Conditions of Equipment Hire
- Definitions
- “MM” means Mini Mozarts School Of Music Pty Ltd ATF Di Giacomo Family Trust T/A Mini Mozarts School Of Music, its successors and assigns or any person acting on behalf of and with the authority of Mini Mozarts School Of Music Pty Ltd ATF Di Giacomo Family Trust T/A Mini Mozarts School Of Music.
- “Guardian” means the parent/s and/or legal Guardian/s of the Student requesting from MM, the provision of Lessons and/or Equipment hire to the Student, and if there is more than one person requesting the provision of Lessons/Equipment hire to the Student, is a reference to each person jointly and severally.
- “Guarantor” means that person (or persons), or entity, who agrees to be liable for the debts of the Guardian/Student on a principal debtor basis.
- “Student” means an individual currently enrolled or applying for enrolment with MM.
- “Child” means an individual currently enrolled or applying for enrolment with MM who is aged under eighteen (18) years (where the context so permits, the terms Student and Child may be used interchangeably).
- “Lessons” means the services provided by MM to the Student, and:
- includes any training, advice or recommendations;
- where the context so permits shall include any Resources (such as any instrument (and associated case), consumables, course books, music sheets, etc.) supplied, consumed, created or deposited incidentally by MM in the course of it conducting, or providing to the Student, Lessons;
- are as described on any Invoice/Enrolment Form/Hire Form, or any other form provided by MM to the Student;
- are conducted on the basis of an automatic booking system “auto-booking” which is periodic and ongoing term-to-term in term blocks (except where any provisions of clause 5 apply).
- “Equipment” means all Instruments (and related Equipment and Resources, including but not limited to, any associated cases, accessories, course manuals, music books/sheets, consumables etc.) supplied on hire by MM to the Student (and where the context so permits shall include any supply of Services). The Equipment shall be as described on the Invoice/Enrolment Form/Hire Form, or any other form provided by MM to the Student.
- “Fee” means the charges payable for the Lessons (and/or any joining/re-joining fees), as agreed between MM and the Student/Guardian in accordance with clause 4 of this contract.
- Acceptance
- The Student/Guardian is taken to have exclusively accepted and is immediately bound, jointly and severally, by these terms and conditions, if the Student/Guardian completes and signs MM’s Enrolment Form/Hire Form/Appendix and/or if the Student partakes in Lessons provided by MM.
- These terms and conditions may only be amended with both parties consent in writing and shall prevail to the extent of any inconsistency with the Enrolment Form, any other document or agreement between the Student/Guardian and MM.
- None of MM’s employees, agents or representatives are authorised to make any representations, statements, conditions, views, opinions or agreements not expressed by the Director of MM in writing, nor is MM bound by any such unauthorised statements.
- Under the Children and Young Persons Act 1989 MM’s staffs is a mandatory reporter and as such are obliged to report any suspected incidents of child abuse or mistreatment to the licensing body.
- Any employees, agents or representatives engaged by MM are bound by MM’s privacy policy in respect of disclosure and thereby are carefully investigated during the assessment process for a new position to satisfy MM’s legal obligation; for example, in relation to child protection legislation.
- The Student/Guardian acknowledges and accepts that teachers may change from time to time and that enrolment with MM is based on music school itself and not any specific teacher.
- This agreement shall commence on the date which both parties agree that the Lessons will be made available to Student, for the Student’s use (“Start Date”), unless the Services are delayed by any reason beyond MM’s control. In absence of an agreed Start Date, this agreement will be deemed to have commenced ten (10) days after this agreement is signed by the Student/Guardian, and MM will be entitled to start billing the Student/Guardian for the Services from the Start Date.
- The Services shall continue for a contract period, or as otherwise stipulated in this agreement and, upon expiration of this term, will continue on an ongoing basis, unless terminated in accordance with clause 14.
- Subject to clause 14, if the Student/Guardian wishes to terminate the Services during the term stipulated, MM will charge the Student/Guardian an early termination fee, the amount of which will depend on the Services acquired by the Student/Guardian and the date of termination.
- Electronic signatures shall be deemed to be accepted by either party providing that the parties have complied with Section 9 of the Electronic Transactions (Victoria) Act 2000 or any other applicable provisions of that Act or any Regulations referred to in that Act.
- These terms and conditions are to be read in conjunction (where necessary) with MM’s Hire Form, and:
- where the context so permits, the terms ‘Goods’ or ‘Services’ shall include any supply of Equipment, as defined in clause 7; and
- if there are any inconsistencies between the two documents then the terms and conditions contained therein shall prevail.
- Change in Control
- The Student/Guardian shall give MM not less than fourteen (14) days prior written notice of any proposed change in the payment arrangements and/or any change (in circumstances) to the details as outlined in the Enrolment Form; including, but not limited to, change of name, address, email, contact number/s of the Student/Guardian, and/or any changes or developments in the Student’s medical history that should be brought to MM’s attention. The Student/Guardian shall be liable for any loss incurred by MM as a result of the Student/Guardian’s failure to comply with this clause.
- Fee and Payment
- At MM’s sole discretion, the Fee shall be as indicated:
- on the Invoice/Enrolment Form/Hire Form or otherwise specified, in respect of Lessons provided, and charged at MM’s current rate according to MM’s current Fee Structure; or
- on any invoice provided by MM.
- At MM’s sole discretion, a non-refundable deposit shall be required on confirmation of the Student’s enrolment with MM.
- Time for payment for the Lessons being of the essence, the Price will be payable by the Student/Guardian on the date/s determined by MM, which may be:
- before provision of the Lessons;
- by way of instalments/payments in accordance with MM’s payment schedule (any outstanding Fees due and payable at the end of term must be paid in full prior to commencement of the new school term. A Direct Debit form must be completed and will be implemented should the full Fees not be paid less than three (3) weeks before the current term ends;
- the date specified on any invoice or other form as being the date for payment; or
- failing any notice to the contrary, the date which is seven (7) days following the date of any invoice given to the Student/Guardian by MM.
- Payment may be made by cash, eftpos, credit card, direct debit, or by any other method as agreed to between the Student/Guardian and MM.
- Ongoing Direct Debit Authorities will (where applicable) run for the current term pending in advance and shall continue until such time as MM is instructed to cancel. Deduction amounts will be calculated on the current term (i.e. nine (9) or eleven (11) weeks respectively), changes during the current term of days will be adjusted at the end of the current term as either a credit or refund difference.
- Receipt by MM of any form of payment other than cash shall not be deemed to be payment until that form of payment has been honoured, cleared or recognised, and until then MM’s ownership or rights in respect of the Lessons, and this contract, shall continue.
- Unless otherwise stated the Fee does not include GST. In addition to the Fee the Student/Guardian must pay to MM an amount equal to any GST MM must pay for any provision of Lessons or hire of Equipment by MM to the Student under this or any other contract. The Student/Guardian must pay GST, without deduction or set off of any other amounts, at the same time and on the same basis as the Student/Guardian pays the Fee. In addition, the Student/Guardian must pay any other taxes and duties that may be applicable in addition to the Fee, except where they are expressly included in the Fee.
- Payment terms are ongoing to reflect the auto-booking system utilised by MM as defined in clause 6(d).
- The Fee remains payable in full where the Student is absent through illness or for any other reason. In the event the Lessons fall on a public holiday, the Lessons will (at MM’s sole discretion) either be rescheduled at a subsequent date/time during the applicable term, or cancelled and the Fees with be adjusted pro-rata.
- In the event of the Student’s expulsion, dismissal or voluntary withdrawal from the Lessons, MM shall not be obligated to refund Fees paid, and the Student shall be liable for the payment of any outstanding Fees for the remaining period of the applicable term.
- The Student/Guardian acknowledges and agrees that:
- the Student’s/Guardian’s obligations to MM for the provision of Lessons shall not cease until:
- the Student/Guardian has paid MM all amounts owing to MM; and
- the Student/Guardian has met all other obligations due thereby to MM in respect of all contracts between the parties.
- continual or habitual lateness in payment of the Fee could jeopardise the Student’s enrolment with MM.
- the Student’s/Guardian’s obligations to MM for the provision of Lessons shall not cease until:
- At MM’s sole discretion, the Fee shall be as indicated:
- Provision of the Lessons
- Both parties agree that they shall make every endeavour to enable the Lessons to be provided/partaken in at the time and place as was arranged between both parties. In the event that MM is unable to provide Lessons as agreed solely due to any action or inaction of the Student/Guardian then MM shall be entitled to charge an additional Fee for re-providing the Lessons at a subsequent date/time during the applicable term.
- Any amendments to an existing booking arrangement must be submitted via MM’s website.
- It is the Student’s/Guardian’s responsibility to arrange the re-scheduled lesson. Where a Student cannot attend a Lesson, the Student/Guardian must notify MM (via the website) at least twenty four (24) hours in advance of that lessons scheduled start time to arrange a ‘make-up’ Lesson.
- Only one (1) make-up lesson is allowed per Student, per term; is not transferable for cash or transferable to outside of the current term and cannot be deducted/set-off for any other fees owing under this agreement. In the absence of any said notice of non-attendance, that Lesson is forfeited and MM is under no obligation to provide a make-up Lesson.
- Re-scheduled Lessons or make-up Lessons times cannot be cancelled or changed once arranged, or that Lesson will be forfeited. Furthermore, any make-up Lesson must be used within the term; Lessons will not be carried over to the next term.
- Where a schedule day is booked for the term and the Student/Guardian subsequently wishes to change that day (providing the new day is available) the appropriate notice period of four (4) weeks) must be given, prior to the end of term, failure to comply will result in the Student/Guardian being liable for the next terms Fees.
- There is no make-up lesson allowance for group classes/ensembles/bands or any form of tuition that involves more than one (1) Student.
- Any unused lessons will not be re-scheduled and cannot be made up in school holiday periods.
- The Student/Guardian acknowledges and accepts that MM accepts no responsibility for any loss or damage to personal property brought to and/or left at MM’s premises.
- Hire of Equipment/Provision of Resources
- The Equipment/Resources shall, at all times, remain the property of MM, and are returnable on demand thereby. In the event that the Equipment/Resources are not returned to MM:
- in the condition in which they originally supplied, MM retains the right to charge the Student/Guardian the full cost of repairing (or replacing if required) the Equipment/Resources; or
- at all, MM shall have right to charge the Student/Guardian the full cost of replacing the Equipment/Resources.
- The Student/Guardian shall ensure that:
- the Equipment/Resources are in their own possession and control and shall not assign the benefit of the Equipment/Resources, nor be entitled to a lien over the Equipment/Resources;
- no alterations or additions are made to the Equipment/Resources (including but without limitation, defacing or erasing any identifying mark, plate or number on, in or attached to the Equipment/Resources) or in any other manner whatsoever, interfere with the Equipment/Resources;
- the Equipment/Resources (complete with all accessories and parts etc.) are kept clean and in good order as originally supplied, and shall comply with any maintenance schedule as advised by MM.
- the Equipment remains at the address that has been agreed to by MM and shall not move the Equipment from this location unless prior written authorisation has been provided by MM.
- The Student/Guardian accepts full responsibility for the safekeeping of the Equipment/Resources and agrees to insure, or self-insure MM’s interest in the Equipment/Resources, and further agrees to indemnify MM against physical loss or damage including, but not limited to, the perils of accident, fire, theft and burglary and all other possible risks; and will effect adequate Public Liability Insurance covering any loss, damage or injury to property or persons arising out of the use of the Equipment. Furthermore, the Student will not use the Equipment/Resources, nor permit them to be used, in such a manner as would permit an insurer to decline any claim.
- The Equipment/Resources shall, at all times, remain the property of MM, and are returnable on demand thereby. In the event that the Equipment/Resources are not returned to MM:
- Attendance and Punctuality
- It is recommended by MM that the Student arrives five (5) minutes prior to the scheduled starting time of the Lesson.
- It is the responsibility of the Student/Guardian to advise if the Student is to be absent as soon as is practically possible, and inform MM of the estimated length of absence.
- Casual and/or Trial Lessons are subject to MM’s availability, failure to attend a scheduled Lesson will result in the chargeable Fee being forfeited in lieu of absence.
- The Student will not be able to attend Lessons for any period of time during which:
- the Student is suffering from a disease or condition which is contagious through normal social contact; or
- a medical practitioner has recommended the Student not attend.
- Emergency Contacts
- The Student/Guardian must provide MM with the names and addresses of two (2) responsible persons over the age of eighteen (18) years who can collect the Student in case of an emergency or illness. When contacted by the Director of MM (or their delegate), the Student/Guardian (or a responsible person authorised thereby) must go immediately to MM’s premises to collect the sick or injured Student.
- Accident or Emergency
- Whilst every reasonable effort shall be made by MM to contact the Student/Guardian (or Emergency Contacts) in the event of an accident or emergency, the Student/Guardian hereby gives authority to the Director of MM (or their delegate) to, on behalf of the Student/Guardian, authorise the administration of medication, transportation to hospital and administration of treatment as is recommended by the Student’s doctor, any attending doctor, ambulance officer, police or Government Officer. The Student/Guardian will be responsible for any costs incurred as a result of transportation or treatment.
- Intellectual Property
- Where MM has designed, drawn, written, or created programs, techniques and curriculum in relation to the Student, then the copyright in those designs, drawings, documents, programs, techniques and curriculum shall remain vested in MM, and shall only be used by the Student/Guardian at MM’s discretion.
- Consents
- Unless expressly requested otherwise in writing, the Student/Guardian permits MM to photograph or video record the Student for quality assurance, safety, assessment, planning, evaluation, documentation, promotional or marketing purposes (including but not limited to social media, newsletters and slideshows, and DVD’s for display in the centre and/or gifts to parents), or to be used within MM (as well as on MM’s website), and/or local and national newspaper stories.
- Complaints and Grievance Policy
- The Student/Guardian shall be entitled to report any concern they may have in relation to Lessons and/or the hire of Equipment, any matters of safety, care or quality of services, or where the Student/Guardian wishes to make a suggestion. These shall be addressed with the appropriate MM staff member, or if the complaint is in relation to any of the staff, to the Director of MM, where in most incidences the issue can be rectified.
- All complaints must be made to MM in writing and will be acknowledged by MM (in writing) within seven (7) days of receipt. MM will take all reasonable steps to resolve any complaint within thirty (30) days of receipt of the complaint.
- Where the complaint is in relation to any staff member of MM:
- the complaint, and the identity of the complainant, will be kept confidential between the parties concerned;
- a written record of events will be documented by MM’s director, in order to authenticate, monitor and evidence the complaint;
- all compiled written information will be considered by the Director of MM to enable an informed decision to be made regarding the complaint;
- the complainant and applicable staff member(s) will be advised of the outcome of the investigation and any disciplinary action, which will be managed in accordance with the Fair Work Act 2009, etc.;
- in the event the complainant is unsatisfied with the outcome of the investigation, MM’s management and the complainant shall confer to discuss the matter further;
- if the complainant is still not satisfied with the outcome, they are within their rights to contact the Department of Education and/or the Australian Competition and Consumer Commission.
- Default and Consequences of Default
- Interest on overdue invoices shall accrue daily from the date when payment becomes due, until the date of payment, at a rate of two and a half percent (2.5%) per calendar month (and at MM’ sole discretion such interest shall compound monthly at such a rate) after as well as before any judgment.
- If the Student/Guardian owes MM any money the Student/Guardian shall indemnify MM from and against all costs and disbursements incurred by MM in recovering the debt (including but not limited to internal administration fees such as late payment fees, legal costs on a solicitor and own client basis, contract default fee, and bank dishonour fees).
- Without prejudice to any other remedies MM may have, if at any time the Student/Guardian is in breach of any obligation (including those relating to payment) under these terms and conditions MM may suspend or terminate the provision of Lessons and/or hire of Equipment to the Student. MM will not be liable to the Student/Guardian for any loss or damage the Student/Guardian suffers because MM has exercised its rights under this clause.
- Without prejudice to MM’s other remedies at law MM shall be entitled to cancel all or any part of any order of the Student/Guardian which remains unfulfilled and all amounts owing to MM shall, whether or not due for payment, become immediately payable if:
- any money payable to MM becomes overdue, or in MM’ opinion the Student/Guardian will be unable to make a payment when it falls due;
- the Student/Guardian becomes insolvent/bankrupt, convenes a meeting with its creditors or proposes or enters into an arrangement with creditors, or makes an assignment for the benefit of its creditors; or
- a receiver, manager, liquidator (provisional or otherwise) or similar person is appointed in respect of the Student/Guardian or any asset of the Student/Guardian.
- Termination of Enrolment
- The Student/Guardian must provide MM at least four (4) weeks advance notice prior to the end of the current term of any termination of enrolment; that notice must be via MM’s Termination of Enrolment Form and must be submitted through MM’s website. Failure to comply with this clause shall entitle MM to bill Fees accordingly for the next term, as it shall be considered that the enrolment is to continue.
- The termination notice period commences from the date it is lodged with MM.
- In the event the Student/Guardian attempts to serve notice in accordance with clause 1 but cannot due to website failure, the Student/Guardian must contact MM via email immediately to request MM to email a copy of the Termination of Enrolment Form to the Student/Guardian’s email address for notices.
- If the Student does not attend Lessons during the notice period, the Student/Guardian is still obligated to pay the applicable Fees.
- Where that notice is given anytime which is less than four (4) weeks from the end of term, the remainder of that four (4) week termination notice period will roll over into the subsequent term and all respective notice period fees due will remain payable to MM under this agreement.
- MM may cancel these terms and conditions and/or terminate the Student’s enrolment with MM at any time by giving written notice to the Student/Guardian. MM shall not be liable for any loss (including, but not limited to, loss of income) arising from such termination.
- The Commonwealth Competition and Consumer Act 2010 (“CCA”) and Fair Trading Acts (“FTA”)
- Nothing in this contract is intended to have the effect of contracting out of any applicable provisions of the CCA or the FTA in each of the States and Territories of Australia (including any substitute to those Acts or re-enactment thereof), except to the extent permitted by those Acts where applicable.
- Privacy Act 1988
- The Student/Guardian and/or Guarantor/s agrees for MM to obtain from a credit reporting body (CRB) a credit report containing personal credit information (e.g. name, address, D.O.B, occupation, previous credit applications, credit history) about the Student/Guardian and/or Guarantor/s in relation to credit provided by MM.
- The Student/Guardian and/or Guarantor/s agrees that MM may exchange information about the Student/Guardian and/or Guarantor/s with those credit providers and with related body corporates for the following purposes:
- to assess an application by the Student/Guardian; and/or
- to notify other credit providers of a default by the Student/Guardian; and/or
- to exchange information with other credit providers as to the status of this credit account, where the Student/Guardian is in default with other credit providers; and/or
- to assess the creditworthiness of the Student/Guardian and/or Guarantor/s including the Student/Guardian’s and/or Guarantor/s repayment history in the preceding two years.
- The Student/Guardian consents to MM being given a consumer credit report to collect overdue payment on commercial credit.
- The Student/Guardian agrees that personal credit information provided may be used and retained by MM for the following purposes (and for other agreed purposes or required by):
- the provision of Lessons; and/or
- analysing, verifying and/or checking the Student/Guardian’s credit, payment and/or status in relation to the provision of Lessons; and/or
- processing of any payment instructions, direct debit facilities and/or credit facilities requested by the Student/Guardian; and/or
- enabling the collection of amounts outstanding in relation to the Lessons.
- MM may give information about the Student/Guardian to a Credit Reporting Bureau (CRB) for the following purposes:
- to obtain a consumer credit report;
- allow the CRB to create or maintain a credit information file about the Student/Guardian including credit history.
- The information given to the CRB may include:
- personal information as outlined in 1 above;
- name of the credit provider and that MM is a current credit provider to the Student/Guardian;
- whether the credit provider is a licensee;
- type of consumer credit;
- details concerning the Student/Guardian’s application for credit or commercial credit (e.g. date of commencement/termination of the credit account and the amount requested);
- advice of consumer credit defaults, overdue accounts, loan repayments or outstanding monies which are overdue by more than sixty (60) days and for which written notice for request of payment has been made and debt recovery action commenced or alternatively that the Student/Guardian no longer has any overdue accounts and MM has been paid or otherwise discharged and all details surrounding that discharge (e.g. dates of payments);
- information that, in the opinion of MM, the Student/Guardian has committed a serious credit infringement;
- advice that the amount of the Student/Guardian’s overdue payment is equal to or more than one hundred and fifty dollars ($150).
- The Student/Guardian shall have the right to request (by e-mail) from MM:
- a copy of the information about the Student/Guardian retained by MM and the right to request that MM correct any incorrect information; and
- that MM does not disclose any personal information about the Student/Guardian for the purpose of direct marketing.
- MM will destroy personal information upon the Student/Guardian’s written request (including by e-mail) or if it is no longer required unless it is required in order to fulfil the obligations of this contract or is required to be maintained and/or stored in accordance with the law.
- The Student/Guardian can make a privacy complaint by contacting MM in writing or via e-mail. MM will respond to that complaint within seven (7) days of receipt and will take all reasonable steps to make a decision as to the complaint within thirty (30) days of receipt of the complaint. In the event that the Student/Guardian is not satisfied with the resolution provided, the Student/Guardian can make a complaint to the Information Commissioner at www.oaic.gov.au.
- General
- The failure by either party to enforce any provision of these terms and conditions shall not be treated as a waiver of that provision, nor shall it affect that party’s right to subsequently enforce that provision. If any provision of these terms and conditions shall be invalid, void, illegal or unenforceable the validity, existence, legality and enforceability of the remaining provisions shall not be affected, prejudiced or impaired.
- These terms and conditions and any contract to which they apply shall be governed by the laws of Victoria, the state in which MM has its principal place of business, and are subject to the jurisdiction of the Melbourne Courts in that state.
- Subject to clause 15, MM shall be under no liability whatsoever to the Student/Guardian for any indirect and/or consequential loss and/or expense (including loss of profit) suffered by the Student/Guardian arising out of a breach by MM of these terms and conditions (alternatively MM’s liability shall be limited to damages which under no circumstances shall exceed the Fee).
- The Student/Guardian shall not be entitled to set off against, or deduct from the Fee, any sums owed or claimed to be owed to the Student/Guardian by MM nor to withhold payment of any invoice because part of that invoice is in dispute.
- MM may licence and/or assign all or any part of its rights and/or obligations under this contract without the Student/Guardian’s consent.
- The Student/Guardian cannot licence or assign without the written approval of MM.
- MM may elect to subcontract out any part of the Services but shall not be relieved from any liability or obligation under this contract by so doing. Furthermore, the Student/Guardian agrees and understands that they have no authority to give any instruction to any of MM’s sub-contractors without the authority of MM.
- The Student/Guardian agrees that MM may amend these terms and conditions at any time. If MM makes a change to these terms and conditions, then that change will take effect from the date on which MM notifies the Student/Guardian of such change. The Student/Guardian will be taken to have accepted such changes if the Student/Guardian makes a further request for MM to provide Lessons to the Student.
- Neither party shall be liable for any default due to any act of God, war, terrorism, strike, lock-out, industrial action, fire, flood, storm or other event beyond the reasonable control of either party.
- Both parties warrant that they have the power to enter into this contract and have obtained all necessary authorisations to allow them to do so, they are not insolvent and that this contract creates binding and valid legal obligations on
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