additional or optional services by notice on our Website. Equipment is hired on a daily basis rate subject to what is advertised on our Website. In the absences of arrangements to the contrary, Equipment is hired on a daily rate. The minimum charge for any hiring will be the rate for one day irrespective of the length of hire.
4.9 All payments for our Services are in Australian Dollars (AUD). We will be entitled to add on GST for the supply of our Services.
- CUSTOMER OBLIGATIONS
- Customer must take care not to damage the Equipment and agrees that all damages and costs will be for the Customer’s responsibility. Customer must not tamper with, damage or repair the Equipment. During the Hire Period, it is the Customer’s responsibility to ensure the Equipment is protected from theft, loss or damage.
- Customer agrees that before accepting the Equipment, that Customer has satisfied itself as to the suitability, condition and fitness of the Equipment for Customer’s intended purpose. Customer agrees that Magical Nights makes no representations and gives no guaranty or warranty that the Equipment is suitable for Customer’s intended purpose.
- Customer must not allow or authorise any other person to use or take possession of the Equipment at any time.
- Customer must use the Equipment safely and in strict accordance with all laws and in accordance with Magical Night’s instructions.
- Customer must ensure that no person using or operating the Equipment is under the influence of drugs or alcohol or carrying prohibited or dangerous substances in or around the Equipment.
- Customer must abide by all safety signs and instructions as required by law and in accordance with the instructions and signs of Magical Nights.
- Customer must provide a flat surface for tent and outdoor cinema hire equipment in accordance with the following size requirements:
- minimum of 6.5 x 6.5m for the 5m bell tent
- minimum of 5.5 x 5.5m for the 4m bell tent
5.8 Customer must ensure there are no obstructions on the Site. Magical Nights reserves the right to refuse set up of the Equipment if Magical Nights in its sole discretion considers or deems the Site area is unsuitable, unsafe or could cause damage to the Equipment.
5.9 Customer authorises Magical Nights to bring its vehicle onto the Site to deliver Equipment at the start of the Hire Period and to pick up the Equipment at the end of the Hire Period. Magical Nights will take every care but disclaims any liability for damage to the Site or any property at the Site when it delivers the Equipment and when it picks up the Equipment.
- Customer must return the Equipment in good working order and in a clean and tidy condition both inside and out. Customer agrees to only use light detergent solutions to clean the Equipment and not to use any solvents or chemicals on the Equipment.
5.11 A cleaning charge applies to any Equipment or linen returned in a stained or excessively dirty/unclean condition at the cost of $20.00 per unit. A minimum cost of $50.00 will apply if any hire tent is left excessively dirty with food, drink, grass, dirt, sand or other mess left inside the tent that will require additional cleaning by Magical Nights. All equipment including any linen items must be returned dry.
5.12 Smoking, the burning of candles or the use of sharp objects at Events is prohibited in or near any of the Equipment including in the hired tents. Customer agrees that any damage caused to the Equipment by fire or sharp objects will be charged to Customer at full replacement value.
- Customers must provide their own sleeping pillows due to hygiene reasons and the risk of head lice. The decorative cushions that Magical Nights supplies as part of the Equipment must not be used as sleeping pillows for hygiene reasons. Magical Nights washes and sanitizes all linen and beddings after each use. Magical Nights disclaims any responsibility for skin allergies that occur from washing powders or sanitisers. Magical Nights encourages Customer to ensure that sleeping pillows are not shared.
- Customer must ensure that the delivery address for the Equipment is the same as the pick-up address for the specified date of pick-up.
- The Equipment will at all times remain the property of Magical Nights. Customer has no legal or equitable interest in the Equipment. Customer’s possession of the Equipment upon delivery for the Hire Period will be as bailee.
6.2 Customer must inspect the Equipment at delivery to determine whether it is fit for its specified purpose and that Equipment corresponds to its description. Customer must notify Magical Nights immediately if Equipment is damaged, missing, or otherwise unfit for its specified purpose. Subject to the guarantees under the ACL, Customer is deemed to have accepted the Equipment unless Customer notifies Magical Nights to the contrary at delivery.
6.3 Customer must ensure clear access to the Site for delivery of the Equipment and that the Site is fit for the use of the Equipment. If the Site is unsuitable or unsafe for the use of the Equipment, Customer remains liable for payment of the full Hire Fee.
- It is Customer’s responsibility to comply with any laws and regulations for the hire of the Equipment including that of local council and any notices that must be given or permissions that must be obtained.
6.5 Customer must ensure that the Site is safe for the installation and use of the Equipment and that Equipment is installed and used in accordance with all Occupational Health and Safety laws relating to the Equipment.
6.6 Customer must ensure that someone is available to take delivery of the Equipment on the agreed day and time for delivery. Customer is liable for full payment of the Hire Fee if there is no one available at the Site to take delivery on the agreed day and time.
6.7 Customer is liable for any costs suffered by Magical Nights due to damage, theft, or vandalism, of the Equipment while in the possession of Customer during the Hire Period. This liability of Customer includes any damage to Equipment caused by the weather or climate conditions.
6.8 Magical Nights may take all steps necessary (including legal action) to recover the Equipment including entering the Site to do so. Customer authorises Magical Nights to enter Customer’s premises or the Site for the purposes of recovering the Equipment upon receiving written notice from Magical Nights.
7.1 It is the responsibility of Customer to maintain its own insurance policies to adequately protect and cover against any costs or claims arising out of any theft or damage to the Equipment, or against any injury or death caused by the hire or use of the Equipment by Customer.
7.2 Customer is responsible for the security of the Equipment at all times during the Hire period. Any Equipment that is lost, damaged or destroyed, will be charged to Customer at full replacement value.
- CANCELLATION POLICY
8.1 Customer may cancel these Terms at any time prior to the delivery of the Equipment to Customer subject to paying the cancellation fees below:
- If Customer gives at least 48 hours’ notice in advance of the delivery date, Customer is entitled to a full refund of the 50% booking deposit of full Hire Fee if already paid in advance.
- If Customer gives less than 48 hours’ notice in advance of the delivery date, then Customer forfeits the full 50% booking deposit to Magical Nights.
8.2 Magical Nights has the right to cancel a delivery of the Equipment for the Event at short notice if weather conditions are severe with storms, lightning, heavy showers or rain or strong wind warnings forecast. In the event that a Customer booking is cancelled by Magical Nights because of weather conditions, Magical Nights will endeavour to reschedule the event to a suitable date. If this is not possible, Magical Nights will provide a full refund of the 50% booking deposit or Hire Fee if already paid by the Customer prior to the cancellation.
- REFUND POLICY
- We process refunds in accordance with the Australian Consumer Law. Except as required by law, any fees paid by you are final and non-refundable.
- You may reject the Services if you consider that the Services are defective or fail to comply with the statutory guarantees under the Australian Consumer Law. Refunds are not available for buyer’s remorse.
- You must inform us of any issues by written notice within 14 calendar days of the delivery of the Equipment or any part of the Services.
- The following process will apply:
- we will investigate the complaint and agree with you the process (Rectification Process) required to complete the supply and delivery of the Services to a satisfactory standard.
- If the Services are found to be defective (Rejected Services), at our option we may elect:
(i) to supply the Services again, or
(ii) to replace the Services or the supply of equivalent Services, or
(iii) to correct the Services or to make payment for having the Services corrected, or
(iv) to pay the cost of replacing the Services or of acquiring equivalent Services.
- We will only facilitate a refund in accordance with the Australian Consumer Law, or, if we determine, in our absolute discretion, it is reasonable to do so.
- INTELLECTUAL PROPERTY
- You acknowledge that all Intellectual Property Rights relating to the Site or our Services is the property of, licensed by or vest on creation in Magical Nights.
- The Works on the Site or generated by or related to any of our Services are subject to copyright and owned by Magical Nights.
- “Magical Nights” and all associated trade marks on the Site are our trade marks or any related entities. You must not use our trade marks:
- in or as the whole or part of your own trade marks;
- in connection with activities, products or services which are not ours; or
- in a manner which may be confusing, misleading or deceptive.
- FORCE MAJEURE
11.1 If Magical Nights is unable to perform any of its obligations under this contract whether wholly or partly by reason of any cause beyond Magical Nights control (including and without limitation to any acts of God, unsuitable weather conditions, interference by authorities, fires, or unforeseeable events),Magical Nights shall give notice to Customer as soon as practical, in which case any and all obligations of Magical Nights arising from these Terms are suspended immediately for the entire period of the force majeure.
11.2 Magical Nights is not liable for any damage or loss suffered by Customer arising from the force majeure. You agree that we have no responsibility or liability for any loss or expense suffered or incurred by you because of Magical Nights not acting for so long as the force majeure continues.
- These Terms will continue to apply until terminated by either you or by us as set out below.
12.2 We may terminate these Terms without notice to you if:
- you have breached any provision of the Terms; or
- if we believe you are making unauthorised or improper use of the Equipment or our Services.
12.3 In the event of termination, Magical Nights shall immediately be entitled to retake possession of the Equipment.
13. LIMITATION OF LIABILITY
13.1 To the extent permissible at law, Magical Nights is not liable for any direct, indirect, punitive, incidental, special, consequential damages including without limitation any Claims, Losses, Liability, loss of profits, revenue, business or goodwill arising out of or in any way connected with the provision of or failure to provide any products or services under these Terms. Except as provided in these Terms, we exclude all representations and warranties relating to the subject matter of these Terms, our Site and the use and supply of our Equipment and Services.
13.2 Our Services are provided “as is” and specific results cannot be guaranteed. It is the sole responsibility of Customer to determine that the Services, the Equipment or any part of these meet Customers’ needs or are otherwise suitable for the purposes for which they are used.
13.3 These Terms are to be read subject to any legislation that prohibits or restricts the exclusion, restriction or modification of any implied warranties, conditions, guarantees or obligations. If such legislation applies, to the extent possible Magical Nights limits our liability as follows, at our option:
- for any claims relating to these Terms, to the fees payable under this agreement (if applicable) for the preceding one (1) month;
- in the case of products including any digital products (a) the replacement of the products or the supply of equivalent products; (b) the repair of the products; (c) the payment of the cost of replacing the products or of acquiring equivalent products; or (d) the payment of having the products repaired; or
- in the case of services, the supply of the services again or the payment of the cost of having the services supplied again.
- This clause survives the termination or expiry of these Terms for whatever reason.
14.1 Customer agrees to defend, indemnify and hold Magical Nights, our affiliates, employees, agents, contributors, third party content providers and licensors harmless from and against all actions, suits, Claims, demands, Liabilities, costs, expenses, Losses and damage (including legal fees on a full indemnity basis) brought against or sustained by Magical Nights, which:
- is directly or indirectly caused by Customer’s breach of these Terms;
- is directly or indirectly caused by any wilful, reckless or negligent act of Customer;
- concerns personal injury to any person caused or contributed to by Customer;
- is caused by Customer’s act or omission and constitutes a Loss of or damage to property;
- is brought by any third-party in respect of personal injury, death or damage to third-party property and arises from Customer’s act or omission; or
- arises from Customer’s act or omission.
14.2 Except as required by law, Magical Nights will not be liable for any Claim, Loss or Liability for personal injury, death or damage to Customer or its property however it may be caused.
14.3 Magical Nights reserve the right, at our own expense, to assume the exclusive defence and control of any matter otherwise subject to indemnification by you, and in such case, you agree to cooperate with our defence of such claim.
14.4 In no event will Magical Nights be liable to Customer for any indirect, incidental or consequential damages including, without limitation, indirect, special, punitive, or exemplary damages.
15.1 If a dispute arises out of or relates to the Terms as between us and you, either party may not commence any Tribunal or Court proceedings in relation to the dispute, unless the following clauses have been complied with (except where urgent interlocutory relief is sought):
- Compulsory process. A party may not start arbitration or court proceedings (except proceedings seeking interlocutory relief) in respect of a dispute arising out of these Terms (Dispute) unless it has complied with this clause.
- Notification. A party claiming that a Dispute has arisen may notify each other party to the Dispute giving details of the Dispute.
- Initial period – efforts to resolve Dispute. During the 30-calendar day period after a notice is given (or longer period agreed in writing by the parties to the Dispute) (Initial Period) each party to the Dispute (Disputant) covenants with the other to cooperate and take all reasonable steps necessary to attempt to resolve the Dispute.
- Mediation. If the Disputants are unable to resolve the Dispute within the Initial Period, each Disputant agrees that the Dispute shall be referred for mediation, at the request of any Disputant, to:
- a mediator agreed on by the Disputants; or
- if the Disputants are unable to agree on a mediator within seven days after the end of the Initial Period, then the Disputants must submit the Dispute for mediation through the Chair of Resolution Institute (ACN 008 651 232) or the Chair’s designated representative and the Resolution Institute Mediation Rules shall apply to the mediation.
- Role of mediator. The role of any mediator is to assist in negotiating a resolution of the Dispute. A mediator may not make a decision that is binding on a Disputant unless that Disputant has so agreed in writing.
- Data. Any information or documents disclosed by a Disputant under this clause shall be kept confidential and may not be used except to attempt to resolve the Dispute.
- Costs of mediation. Each Disputant shall pay its own costs. The Disputants may pay equally the costs of any mediator engaged.
- The mediation will be held in Queensland, Australia.
- Failure to resolve. After the Initial Period, a Disputant that has complied with this section may terminate the dispute resolution process by giving notice to each other Disputant. A party to a Dispute will only be entitled to pursue other remedies available to it at law or otherwise, if the parties have failed to resolve the Dispute within thirty (30) calendar days after commencement of dispute resolution.
16. NO WAIVER
16.1 Any failure on our part to enforce any right or provision of these Terms will not constitute a waiver of future enforcement of that right or provision.
17. ENTIRE AGREEMENT
17.1 Unless otherwise stated, these Terms and the relevant Agreement (s) shall constitute the entire agreement you and us in relation to your use of the Site and our Services.
18.1 If any part of provision of these Terms is invalid, unenforceable or in conflict with the law, that part or provision is replaced with a provision which, as far as possible, accomplishes the original purpose of that part of the provision otherwise it is to be read down or severed to the extent necessary without affecting the validity or enforceability of the remaining provisions.
19. LAW AND JURISDICTION
19.1 The Terms and information on this Website are governed by and construed in accordance with the laws of the State of Queensland, Australia. You submit to the non-exclusive jurisdiction of the Courts of Queensland and Courts of Appeal from them for determining any dispute concerning these Terms.
20. HOW TO CONTACT US
20.1 This Site is owned and operated by Magical Nights (ABN 89 332 413 478).
20.2 Our principal place of business is at Bucasia QLD 4750 Australia.
20.3 You can contact us by:
- by email using the following email address: firstname.lastname@example.org
- by telephone: 0416 378 337
© 2018 Magical Nights. All Rights Reserved.
Terms last updated April 2018.