TERMS & CONDITIONS

TERMS & CONDITIONS

Captivate AV PTY LIMITED (ABN 17 611 672 541)


SERVICES AGREEMENT

 

Captivate AV PTY LIMTED (ABN 17 611 672 541) of (3/16 Jade Drive, Molendinar, 4214 QLD We/Us)

and THE CLIENT REFERRED TO IN THE EVENT PROPOSAL, ESTIMATE, QUOTATION, AND OR INVOICE (You)

  1. Definitions
In this Agreement the following expressions have the following respective meanings:
    • ACL -
The Australian Consumer Law Schedule of the Competition and Consumer Act 2010 (Cth) and its associated Regulations as amended.
    • Agreed Cost
 – A cost borne by Us which You must reimburse as specified in the Event Proposal.
    • Agreement -
This agreement, as amended.
consumer
As defined in the ACL and in determining if the Customer is a consumer, the determination is made if Customer is a consumer under the Agreement.

 

  • Claim -
Any claim, counterclaim demand or proceedings and any defence to a claim, counterclaim or proceedings for any Loss or Liability whatsoever (including legal costs and disbursements) made or commenced in any jurisdiction and founded in contract negligence or other tort breach of statutory duty or on any other cause of action.

 

  • Confidential Information -
Information of or pertaining to either party which is marked confidential or secret (or words to that effect) or which is (although not marked as such) the recipient knows or ought reasonably to know is of a confidential, secret or sensitive nature. The term “Confidential Information” includes the terms of this Agreement, the Fees and any proposal made by Us to You.

 

  • Design Fee
- The design fee stated within the cost estimate by Captivate AV in the Event Proposal.

 

  • Deposit –The amount of the deposit specified in the Event Proposal (if any).

 

  • Event Proposal
 – A cost estimate given by Captivate AV to You in writing. The Event described in the Event Proposal
  • Event Date -
The date and time of the Event as specified in the Event Proposal.

 

  • Equipment -
Our Audio-visual and other equipment.

 

  • Fee -
The fees payable by You to Us as specified in the Event Proposal, Quotation, Estimate, or Invoice.

 

  • GST
- The tax imposed or assessed by the GST Act and its related legislation

 

  • GST Act -
The A New Tax System (Goods & Services Tax) Act 1999 and associated legislation, as amended from time to time.

 

  • Hire Period -
The period during which You are permitted to use the Equipment as specified in the Event Proposal, Estimate, Quotation, or Invoice.

 

  • Insolvency Event -
If a party enters into bankruptcy, provisional liquidation, liquidation, receivership, voluntary administration or if a “controller” (as defined in the Corporations Act 2001 (Cwth)) is appointed to a party or if a mortgagee takes possession of any assets of a party or if a party ceases to trade or is unable to pay its debts as they fall due or if a party makes a compromise with its creditors or enters into a scheme of arrangement.

 

  • Intellectual Property -
All forms of intellectual property in all jurisdictions, including patents, petty patents, innovation patents, patentable inventions, know-how, trade marks (whether registered or unregistered), copyright, registered and registrable designs, circuit layout rights, applications for registration of any of the foregoing and rights to apply for registration of any of the foregoing.

 

  • Loss -
Loss, damage, expense or cost of any kind, including personal injury, death, damage to reputation, damage to goodwill, economic loss, loss of or damage to property, loss of data, financial loss, loss of money, consequential loss, loss of profit, loss of cost and other savings, loss of opportunity or any other from of loss and including loss in relation to any Claim, including legal costs and disbursements.

 

  • PPSA -
The Personal Property Securities Act 2009 (Cth) and its associated Regulations as amended.

 

  • Services -
the services which we provide to You, including supplying and leasing to You the Equipment listed in the Event Proposal, Quotation, Estimate, or Invoice, and, if applicable, personnel to setup and/or operate it at the Event.

 

  • Venue
 – The place at which the Event is to take place, as specified in the Event Proposal, Estimate, Quotation, or Invoice.

 

  • Venue Operator
 – The person who operates or manages the Venue. For the avoidance of doubt, the Venue Operator may be You.
  1. Engagement and application of this document – Upon Your acceptance of the Event Proposal, Estimate, Quotation, or Invoice, You engage Us to supply the Equipment and the Services in accordance with the Event Proposal, Estimate, Quotation, or Invoice, and the provisions of this Agreement. For the avoidance of doubt Event Proposals may be given and accepted by email or otherwise as provided in clause 26. This document and the Event Proposal comprise the entire agreement and understanding between the parties despite any prior correspondence, negotiations or discussions and cannot be varied by Your own terms and conditions. If there is any inconsistency between this Agreement and the Event Proposal, the Event Proposal prevails, but only to the extent of the inconsistency.
  1. Variation and additional services -
The terms and conditions of this Agreement may be varied only by further written agreement of both parties. If You ask Us to:
    • provide additional Services, we will provide them (subject to reasonable notice and availability)
    • reduce the Equipment or Services that You require, then You are still liable to pay the full Fee in provided that You pay our then-current fee for the additional Services, as the case may be; or the Event Proposal. We may, at Our sole discretion, agree to reduce the Fee to take into account the reduced requirements.
  1. Relationship of the parties and with other suppliers -
The parties are independent contractors and neither party is the agent or partner of the other. The parties must not make any representation to the contrary. You agree the Event is your business venture and is at your risk. We make no representations about the success or otherwise of the Event. You have the sole responsibility to:
    • enter into contracts with the Venue Operator and other suppliers to the Event; and
    • co-ordinate the Venue Operator and various suppliers to the Event so that We are able to supply the Equipment or perform the Services in accordance with this Agreement.
  1. Fees and Agreed Costs
-
    • Unless otherwise agreed in writing:
      • You must pay the Deposit to Us on the date You accept the Event Proposal, Estimate, Or Quotation.;
      • Subject to 5(a)(iii), full payment for the Equipment or Services must be made within 28 days of the date of Our invoice.
      • We reserve the right to require payment in full on delivery of the Equipment or completion of the Services.
    • Payment by cheque is not deemed made until the proceeds of the cheque have cleared.
    • Payment terms may be revoked or amended at Our sole discretion immediately upon giving You written notice.
    • The time for payment is of the essence.
  1. Default -

    • If You default in payment of the Fees, Agreed Costs or any other amount payable to Us by the due date, then all money which would become payable by You to Us at a later date on any account, becomes immediately due and payable without the requirement of any notice to You, and We may, without prejudice to any of our other accrued or contingent right:
      • charge You interest on any sum due at a rate of 12% for the period from the due date until the date of payment in full;
      • charge You for, and You must indemnify Us from, all costs and expenses (including without limitation all legal costs and expenses) incurred by it resulting from the default or in taking action to enforce compliance with the Agreement or to recover any Equipment;
      • terminate or suspend supply of any further Equipment or Services to You;
      • by written notice to You, terminate or suspend any other uncompleted contract with You.
    • Clauses 6(a)(iii) and 6(a)(iv) may also be relied upon, at Our option where the is an Insolvency Event.
  1. Design Services -
You are liable to pay the Design Fee outlined in the Agreement where We, at Your request, prepare equipment, lighting, sound and event staging designs for You. We may, in writing, waive the Design Fee where You subsequently lease the Equipment from Us and engage us to provide the Services. We will not be responsible for any loss or damage suffered whatsoever where You take designs prepared by Us to be implemented by a third party.
  1. Intellectual Property -
Intellectual Property provided to You by Us remains Our exclusive property and must be returned Us on demand and must not be copied or communicated to any third party without Our express written consent.
  1. Venue access -

    • You must procure the right for Us to enter on the Venue at all reasonable times to provide the Services, to install and remove Equipment at will, and to familiarize ourselves with the Venue before the Event.
    • You are responsible for providing safe and proper access to and at the Venue. You are liable for all injury, loss or damage suffered by Us, Our employees or agents while at the Venue.
    • You will indemnify Us against all Loss we incur if the Venue Operator or any other supplier prevents Us from taking Our Equipment when we wish to do so.
    • If You require any change to the time of delivery or removal of the Equipment You must promptly notify Us in writing. We, in Our absolute discretion, may accept or reject such request. If We accept such request We may charge You for any additional fees or costs incurred by Us.
    • If, for whatever reason We are unable to gain access to the Venue for delivery or pick up of Equipment We may charge You for delivery and pick up charges for each unsuccessful attempt.
  1. Our general obligations -
We will supply the Equipment and the Services specified in the Event Proposal. You agree that the Services may be affected by numerous variable factors that we are not liable for, including the acoustics of the Venue, electronic interference, atmospheric conditions, the acts or omissions of You, the Host, the Venue Operator or other suppliers and the acts or omissions of Guests and other persons.
  1. Equipment Hire -
If We just provide the Equipment to You for you to operate, You agree that:
      1. You have satisfied Yourself that the Equipment is in good condition, and is suitable for Your purposes;
      1. When You take possession of the Equipment, your staff must provide Us with identification and You must check to ensure that all items have been supplied as agreed and must sign an acknowledgement of that;
      1. You are responsible for using the Equipment in strict conformity with any directions by us and with the equipment’s instructions or specifications (where applicable);
      1. You must provide us with such security (if any) as is specified in this Event Proposal or otherwise as by Us in writing;
      1. You must take care of the Equipment, keep it clean and secure and prevent it from being damaged, lost or destroyed and must return it in the same condition (fair wear and tear excepted) and that You are responsible for and bear the risk for all of the Equipment including damage to equipment caused by fire, water, storm, collision, accident, theft or burglary;
      1. You must prevent the Equipment from being stolen, unauthorized use, misuse, abuse, vandalism, exposed to weather or inappropriate environment and from use with incompatible technology;
      1. If, before You return the Equipment it is:
      2. i. destroyed, stolen or lost, You must pay Us the replacement cost of the Equipment on a new for old basis;
      3. damaged, prior to its return to Us, We can decide at our option whether to repair or, if that is in Our reasonable opinion uneconomic or would be unlikely to properly restore the Equipment, replace the Equipment and You must pay Us the replacement (on a new for old basis) or repair cost of the Equipment as the case may be;
      1. You must notify Us immediately if the Equipment malfunctions. If We agree that the Equipment is malfunctioning, We will replace it at no charge to You but without any additional liability to Us;
      1. You must not modify the Equipment or remove any serial number or identification markings;
      1. You must use the Equipment only at the Event and must not give possession of the Equipment to anyone else, or purport to assign or license it to anyone;
      1. You must tell us where the Equipment is whenever We ask. You must not remove the Equipment from Australia;
      1. You must ensure that all operators of the Equipment are appropriately experienced and qualified;
      1. You must allow Us or Our contractors to inspect, repair or maintain the Equipment at all times
      1. You must not use the Equipment to broadcast, display, publish or otherwise communicate any material that is Illegal obscene or otherwise offensive, defamatory, in contempt of court or in breach of any obligation of confidence or in breach of any person’s Intellectual Property.
  1. Personal Property Securities Act -
Notwithstanding anything to the contrary contained in this Agreement, the PPSA applies to this Agreement.
    1. For the purposes of the PPSA:
        1. terms used in clause 12 that are defined in the PPSA have the same meaning as in the PPSA;
        1. this Agreement are a security agreement and We have a Purchase Money Security Interest in all present and future Equipment supplied by Us to You and the proceeds of the Equipment;
  • the security interest is a continuing interest irrespective of whether there are monies or obligations owing by You at any particular time; and
    1. You must do whatever is necessary in order to give a valid security interest over the Equipment which is able to be registered by Us on the Personal Property Securities Register.
  1. The security interest arising under this clause 12 attaches to the Equipment when the Equipmente collected or dispatched from Our premises and not at any later time.
  1. Where permitted by the PPSA, You waive any rights to receive the notifications, verifications, disclosures or other documentation specified under sections 95, 118, 121(4), 130, 132(3)(d), 132(4), 135 and 157 of the PPSA.
  1. We and You agree to contract out of and nothing in the provisions of sections 96, 125, 129, 142 and 143 of the PPSA will apply to this Agreement.
  1. To the extent permitted by the PPSA, You agree that:
      1. the provisions of Chapter 4 of the PPSA which are for the benefit of You or which place obligations on Us will apply only to the extent that they are mandatory or We agree to their application in writing; and
      1. where We have rights in addition to those in Chapter 4 of the PPSA, those rights will continue to apply.
  1. You must immediately upon Our request:
      1. do all things and execute all documents necessary to give effect to the security interest created under this Agreement; and
      1. procure from any person considered by Us to be relevant to its security position such agreements and waivers (including as equivalent to those above) as We may at any time require.
  1. We may allocate amounts received from You in any manner We determine, including in any manner required to preserve any Purchase Money Security Interest it has in Equipment supplied by Us.
  1. For the purposes of section 275(6) of the PPSA, the parties agree and undertake that this Agreement and any information pertaining to the lease of Equipment’s and details of the Equipment shall be kept confidential at all times. Neither party may disclose any information pertaining to this Agreement or the lease of the Equipment, except as otherwise required by law or that is already in the public domain.
  1. Risk and Insurance -
The risk in the Equipment and the provision of the Services and all insurance responsibility for theft, damage or otherwise will pass to You immediately on the Equipment or the Services being delivered to You or taken from Our premises. The Equipment is leased to You and the Services are provided to You the basis that You have obtained all necessary licenses or permits under all relevant laws and regulations in relation to the Equipment and the Services. You assume all risk and liability for loss, damage or injury to persons or to property of Yours, or third parties arising out of the use, installation or possession of any of the Equipment leased or Services provided by Us, unless recoverable from Us on the failure of any statutory guarantee under the ACL.
  1. Indemnity for damage to Equipment sustained while in use -
If Equipment is damaged by You, a Guest or other supplier or any person other than Our employee or contractor, or you fail to meet your obligations in accordance with clause 12, You must indemnify and reimburse Us, on demand, the cost of repair or replacement (new for old), as determined by Us.
  1. GST -
Consideration for a taxable supply under this Contract is shown exclusive of GST unless the contrary is clear. If consideration is reimbursement of a cost or liability, the consideration must be calculated after excluding any amount for which the supplier is entitled to an input tax credit.
  1. Intellectual property -
Nothing in this Agreement constitutes a transfer or license of Intellectual Property.
  1. Confidential Information
The parties agree to hold each other’s Confidential Information in confidence.
  1. Health and safety -
You must ensure, and warrant that the Venue is a fit and proper place for the provision of the Services, that the Venue and the Event comply with all applicable laws and that by performing the Services at the Venue and during the Event, Our employees and contractors will not be exposed to any risk or hazard to their health or safety.
  1. Limitation of Our Liability -

    1. Except as the Agreement specifically states, or as contained in any express warranty provided in relation to the Equipment or Services, the Agreement does not include by implication any other term, condition or warranty in respect of the quality, merchantability, acceptability, fitness for purpose, condition, description, assembly, manufacture, design or performance of the Equipment or Service or any contractual remedy for their failure.
  1. If You are a consumer nothing in this Agreement restricts, limits or modifies Your rights or remedies against Us for failure of a statutory guarantee under the ACL.
  1. If You on-supply the Equipment to a consumer and:
      • i the Equipment or Service are not of a kind ordinarily acquired for personal, domestic or household use or consumption, then the amount specified in section 276A(1) of the ACL is the absolute limit of Our liability to You;
      1. the Equipment or Services are of a kind ordinarily acquired for personal, domestic or household use or consumption, payment of any amount required under section 274 of the ACL is the absolute limit of Our liability to You;
    • howsoever arising under or in connection with the sale, installation, use of, storage or any other dealings with the Equipment or Service by You or any third party.
  1. If clause 19(b) or 19(c) do not apply, then other than as stated in the Agreement or any written warranty statement We are not liable to You in any way arising under or in connection with the sale, installation, use of, storage or any other dealings with the Equipment or Service by You or any third party.
  1. We are not liable for any indirect or consequential losses or expenses suffered by You or any third party, howsoever caused, including but not limited to loss of turnover, profits, business or goodwill or any liability to any other party, except to the extent of any liability imposed by the ACL.
  1. You acknowledges that:
      1. You have not relied on any service involving skill and judgment, or on any advice, recommendation, information or assistance provided by Us in relation to the Equipment or Services
    • or their use or application.
      • You have not made known, either expressly or by implication, to Us any purpose for which You require the Equipment or Service and You have the sole responsibility of satisfying Yourself that the Equipment or Services are suitable for Your use.
  1. Nothing in the Agreement is to be interpreted as excluding, restricting or modifying or having the effect of excluding, restricting or modifying the application of any State or Federal legislation applicable to the lease of Equipment or Service which cannot be excluded, restricted or modified.
  1. Release and Indemnity -
You release Us from liability for and will indemnify Us in respect of all Claims (and all costs of defending them, including legal costs on a full indemnity basis) made by any person (including other suppliers and Guests) against Us as a direct or indirect consequence of the acts and omissions of You, any Guest, the host or any other supplier including but not limited to negligence, subject to the ACl.
  1. Voluntary Cancellation of Audiovisual Support Services -
You may cancel the Services at any time prior to the Event by giving Us written notice, whereupon We will give You a written notice specifying the amount payable to Us under this clause. On cancellation of the Services You must pay Us the aggregate of (a) the Agreed Costs which We have paid or which We will incur or to which We are contractually committed and (b) the following respective proportions of the Fees:
            When cancellation occurs:             Proportion of Total Fees:
            (1) After delivery of Equipment to You or to the Venue:             100% + GST
            (2) If (1) does not apply and you cancel the Services within 7 Days before the Event Date:             75% + GST
            (3) If You cancel the Services more than 7 days before but less than 28 days before the Event Date:             50% + GST
            (4) In all other cases (eg Design Fee plus 10% of all the Fees):             10% + GST
  1. Variation and Cancellation -
If We are unable to deliver or provide the Equipment or Services, then We may cancel Your contract (even if it has been accepted) by written notice to You. If through circumstances beyond Our control We are unable to provide the Equipment or Services, then We may:
      1. make changes to the Equipment provided that the end performance is not materially prejudiced; or
      1. cancel any contract (even if it has already been accepted) by notice in writing without any liability to You.
  1. Termination and suspension -
We may at our option terminate this Agreement or suspend the Services until the breach is fully rectified if You:
      1. fail to pay any monies when due, suffer an Insolvency Event or commit a breach of this Agreement (other than non-payment of money), which in Our reasonable opinion, cannot be rectified; or
      1. breach this Agreement (other than non-payment of money), which breach in Our reasonable opinion, can be rectified and which is not rectified within 7 days of the date of a written notice by Us specifying the breach and requiring its rectification,
  1. Assignment, novation and sub-contracting -
A party may assign or novate this Agreement to a third party with the consent of the other party, which consent must not be unreasonably withheld. We may engage subcontractors to perform the Services.
  1. Notices -
Any notice under this Agreement must be delivered by hand (whether by the relevant party or its agent or courier) or sent by facsimile transmission to the address of the recipient party specified in the schedule or as otherwise notified from time to time in writing. Any notice so delivered will be deemed to have been received on the date of such delivery or facsimile transmission unless received outside the hours of 9am to 5pm on business days (Saturdays or Sundays or a public holidays where the notice is served), in which case such notice will be deemed to have been served on the following business day.
  1. Interpretation -
Expressions and clauses in this Agreement are severable and if found to be defective or unenforceable the remaining provisions are of full force and effect. A variation of this agreement must be in writing and signed by both parties. A party does not waive a right or remedy unless that party does so by written notice to the other party. Any indemnity given by a party under this agreement:
      1. is not the exclusive remedy of the party holding the benefit of the indemnity, which party may, in addition or in the alternative, pursue remedies at common law, in equity or under statute;
  2. is a continuing indemnity;
      1. will not be affected by any matter including without limitation, the termination, renewal or extension of this agreement or any indulgence, waiver or other concession given by a party unless the party benefiting from the indemnity agrees in writing; and
  1. includes legal costs and disbursements on a full indemnity basis.
  1. Applicable law -
The law of the State in which the Equipment and Services are provided and the laws of Australia apply to this Agreement.

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