Terms and Conditions
STANDARD TERMS AND CONDITIONS OF PURCHASES AND CONTRACTS
ABN
TRADING AS 03entertainment of sunshine west vic 3020 (here after
called "03entertainment") sets out below the terms and conditions
binding upon every customer to whom an invoice or quote is addressed
(each of whom is hereafter called "the Customer").
Acceptance of Terms and Conditions
By
acceptance of the invoice or quote, the Customer is deemed to have
accepted these standard terms and conditions and these terms and
conditions are deemed to be part of the agreement between
03entertainment and the Customer in relation to the hire of goods and/or
the purchase of goods or services, and the Customer agrees to be bound
by these terms and conditions.
Interpretation
In these terms and
conditions, unless the context or subject matter otherwise indicates,
the singular includes the plural and vice versa and "the equipment"
means the equipment referred to in the quote or invoice;
"03entertainment " means the proprietors of the registered business name
"03entertainment " their successors and transferees and all officers,
managers and agents of 03entertainment and of each company associated
there with; "the charges" means the applicable prices for the supply of
the equipment and/or services.
Charges, Credit and Payment
3. The
Customer must pay all the charges to 03entertainment in advance prior to
delivery unless authorisation in writing stating otherwise (i.e. C.O.D.
net 7 days, net 14 days) or the Customer has a credit account with
03entertainment . Should the customer be granted any discount on the
charges, that discount shall only be applicable if the customer complies
with agreed payment terms.
4. Unless stated otherwise by
03entertainment, an account application must be submitted and approved
by 03entertainment prior to any credit terms being allowed. New
customers requiring credit on a purchase or contract must complete all
application details, otherwise credit will not be established and
payment must be made in accordance with clause 3.
5. If the Customer
has a credit account payment shall be made within a maximum thirty (30)
calendar days of the date of the customer taking delivery of the
equipment. Interest shall accrue thereafter on the amount outstanding at
the rate of twelve (12%) percent per annum calculated on a daily basis
and such interest shall be payable on demand.
6. Upon requesting
Audio Solutions to provide it with credit facilities, the Customer
further agrees to be bound by the conditions of credit provision
contained herein.
7. All payments made by the Customer to 03entertainment must be in cash or bank signed cheques.
8.
All amounts due to 03entertainment must be paid without set off or
reduction for any reason including damage to goods or counter claim.
The
Customer will remain liable for any unpaid charges or debt due to
03entertainment not withstanding that the Customer has assigned the
charges or the debt to a third party.
10. The Customer gives their
personal guarantees that should the organisation that the invoice is
addressed to, does not pay the charges within 30 days of becoming due,
that the Customer shall personally accept responsibility and reimburse
03entertainment for all costs incurred by it in collecting the debt.
11.
The Customer irrevocably authorises 03entertainment and its successors
and assigns to charge to the Customer’s credit card any and all amounts
due should payment not be made within 30 days of the end of the month in
which the hire/purchase took place or the charge was incurred.
12.
Should 03entertainment be indebted to the Customer for the supply of
goods or services, the Customer agrees to allow 03entertainment to apply
such amount towards any debt owing to 03entertainment at
03entertainment ’ sole discretion.
13. Charges are subject to change
without notice. Quotes will not be deemed to be given unless in writing
from 03entertainment . Quotes given are valid for a maximum period of 7�
days unless otherwise specified in writing.
14. Labour charges are
an estimate only. The customer acknowledges that 03entertainment can
vary its labour charges, at its sole discretion, for any reason, and is
under no�� obligation to provide an explanation for such variation. The
Customer agrees to pay such charges, as quoted or varied, upon demand.
15.
The customer agrees to the payment of an Administration charge of $15
(ex GST) to each invoice we issue to you. Where account facilities are
provided, the customer agrees�� to the payment of an account maintenance
fee of up to $100 (ex GST) per calendar month owing to 03entertainment
at 03entertainment ’ sole discretion.
Cancellation Charges
16. The
Customer agrees that a cancellation fee will be payable to
03entertainment if the project is cancelled for any reason (including
due to weather). This will be in addition to all expenses incurred by
03entertainment up to the time of cancellation. The fee will be based on
the time of cancellation as follows:
Cancellation 15 days or more prior to event 3% of quoted fees
Cancellation 14 to 8 days prior to event 30% of quoted fees
Cancellation 7 to 2 days prior to event 45% of quoted fees
Cancellation 2 days or less prior to event 100% of quoted fees
Retention
17.
03entertainment may at its sole discretion agree to a retention of the
purchase price up to a maximum of 5% and a maximum period of 6 months.
Retentions are only applicable to charges for labour and services
provided. As equipment supplied comes with full manufacturers
warranties, retention on equipment purchases is not accepted.
Verification and approval in writing must be obtained from
03entertainment prior to the Customer making any deductions from the
amount retained, commencing any works or incurring any charges in
respect of a retention.
Delivery and Inspection
The Customer shall
be deemed to take delivery of the equipment at the warehouse of
03entertainment or its agent notwithstanding any provision for
transportation of the equipment by 03entertainment to the Customer or
its agents. All freight costs shall be payable by the Customer unless
stated otherwise in writing.
19. The Customer undertakes to inspect
the equipment carefully at the warehouse of 03entertainment or
immediately on taking delivery of the equipment from 03entertainment .
Unless the Customer notifies 03entertainment in accordance with clause
19, the Customer acknowledges that the equipment is in good condition at
the time of delivery.
20. The Customer must inform 03entertainment
in writing within 6 hours of delivery if there is any loss, damage or
shortage. 03entertainment will issue a Return Authorisation Number in
writing to the Customer prior to acceptance of any claim.
21. Any
claims for loss, damage or shortage to the equipment made after this
time may be refused at the discretion of 03entertainment and if accepted
will be subject to a restocking fee to be nominated at the time of
issue of the Return Authorization Number.
Title to Equipment
22.
Equipment sold by 03entertainment will not be deemed sold until full and
final payment is received by 03entertainment . 03entertainment reserves
property in and title to any equipment for which full and final payment
has not been received, but risk in the equipment passes to the Customer
23.
Equipment hired by 03entertainment remains the property of
03entertainment . 03entertainment reserves property in and title to any
equipment hired to the Customer.
24. The Customer must protect
03entertainment ’ interest in any equipment which has been sold to the
Customer without full and final payment having been received by
03entertainment or any equipment which has been hired by the Customer.
25.
Without limitation, clause 24 obliges the Customer to hold the
equipment as bailee for 03entertainment and to refrain from disposing of
the equipment, co-mingling the equipment with any other goods,
irretrievably affixing the equipment to any other goods, and attaching
the equipment to any property or land.
Customer’s Undertakings
26. The customer undertakes:
(a)
not to assign or sub-lease any equipment which has been hired from
03entertainment or in respect of which 03entertainment has not yet
received full and final payment;
(b) cause or permit any legal or
equitable lien or any encumbrance to take effect or be created over or
in respect of any equipment hired or in respect of which 03entertainment
has not yet received full and final payment.;
(b) promptly to pay
the charges in accordance with the terms set out herein irrespective
that no demand shall be made by 03entertainment therefore;
(c) to
permit (or obtain permission for) 03entertainment by any of its
officers, servants and agents to enter the premises where the equipment
may be located and (without prejudice to any other claims or rights as
03entertainment may have to damages or otherwise) to permit inspection
of the equipment, repossession by 03entertainment of the equipment or
enforcement of any other right of 03entertainment under this Agreement
if 03entertainment determines that any breach of any term or condition
of the agreement for hire or purchase has been committed;
(d) to pay
03entertainment for any costs incurred by 03entertainment in removal or
recovery of the equipment or the re-delivery of the equipment to
03entertainment ;
(e) not to bring or maintain or be party to or
assert any action, claim counterclaim or set-off at law or in equity or
in variance from or inconsistent with any of these terms and conditions;
and
(f) to pay 03entertainment the full costs incurred by it to
recover monies due under the terms of this Agreement, including, but not
limited to legal costs on a solicitor-client basis and to pay interest
on any costs incurred at the rate specified being 12% per annum.
Customer’s Indemnity
27.
The Customer agrees to indemnify 03entertainment against any loss,
damage, claims or actions suffered by Audio Solutions whatsoever or
howsoever made by any third party in respect of the Customer’s use of
the equipment or services provided under this Agreement or in respect of
03entertainment enforcing its rights under this Agreement.
28. The Customer must only use the equipment for the purpose for which it is designed and in accordance with any applicable laws and this Agreement.
29. The Customer must immediately report any loss or damage to the equipment to 03entertainment .
30. The Customer shall be responsible for any loss or damage to any of the equipment arising during the time from when the Customer is deemed to take delivery of the equipment at the warehouse of 03entertainment until the Customer makes full and final payment (in the case of purchased equipment) or returns the equipment to the warehouse of 03entertainment or where our collection agent collects this equipment (in the case of hired equipment).
31. Where 03entertainment agrees by special arrangement to deliver equipment to a person (whether or not an officer, servant or agent of the Customer and howsoever identified) nominated by the customer, the Customer will remain liable for any loss or damage to the equipment in accordance with clause 24.
32. Where equipment is destroyed, irreparably damaged, lost by the Customer or seized by a third party from the Customer, the Customer is liable for the full replacement value of the equipment at the current retail price for the same model or any more recent model having specifications closest to that of the equipment so destroyed, damaged, lost or seized and this liability is in addition to any other claim for compensation or damage which 03entertainment may have against the Customer including 03entertainment ’ loss of profits.
33. Any payment to be made pursuant to clause 26 must be made by the Customer within seven (7) days of such loss or damage coming to the attention of 03entertainment .
Other Loss and Damage
34. The Customer shall be responsible for all loss or damage whatsoever or howsoever caused to any person or property in relation to the equipment or the use thereof and without limiting that responsibility, the Customer shall be liable to effect public risk insurance and/or all risks insurance in relation to the equipment and services for the duration of the period of the a contract for installation. 03entertainment will not be liable for any such loss except to the extent that it is caused by the negligence of 03entertainment .
Return of Equipment
35. The Customer undertakes to return the equipment by mid day on the return date, otherwise a charge double the daily rate will be made for every day the equipment is not returned.
36. The Customer agrees to return all leads and cables neatly rolled and agrees to pay a fee of $60.50 per hour for rolling should this not occur.
Limitation on Liability
37. The Customer agrees and acknowledges that 03entertainment ’ liability for any loss or damage that the customer might suffer under or in connection with the supply of audiovisual services under this Agreement is limited to the resupply of those Audiovisual Services and 03entertainment accepts no responsibility for any loss of profit, consequential loss or damage of any kind.
38. Without limiting the generality of the clause 31, 03entertainment shall not be liable for any delay in supplying, setting up the equipment or for loss or damage arising out of the supply or setting up of the equipment or from the failure of the equipment or from the design or operation thereof or for any advice provided in connection therewith.
39. The Customer acknowledges that all conditions and warranties which may be implied in relation to the supply of goods and services by 03entertainment to the Customer by virtue of the Trade Practices Act 1974, as amended, and the provisions of any other applicable law of Australia and the states of Australia are to the extents permitted by those acts and by law excluded and negated and that the liability of 03entertainment for a breach of a condition or a warranty implied by the Trade Practices Act including any consequential loss which the Customer may sustain shall to the extent permitted by that Act be limited to; in the case of goods, at the option of 03entertainment, any one or more of the following; (a) The replacement of the goods or supply of equivalent goods; (b) the repair of the goods; (c) the payment of the cost of having the goods repaired; and in the case of services at the option of 03entertainment: (a) the supply of the services again; or (b) the payment of the cost of having the services supplied again.
40. The Customer agrees and acknowledges that 03entertainment accepts no responsibility or liability for or in relation to any work or material displayed, projected, amplified, transmitted, broadcasted, recorded or replayed through any equipment and the customer expressly indemnifies 03entertainment from and against any claim, suit or action brought by a third party in relation to the same. The customer further undertakes to provide any video program to 03entertainment recorded on a professional format, either SP Beta or DVCPRO/DV, unless such program is regarded as incidental to their event, in which case non professional formats, such as DVD or computer may be used. In those cases the customer acknowledges that non professional video formats may not play as desired, and undertakes not to seek a reduction in charges, or other remedy, from 03entertainment, should the media not play correctly.
41. The Customer agrees and acknowledges that, unless otherwise specified in writing, 03entertainment is only contracted to supply audiovisual equipment and related services to the Customer and not to provide audio or video recordings of a specified quality of an event run by the Customer. 03entertainment therefore makes no warranty that any audio or video recordings made by it will be complete or of useable quality and therefore 03entertainment accepts no responsibility or liability for or in relation to any recording made by any equipment provided by 03entertainment or otherwise. The Customer indemnifies 03entertainment from and against any claim, suit or action by any third party in relation to the quality of any such recording.
42. The Customer agrees and acknowledges that 03entertainment accepts no responsibility or liability if the equipment does not function or perform satisfactorily as a result of the acoustics of the venue in which the equipment is being used or other matters related to the venue outside the control of 03entertainment, provided the equipment supplied is in operating condition and 03entertainment uses due care and skill in the supply of the equipment and related services to the Customer.
Termination and Assignment of Agreement
43. The Customer agrees that 03entertainment has the right to terminate this Agreement prior to the time specified in the quotation for return of the equipment if it has reasonable concern for the safety of any employee, servant or agent of 03entertainment or if 03entertainment reasonably believes damage to the equipment may occur or has occurred. If 03entertainment terminates this Agreement in accordance with this clause, the charges remain due and payable by the Customer to 03entertainment and the Customer may not make any claim for compensation or seek damages against 03entertainment in respect of the termination.
44. The Customer shall not assign this agreement or any obligation as to payment hereunder to any person without prior written consent of 03entertainment which consent may be withheld absolutely and in any event by consent shall not release the customer named herein from personal liability hereunder.
45. 03entertainment may terminate this Agreement if the charges are not paid by the Customer in accordance with this Agreement or if the Customer repudiates this Agreement.
46. If 03entertainment terminates this Agreement, 03entertainment may retake possession of any equipment belonging to 03entertainment in the possession of Customer and may resell or rehire any such equipment.
Intellectual Property
47. The customer acknowledges that in the case of design services provided to configure a specific system for the customer’s requirements, that the system and information offered remains the intellectual property of 03entertainment, and use of this property without the written consent of 03entertainment may result in legal action against the Customer.
Taxes and Charges
48. The customer acknowledges and agrees that, unless stated otherwise in this Agreement, all taxes, duties, and government charges imposed or levied on or in connection with this Agreement are to be borne by the Customer.
General
49. If any of these terms and conditions is or becomes for any reason wholly or partially invalid, that term and condition shall to the extent of the invalidity be served without prejudice to the continuing force and validly of the remaining terms and conditions.
50. Subject to any legislation to the contrary and to preceding words of this clause, but notwithstanding any other clause of this Agreement;
(a) Representations and agreements not expressly contained herein shall not be binding upon 03entertainment as conditions, warranties or representations;
(b) All other conditions, warranties and representations on the part of 03entertainment whether express or implied are hereby expressly negatived and excluded; and
(c) This Agreement including the Schedules hereto constitutes the whole of the Agreement and understandings between the parties with respect to the subject matter hereof and all additions and modifications to this Agreement shall be in writing and shall be signed by both parties.
51. The failure of 03entertainment to enforce at any time any of the provisions of this Agreement or any right hereunder shall not be construed as a waiver of the same, or of its rights to enforce at any time thereafter each and every provision thereof.
