Terms and Conditions

STANDARD TERMS AND CONDITIONS OF PURCHASES AND CONTRACTS

PRODUCTION MAGIC AUDIO VISUAL SERVICES PTY LTD ABN 33-131-333-670 TRADING AS AUDIO SOLUTIONS of 85 High ST Queanbeyan ACT 2620 (hereafter called "Audio Solutions") 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

1. 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 Audio Solutions 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

2. 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; "Audio Solutions" means the proprietors of the registered business name "Audio Solutions" their successors and transferees and all officers, managers and agents of Audio Solutions and of each company associated therewith; "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 Audio Solutions 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 Audio Solutions. 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 Audio Solutions, an account application must be submitted and approved by Audio Solutions 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 Audio Solutions must be in cash or bank signed cheques.

8. All amounts due to Audio Solutions must be paid without setoff or reduction for any reason including damage to goods or counter claim.

9. The Customer will remain liable for any unpaid charges or debt due to Audio Solutions notwithstanding 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 Audio Solutions for all costs incurred by it in collecting the debt.

11. The Customer irrevocably authorises Audio Solutions 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 took place or the charge was incurred.

12. Should Audio Solutions be indebted to the Customer for the supply of goods or services, the Customer agrees to allow Audio Solutions to apply such amount towards any debt owing to Audio Solutions at Audio Solutions’ sole discretion.

13. Charges are subject to change without notice. Quotes will not be deemed to be given unless in writing from Audio Solutions. 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 Audio Solutions 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 Audio Solutions at Audio Solutions’ sole discretion.

Cancellation Charges

16. The Customer agrees that a cancellation fee will be payable to Audio Solutions if the project is cancelled for any reason (including due to weather). This will be in addition to all expenses incurred by Audio Solutions 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. Audio Solutions 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 Audio Solutions 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

18. The Customer shall be deemed to take delivery of the equipment at the warehouse of Audio Solutions or its agent notwithstanding any provision for transportation of the equipment by Audio Solutions 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 Audio Solutions or immediately on taking delivery of the equipment from Audio Solutions. Unless the Customer notifies Audio Solutions 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 Audio Solutions in writing within 6 hours of delivery if there is any loss, damage or shortage. Audio Solutions 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 Audio Solutions 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 Audio Solutions will not be deemed sold until full and final payment is received by Audio Solutions. Audio Solutions 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 Audio Solutions remains the property of Audio Solutions. Audio Solutions reserves property in and title to any equipment hired to the Customer.

24. The Customer must protect Audio Solutions’ interest in any equipment which has been sold to the Customer without full and final payment having been received by Audio Solutions 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 Audio Solutions 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 Audio Solutions or in respect of which Audio Solutions 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 Audio Solutions 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 Audio Solutions therefore;

(c) to permit (or obtain permission for) Audio Solutions 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 Audio Solutions may have to damages or otherwise) to permit inspection of the equipment, repossession by Audio Solutions of the equipment or enforcement of any other right of Audio Solutions under this Agreement if Audio Solutions determines that any breach of any term or condition of the agreement for hire or purchase has been committed;

(d) to pay Audio Solutions for any costs incurred by Audio Solutions in removal or recovery of the equipment or the re-delivery of the equipment to Audio Solutions;

(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 Audio Solutions 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 Audio Solutions 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 Audio Solutions enforcing its rights under this Agreement.

Use, Loss and Damage to Equipment

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 Audio Solutions.

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 Audio Solutions until the Customer makes full and final payment (in the case of purchased equipment) or returns the equipment to the warehouse of Audio Solutions or where our collection agent collects this equipment (in the case of hired equipment).

31. Where Audio Solutions 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 Audio Solutions may have against the Customer including Audio Solutions’ 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 Audio Solutions.

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. Audio Solutions will not be liable for any such loss except to the extent that it is caused by the negligence of Audio Solutions.

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 Audio Solutions’ 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 Audio Solutions accepts no responsibility for any loss of profit, consequential loss or damage of any kind.

38. Without limiting the generality of the clause 31, Audio Solutions 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 Audio Solutions 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 Audio Solutions 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 Audio Solutions, 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 Audio Solutions: (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 Audio Solutions 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 Audio Solutions 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 Audio Solutions 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 Audio Solutions, should the media not play correctly.

41. The Customer agrees and acknowledges that, unless otherwise specified in writing, Audio Solutions 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. Audio Solutions therefore makes no warranty that any audio or video recordings made by it will be complete or of useable quality and therefore Audio Solutions accepts no responsibility or liability for or in relation to any recording made by any equipment provided by Audio Solutions or otherwise. The Customer indemnifies Audio Solutions 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 Audio Solutions 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 Audio Solutions, provided the equipment supplied is in operating condition and Audio Solutions 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 Audio Solutions 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 Audio Solutions or if Audio Solutions reasonably believes damage to the equipment may occur or has occurred. If Audio Solutions terminates this Agreement in accordance with this clause, the charges remain due and payable by the Customer to Audio Solutions and the Customer may not make any claim for compensation or seek damages against Audio Solutions 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 Audio Solutions which consent may be withheld absolutely and in any event by consent shall not release the customer named herein from personal liability hereunder.

45. Audio Solutions 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 Audio Solutions terminates this Agreement, Audio Solutions may retake possession of any equipment belonging to Audio Solutions 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 Audio Solutions, and use of this property without the written consent of Audio Solutions 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 Audio Solutions as conditions, warranties or representations;

(b) All other conditions, warranties and representations on the part of Audio Solutions 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 Audio Solutions 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.

52. This Agreement shall be interpreted and enforced in accordance with the Laws of the time being enforced in the Australian Capital Territory and the Customer agrees to submit to the jurisdiction of the courts therein in relation to any matter arising out of this Agreement.