Terms & Conditions
PRO AV SOLUTIONS - WEBSITE
Welcome to our website. Our website is governed by the terms and conditions of use outlined below (Terms and Conditions), together with our Privacy Policy.
The expressions “we”, “us” and “our” are a reference to Pro AV Solutions Australia Pty Ltd ACN 158 642 650 (Pro AV Solutions) trading as Pro AV Express except where otherwise indicated. The term ‘you’ refers to the user or viewer of our website.
Please read our Terms and Conditions, together with our privacy policy carefully.
If you continue to browse and use this website, you are agreeing to comply with and be bound by the Terms and Conditions, which together with our privacy policy govern Pro AV Solutions’ relationship with you in relation to this website. Your placement of an order via this website with Pro AV Solutions indicates your acceptance of the Terms and Conditions.
The Terms and Conditions outlined below must be read together with any purchase order and in the event of inconsistency, the provisions of any purchase order will prevail. The Terms and Conditions (together with the privacy policy) constitute the entire agreement between you and Pro AV Solutions in relation to the goods supplied.
If you disagree with any part of the Terms and Conditions, please do not use our website.
Pro AV Solutions may exchange your details with third party service providers, who may assist us with marketing, IT, accounting, payment, data processing or other services. Some of these third parties may be located in Australia.
The use of this website is subject to the following Terms and Conditions:
1. The Terms and Conditions of use are in reference to online purchases and orders only.
2. The content of the pages of this website are for your general information and use only. The pages are subject to change with notice to you. Amendments will be effective immediately upon notification on this website. It is your responsibility to check these Terms and Conditions periodically for any changes. Your continued use of the website following such notification will represent an agreement by you to be bound by the Terms and Conditions as amended.
3. Neither we nor any third parties provide any warranty or guarantee as to the accuracy, timeliness, performance, completeness or suitability of the information and materials found or offered on this website for any particular purpose. You acknowledge that such information and materials may contain inaccuracies or errors and we expressly exclude liability for any such inaccuracies or errors to the fullest extent permitted by law.
4. Your use of any information or materials on this website is entirely at your own risk, for which we shall not be liable. It shall be your own responsibility to ensure that any products, services or information available through this website meet your specific requirements.
5. This website contains material which is owned by or licensed to us. This material includes, but is not limited to, the design, layout, look, appearance and graphics. Reproduction is prohibited other than in accordance with the copyright notice, which forms part of these Terms.
6. All trademarks reproduced in this website, which are not the property of, or licensed to Pro AV Solutions, are acknowledged on the website.
7. Unauthorised use of this website may give rise to a claim for damages and/or be a criminal offence.
8. From time to time, this website may also include links to other websites. These links are provided for your convenience to provide further information. They do not signify that we endorse the website(s). We have no responsibility for the content of the linked website(s).
9. You must not assign any rights and obligations under these Terms and Conditions whether in whole or in part without our prior written consent.
10. Please refer to our privacy policy to see how we collect, use and protect your personal information https://www.proavsolutions.com.au/about/privacy-policy/ .
11. Any failure by a party to insist upon strict performance by the other of any provision in these Terms and Conditions will not be taken to be a waiver of any existing or future rights in relation to the provision.
12. If any provision of these Terms and Conditions is invalid, illegal or unenforceable, other provisions which are self-sustaining are, and continue to be, enforceable in accordance with their terms.
13. Your use of this website and any dispute arising out of such use of the website is subject to the laws of Australia.
Copyright Notice
All texts, graphics, user interfaces, visual interfaces, photographs, trademarks, logos, sounds, music, artwork and computer code (collectively “content”) including but not limited to the design, structure, selection, coordination, expression, ”look and feel” and arrangement of such content contained on the website is owned, controlled or licensed by or to us and is protected by copyright, patent and trademark laws and various other intellectual property rights and unfair competition laws. As set out we are either the owner, controller, or licensor of the content. In certain circumstances, we will provide to customers the interface but not the computer code to enable the customer to better deal with the system/products supplied by us. In those circumstances, the customer will be asked to execute with us a Software License Agreement that can be provided upon request. Other than for the purposes of, and subject to the conditions prescribed under, the Copyright Act 1968 (Cth) and similar legislation which applies in your location, and except as expressly authorised by these terms and conditions, you may not in any form or by any means:
In relation to the website or the content:
copy, reproduce, re-publish, upload, post, publicly display, encode, translate, transmit or distribute in any way (including “mirroring”) to any other computer, server, website or other medium or publication or distribution or for any commercial enterprise, or commercialise any information, products or services obtained from any part of this website; without our express prior written consent.
Trade Marks
Except where otherwise specified, any word or device to which is attached the TM or ® symbol is a registered trade mark.
If you use any of our trade marks in reference to our activities, products or services, you must include a statement attributing that trade mark to us. You must not use any of our trade marks:
(a) in or as the whole or part or your own trade marks;
(b) in connection with activities, products or services which are not ours;
(c )in a manner which may be confusing, misleading or deceptive;
(d) in a manner that disparages us or our information, products or services (including this website).
Restricted Use
Unless we agree otherwise in writing, you are provided with access to this website only for your personal use. You are authorised to print a copy of any information contained on this website for your personal use unless such printing is expressly prohibited. Without limiting the foregoing, you may not without our written permission on-sell information obtained from this website.
Specific Warnings – Website
You must ensure that your access to this website is not illegal or prohibited by laws which apply to you. You warrant to us that you are of sufficient legal age to use or participate in all services and features available on the website.
You must take your own precautions to ensure that the process which you employ for accessing this website does not expose you to the risk of viruses, malicious computer code or other forms of interference which may damage your own computer system. For the removal of doubt, we do not accept responsibility for any interference or damage to your own computer system which arises in connection with your use of this website or any linked website. Whilst we have no reason to believe that any information contained on this website is inaccurate, we do not warrant the accuracy, adequacy or completeness of such information, nor do we undertake to keep this website updated. We do not accept responsibility for loss suffered as a result of reliance by you upon the accuracy or currency of information contained on this website. Responsibility for the content of advertisements appearing on this website (including hyperlinks to advertisers’ own websites) rests solely with the advertisers. The placement of such advertisements does not constitute a recommendation or endorsement by us of the advertisers’ products and each advertiser is solely responsible for any representations made in connection with its advertisement.
We make no warranty that goods acquired from us over this website will meet your requirements. Details contained on this website relating to goods or services have been prepared in accordance with Australian law and may not satisfy the laws of any other country. We do not warrant that the details on this website concerning those goods or services will satisfy the laws of any other country. It is your responsibility to determine whether these details satisfy the laws of the jurisdiction where you reside (if that jurisdiction is outside Australia) and if the details do not satisfy the laws of your jurisdiction, you may not order any goods or services from this website.
You acknowledge that despite all reasonable precautions on our part, there is a risk of unauthorised access to or alteration of your transmissions or data or of information contained on your computer system or on this website. We do not accept responsibility or liability of any nature for any such losses which you may sustain as a result of such activity.
Linked Web Sites
This website may contain links to other websites (“linked websites”). Those links are provided for convenience and may not remain current or be maintained. Such linked websites are not under our control and accordingly we are not responsible for and we do not endorse the content of such linked websites, including any information or materials contained on such linked websites. You will need to make your own independent judgement regarding your interaction with these linked websites. We are not responsible for the content or privacy practices associated with linked websites. Our links with linked websites should not be construed as an endorsement, approval or recommendation by us of the owners or operators of those linked websites, or of any information, graphics, materials, products or services referred to or contained on those linked websites, unless and to the extent stipulated to the contrary.
Disclaimer
We do not accept responsibility for any loss or damage, however caused (including through negligence), which you may directly or indirectly suffer in connection with your use of this website or any linked website, nor do we accept any responsibility for any such loss arising out of your use of or reliance on information contained on or accessed through this website.
Security Policy
We take all reasonable steps to keep secure any information which we hold about you. Personal information may be stored both electronically on our computer system, and in hard-copy form. Firewalls, 128 SSL encryption, passwords, anti-virus software and email filters act to protect all our electronic information.
We do not store credit card information, we securely submit credit card information to our bank for processing.
Termination of Access
Access to this website may be terminated at any time by us without notice. Our disclaimer will nevertheless survive any such termination.
Pro AV Solutions - Terms of Trade
1. Application of Terms
1.1. These Terms govern our supply of Goods and Services to you, including supplies on a cash basis.
1.2. If you wish to negotiate these Terms with us then you should respond to this document, marking up these Terms and drawing those changes to our attention and obtain our agreement in writing.
1.3. It is not our practice to otherwise review terms and conditions on documents that you issue to us.
1.4. Unless we otherwise agree in writing, we do not accept, and will not be bound by, any terms or conditions included in, attached to, or referenced in, any other document you give to us like a purchase order.
2. Quotations
2.1. Each quotation that we issue:
(a) is an estimate only;
(b) contains deposit terms;
(c) contains insurance terms;
(d) is not an offer or obligation to supply any Goods or to perform any Services;
(e) is exclusive of GST;
(f) does not include the costs of:
(i) delivering Goods;
(ii) electrical, network data, MATV points, satellite or antenna works, in wall or floor conduits, fire-stopping of penetrations, coring or cable trays;
(iii) masonry or plaster works (including but limited to, painting or refinishing of surfaces);
(iv) scaffold or scissor lifts;
(v) cutting of cable entry holes in desks or tables;
(vi) floor or slab penetration or chasing works; or
(vii) building works or structural works;
(g) remains valid for acceptance for a period of fourteen (14) days from the date of quotation, unless withdrawn by us before a contract for supply is formed; and
(h) contains a price on the basis that all Services are performed, and all Goods delivered, during our usual business hours,
unless the quotation states otherwise.
2.2. Quotations are based on provided Service schedules and timelines. Should schedules or timelines change requiring additional labour resources, then additional labour fees may apply.
2.3. Quotations provided orally are subject to written confirmation.
2.4. A quotation may include additional terms or conditions, which will supplement these Terms.
2.5. Should you wish to have Services performed or Goods delivered outside our usual business hours please let us know as additional charges may apply.
3. Formation of contract
3.1. We are not obliged to supply any Goods or provide Services until after a contract for supply is formed.
3.2. A contract for supply is formed, and you have accepted these Terms, when:
(a) you have placed an Order with us; and
(b) we have received any deposit we have required from you in respect of the Order before progressing it; and
either we have:
( c) accepted your Order in writing; or
(d) supplied you with any Goods or performed any Services following receipt of your Order.
3.3. If you revoke an Order:
(a) prior to the formation of a contract for supply then:
(i) we will refund you any deposit you have paid in respect of that Order; and
(ii) you will not be required to pay any fee for the cancellation of the Order; or alternatively
(b) after the formation of a contract for supply then unless we are in breach of the contract for supply:
(i) you must pay all our reasonable costs associated with fulfilment of your Order; and
(ii) we may apply any deposit you have paid towards those costs.
4. Variations
4.1. Where you request or direct that any Goods or Services be supplied that are not strictly in accordance with the quotation or Order, then such Goods or Services shall constitute a variation, unless otherwise agreed between the parties.
4.2 You acknowledge and agree that:
(a) all variations must be agreed between the parties in writing prior to the Goods and/or Services being supplied; and
(b) all variations shall be, at our discretion acting reasonably, invoiced at the rate(s) specified in the quotation, as specifically quoted, or in accordance with our current prevailing rates (as amended from time to time).
4.3. Subject to clause 5.4., we reserve the right to vary the quoted price if:
(a) there is any movement in the cost of supplying the Goods or Services specified in the Order (including, without limitation, any actual increase in the costs to manufacturing, procuring, or transporting the Goods;
(b) where additional Goods or Services are required due to the discovery of hidden or unforeseen problems (including, without limitation, issues, faults or problems identified upon further inspection) which have been discovered following the commencement of the Services;
( c ) the Goods or Services specified in the Order are varied from the Goods or Services specified in our quotation; or
(d) otherwise as provided for in these terms and conditions.
5. Price
5.1. The price payable for the Goods or Services will be:
(a) the price agreed in writing; or alternatively
(b) the price by our prevailing price list/rates as when you place your Order.
5.2. We may vary our price or rates by notice to you if you request:
(a) the Goods or Services be rendered outside our usual business hours;
(b) different Goods or Services to be supplied to the contract for supply; or
( c) that we delay provision of the Goods or Services for sixty (60) days or more.
5.3. We reserve our right to increase the price of the Goods or Services to reflect any increase in the cost of the Goods or Services that is due to any factor beyond our control (such as, without limitation, any foreign exchange fluctuation, currency regulation of duties, significant increases in the cost of labour, materials or other costs of manufacture).
5.4. Where we vary the price or rates payable for the Goods or Services pursuant to clauses 5.2 or 5.3, we will notify you of the new price/rates. Thereafter you may reject the new price/rates within seven (7) days and terminate the contract for supply without any cost or penalty to you, otherwise you agree that the price/rates will apply to the contract.
6. Delivery and risk
6.1. Unless otherwise agreed, you are responsible and liable for all reasonable charges and costs associated with delivery, shipping, freight or other transport costs.
6.2. We will use reasonable endeavours to deliver the Goods at the time and place agreed for delivery. You will make arrangements necessary to take delivery of the Goods.
6.3. You acknowledge and agree that:
(a) unless the contract for supply expressly states otherwise, time in respect of delivery is not of the essence; and
(b) any timeframe or date for delivery is an estimate only and is not a contractual commitment.
6.4. Risk of loss, damage, or deterioration to the Goods passes to you, and delivery is deemed to occur, at the time:
(a) you or any third party on your behalf collect the Goods from us;
(b) we or our nominated carrier deliver the Goods to the delivery location stated in your Order (or to such other location as agreed in writing); or
( c) your nominated carrier takes possession of the Goods.
6.5. It is your responsibility to provide suitable, practical, and safe means of access and egress to the place agreed for delivery. If the site is deemed unsuitable or unsafe (at the delivery driver’s sole discretion), then the delivery driver may:
(a) refuse to deliver the Goods and return the Goods to the point of despatch (in which case an additional delivery fee will apply to any subsequent delivery attempt); or
(b) deliver the Goods to the location nearest to the agreed place for delivery where delivery can be safely effected.
6.6. You agree to sign our delivery docket or consignment note or that of our nominated carrier as confirmation that you have received the Goods, and if appropriate, certify that you have received the Goods in apparent good order and condition in the quantity or volume you have ordered.
6.7. If you authorise us to deliver the Goods to an unattended location or to leave them outside the agreed place for delivery, we may deliver the Goods as requested at your risk.
6.8. If delivery or collection of the Goods is deferred:
(a) at your request; or
(b) due to you being unable or unwilling to accept delivery of the Goods (other than as a result of the Goods delivered not being in accordance with the contract for supply);
in circumstances where:
( c) we are ready to deliver the Goods and a delivery date has not been agreed; or
(d) the Goods are due to be delivered or collected on an agreed delivery date,
then you will pay to us:
(e) reasonable daily storage charges (which will continue to accrue until such time as the Goods are delivered or collected); and
(f) any costs associated with us or our nominated carrier attempting to re-deliver the Goods (where we or our nominated carrier has previously attempted to deliver the Goods).
6.9. You acknowledge and agree that we may deliver the Goods in one or more lots and may invoice you for pro rata progress in respect thereof.
7. Provision of Services
7.1. You must ensure that Site amenities required by our Personnel, including water, electricity (i.e. 240 volt), and sanitary accommodation (i.e. serviced toilet facilities) are made available for our Personnel’s use (at no cost to us or our Personnel). If you fail to make such amenities available, we will be entitled to invoice you any additional costs we incur in procuring or providing such amenities.
7.2. You must, prior to us commencing the Services:
(a) obtain, at your expense, all relevant Approvals;
(b) (where applicable) engage a licensed service locator to clearly mark the location of all services above and below ground, including drains, pipes, sewers, mains, and telecommunications and electricity cables;
( c) restrict any animals and non-Personnel from accessing the Site;
(d) provide us with such information and documentation that we reasonably require to perform the Services; and
(e) inform us of any special requirements pertaining to the installation (such as Site-specific policies or safety requirements).
7.3. Unless the contract states otherwise, you must provide us with a skip bin or suitable facilities for us to dispose of our rubbish. While we will be responsible for disposal of our rubbish, we will not be responsible for disposing of the rubbish of any third party.
7.4. You acknowledge and agree that:
(a) unless the contract expressly states otherwise:
(i) time in respect of completion of the Services is not of the essence; and
(ii) while we will take reasonable endeavours to complete the Services by the estimated date for completion, any timeframe or date for completion is an estimate only and is not a contractual commitment; and
(b) all Services carried out outdoors are contingent on suitable weather conditions; and
( c) we may suspend or cease performance of the Services at any time by notice to you if, in our opinion (acting reasonably), we determine the Site to be unsafe.
7.5. If the commencement or the completion of the Services is delayed due to any event beyond our reasonable control, such as:
(a) Goods unavailability;
(b) your failure to:
(i) select the Goods;
(ii) have the Site ready for us to perform the Services; or
(iii) notify us the Site is ready for us to commence the Services.
then you agree we may extend the time for commencement or completion of the Services (as the case may be) by a period of time equal to the delay.
7.6. You must at all reasonable times permit our Personnel to have free, clear, and unrestricted access to the Site to enable us to fulfil our obligations without unreasonable interruption, impediment, delay, or obstruction.
7.7. If you make available access to the Site, you warrant that the Site is safe and that it complies with all relevant work health and safety laws and standards.
8. Payment terms
8.1. Unless you have a Credit Facility with us which is not in default:
(a) deposits we have requested must be paid before we commence providing Goods and Services;
(b) you must pay for all Goods before they are despatched (in cash or cleared funds); and
( c) you must pay for all Services on a progressive hourly basis as performed.
8.2. Payment may be made by cash, cheque, electronic funds transfer, Visa, or Mastercard credit cards. We reserve the right to change the payment methods that we accept at any time.
8.3. We may charge a payment surcharge for applicable payment transactions equal to our reasonable cost of acceptance.
8.4. You agree to pay GST on all taxable supplies upon us issuing you a tax invoice relating to the taxable supply.
8.5. You agree to pay sums due to us free of any set off or counterclaim and without deduction or withholding.
9. Claims
9.1. Clauses 9.2 to 9.4 only apply if the contract for supply is not a Consumer Contract and not a Small Business Contract.
9.2. You must, within seven (7) days of the date of delivery:
(a) give us notice in writing, with particulars, of any Claim that the Goods delivered are not in accordance with the contract for supply (including any Claim for shortfall, incorrect supply, or damage to the Goods); and
(b) at our request, provide us with photographic evidence (to our satisfaction) of any alleged damage to the Goods.
9.3 You must notify us in writing of any Claim for non-delivery within seven (7) days of the date of the invoice which relates to the Goods the subject of your Claim.
9.4. If you fail to notify us in accordance with clause 9.2. and 9.3., then, to the extent permitted by law, the Goods are deemed to have been delivered in good condition and in accordance with the contract for supply.
10. Returns
10.1. We will accept the return of any Goods if:
(a) the Goods supplied do not conform with the contract for supply;
(b) the Goods are defective; or
( c) we are required by law to accept the return of the Goods.
10.2. At our discretion, we may accept the return of Goods if you change your mind if:
(a) you agree to reimburse us for all reasonable costs we incur in connection with the return of those Goods (except for Goods we have incorrectly supplied or we agree are defective);
(b) the Goods are in substantially the same condition to the condition in which they were delivered; and
( c) the Goods were not specifically produced or procured at your request.
10.3. You indemnify and release us from any damage that occurs to any Goods in return transit. You should ensure that any returned Goods are insured against such damage.
11. Retention of title
11.1. Until such time as you have made payment in full (in cash or cleared funds) for any Goods we have supplied:
(a) title in the Goods does not pass to you and we retain the legal and equitable title in the Goods;
(b) you will hold the Goods as fiduciary and bailee for us and agree to store the Goods in such a manner as to enable them to be readily identifiable as our property;
( c) you undertake to not mix the Goods with similar goods;
(d) unless and until we notify you to the contrary, you will be entitled to sell the Goods in the ordinary course of your business (provided any such sale is at arm’s length and on market terms) and will sell the Goods as our agent and bailee; and
(e) you undertake to hold any proceeds derived from the sale of the Goods on trust for us absolutely.
11.2. While title in the Goods remains with us, you permit us to enter upon any premises you occupy (or any premises any receiver, receiver and manager, administrator, liquidator, or trustee in bankruptcy of yours occupies) as your invitee to inspect the Goods and, when you are in default of payment of any invoice, to repossess any Goods in your possession, custody, or control.
11.3. Where we exercise our right of entry pursuant to clause 11.2., you agree that us doing so will not give rise to any Claim for trespass or similar action against us or our officers, employees, and agents.
11.4. Where we have retaken Goods into our possession, we have the right to sell or deal with those Goods, and, if necessary, sell any Goods bearing your name or trade mark, and you hereby grant us an irrevocable licence to do all things necessary to sell those Goods.
11.5. For the removal of doubt, our interest under this clause 11 constitutes a purchase money security interest for the purposes of the PPS Act.
12. Security interest
12.1. Unless you have obtained our prior written and fully informed consent, you undertake not to:
(a) register a financing change statement in respect of a security interest in our favour; or
(b) create, or purport to create, any security interest in the Goods (or any proceeds derived from the sale of such Goods), nor register, nor permit to be registered, a financing statement or financing change statement in relation to the Goods in favour of any third party.
12.2. You:
(a) waive your right to receive a copy of any verification statement in accordance with section 157 of the PPS Act; and
(b) agree that, to the extent permitted by the PPS Act:
(i) sections 95, 96, 117, 118, 120, 121(4), 123, 125, 126, 128, 129, 130, 132, 134, 135, 142, and 143 of the PPS Act do not apply and are hereby contracted out of; and
(ii) you waive your right to receive notices under sections 95, 118, 121(4), 127, 130, 132(3)(d), and 132(4) of the PPS Act.
12.3. We need not disclose information of the kind detailed in section 275(1) of the PPS Act, unless required by law.
12.4. Where we have rights in addition to those under Part 4 of the PPS Act, those rights continue to apply.
13. Particular Purpose
If you require any Goods for a particular purpose, you must advise us of that purpose prior to placing your Order and must obtain a written assurance from us that the Goods will meet your requirements. If you do not advise us of your requirements and we do not expressly warrant in writing that the Goods will be fit for your particular purpose, then you agree that you did not rely upon our skill or judgment in relation to the suitability of the Goods for that purpose.
14. Customer Material
14.1 You warrant and represent to us that all Customer Material:
(a) is accurate and correct; and
(b) will not infringe the Intellectual Property Rights of any third-party.
14.2 You grant us a non-exclusive, non-transferrable, royalty free, perpetual, worldwide licence to use all Customer Material for:
(a) the purposes of supplying the Goods or performing the Services; and
(b) marketing and advertising.
15. Intellectual Property Rights
15.1. All right, title, and interest in the Intellectual Property Rights in and to all Working Documents, and all Goods sold or supplied by us are, and will at all times, remain our property.
15.2. All improvements, derivatives and modifications to the Intellectual Property Rights contemplated by clause 15.1 (the Improvements) vest in us immediately on creation. To the extent necessary to give effect to this clause 15, you assign to us all right, title, and interest in the Improvements.
15.3. You acknowledge and agree that:
(a) you have no rights to use our Intellectual Property Rights under these Terms, except as expressly set out herein, unless otherwise agreed in writing; and
(b) you must not modify, copy, clone, or reverse engineer any of our Goods (nor procure or permit any person within your reasonable control to do any of these things).
16. Default
16.1 Clauses 16.2. to 16.4. apply if you fail to pay sums to us when they fall due.
16.2. We may charge you interest on the outstanding debt (including any judgment debt) at the rate of 12% per annum.
16.3. We may suspend or cease the supply of any further Goods or Services to you.
16.4. We may require pre-payment in full for any Goods or Services which have not yet been supplied.
17. Indemnity
17.1. If you default in the performance or observance of your obligations under any contract of which these Terms form part, then:
(a) we will take steps to mitigate our loss and act reasonably in relation to any default by you; and
(b) we will give you notice requesting payment for loss and damage occasioned in respect of those events and requesting that you remedy any breach within a reasonable time; and
( c) if that demand is not met then you indemnify us in respect of loss, damage, costs (including collection costs, bank dishonour fees, and legal costs on an indemnity basis) that we have suffered arising therefrom.
17.2. Your liability to indemnify us will be reduced proportionally to the extent that any fraud, negligence, or wilful misconduct by us or a breach of our obligations under contract has contributed to the Claim, loss, damage, or cost which is the subject of the indemnity.
17.3. Your liability to indemnify us is a continuing obligation separate and independent from your other obligations and survives the termination or performance of any contract of which these Terms form part.
18. Limitation of liability
18.1. No party is liable to the other party for any Consequential Loss, including under clause 17, however caused arising out of or in connection with any contract for supply of which these Terms form part.
18.2. While we will take reasonable endeavours to meet any estimated delivery date or estimated time for Goods and Services, you acknowledge and agree that we are not liable for any delay associated with meeting those estimated timeframes.
18.3. If the contract for supply is not a Consumer Contract or a Small Business Contract then, to the extent permitted by law, our liability is limited to:
(a) (in the case of a supply of Goods):
(i) us repairing or replacing the Goods; or
(ii) us paying you the cost of having the Goods repaired or replaced.
(b) (in the case of a supply of Services):
(i) us supplying the Services again; or
(ii) us paying you the cost of having equivalent Services supplied.
19. Termination
A party may, with immediate effect, terminate any contract for supply of which these Terms form part by notice in writing, if the other party:
(a) commits a material or persistent breach of these Terms and does not remedy that breach (if capable of remedy) within seven (7) days of the receipt of a notice (or such longer time as specified in the notice) identifying the breach and requiring its remedy; or
(b) has failed to pay sums due to the party within seven (7) days; or
( c) has indicated that it is, or may become, insolvent; or
(d) ceases to carry on business; or
(e) comprises an entity which is the subject of the appointment of receivers or managers; or
(f) comprises a natural person who:
(i) has committed an act of bankruptcy; or
(ii) has been made bankrupt;
(g) comprises a corporation which:
(i) enters into voluntary administration;
(ii) is subject to a deed of company arrangement; or
(iii) is subject to the appointment of liquidators or provisional liquidators.
20. Force majeure
20.1. If a Party is wholly or partly unable to carry out any obligation under a Contract (other than a payment obligation) because of a Force Majeure Event and the affected Party:
(a) gives the non-affected Party prompt notice of that Force Majeure Event including particulars of the event relied upon and so far as known the probable extent to which it will be unable to perform or be delayed in performing that obligation; and
(b) uses all reasonable diligence to remove or remedy that Force Majeure Event as quickly as possible, that obligation is suspended to the extent that it is affected by the continuation of the Force Majeure Event. 20.2 Despite clause 20.1(a), the non-affected Party may terminate the Contract immediately by giving notice to the affected Party if the suspension of the affected Party’s obligation continues under clause 20.1(a) for more than one (1) month.
21. Confidentiality
21.1. You agree to keep confidential, and not use or disclose, other than for your internal business purposes, any Confidential Information provided to or obtained by you before or after your entry into a contract of which these Terms form part.
21.2. The obligations of confidence imposed on you by clause 21.1 do not apply to Confidential Information that is required to be disclosed by any applicable Law or under compulsion of a court, Government Authority, or the rules of any securities exchange (as long as you disclose the minimum amount required to satisfy the Law or rules, provide us with prior notice in writing, and take reasonable steps to maintain the confidence of such Confidential Information) or that is in the public domain otherwise than as a result of a breach of these Terms or other obligation of confidence.
21.3. Clauses 21.1 and 21.2 survive the termination or performance of a contract of which these Terms form part.
22. Trustees
22.1. If you are the trustee of a trust (whether disclosed to us or not), you warrant to us that:
(a) you enter into the contract for supply in both your capacity as trustee and in your personal capacity;
(b) you have the right to be reasonably indemnified out of trust assets;
( c) you have the power under the trust deed to enter into the contract for supply; and
(d) you will not retire as trustee of the trust nor appoint any new or additional trustee without first notifying us in writing and having the new or additional trustee sign an agreement on terms substantially the same as those governing your Credit Facility (where applicable).
22.2. You must give us a true and complete copy of the trust deed upon request.
23. Notices
23.1. Notices in connection with any contract of which these Terms form part, may be given in the manner permitted by addressing and delivering or transmitting the notice to the address or contact number listed:
(a) (for us) as published on our website as at the time the notice is given or otherwise notified by us to you from time to time; or
(b) (for you) as stated in your credit application or otherwise notified by you to us from time to time.
24. Nature of relationship
Nothing in these Terms, or any contract of which these Terms form part, is to be construed as creating a relationship of agency, joint venture, partnership, or other relationship with duties or incidents different from those of parties to an arm’s length contract.
25. Variation
We may amend these Terms in the future by notifying you in writing. The amended Terms will thereafter apply to each Order you place unless you earlier give us written notice in advance of placing a further Order.
26. Assignment
A party may only assign its rights under the contract for supply with the written consent of the other party.
27. Subcontracting
27.1. You acknowledge that, given the nature of our business we may subcontract:
(a) the manufacturing or supply of any part of the Goods to be supplied; and
(b) the Services we are to provide (or any part of those Services),
however, doing so will not relieve us of any of our obligations to you under any contract of which these Terms form part.
28. Conflicts and Inconsistencies
If there is any conflict or inconsistency between any of the documents which together govern the relationship between the parties, it is agreed the order of precedence will be (highest to lowest):
(a) any additional terms or conditions contained in our quotation applicable to the supply of Goods or Services;
(b) any terms governing your Credit Facility; and
( c) these Terms.
29. Severance
If any part or term of our agreement with you (including any Credit Facility) is illegal, invalid, or unenforceable, it will be read down so far as necessary to give it a valid and enforceable operation or, if that is not possible, it will be severed from the contract and the remaining provisions will not be affected, prejudiced, or impaired by such severance.
30. Governing law and jurisdiction
30.1. Our relationship is governed by and must be construed according to the law applying in the Australian State the relevant Supplier is located and from whom you purchased Goods or Services from.
30.2 Subject to clause 29.1, the parties irrevocably submit to the non-exclusive jurisdiction of the courts of the relevant Supplier’s Australian State, with respect to any proceedings that may be brought at any time relating to our relationship.
31. Definitions
In these Terms, unless the context otherwise requires, the following definitions apply.
31.1. Approval means any authorisation, assessment, accreditation, determination, registration, clearance, permit, licence, consent, certificate, or other approval obtained or required or applying in connection with any contract of which these Terms form part.
31.2. Australian Consumer Law means Schedule 2 to the Competition and Consumer Act 2010 (Cth), as amended.
31.3. Claim includes a claim, notice, demand, action, proceeding, litigation, investigation, judgment, or award howsoever arising, whether present, unascertained, immediate, future, or contingent, whether based in contract, tort, pursuant to statute or otherwise and whether involving a third party or a party to a contract for supply.
31.4. Confidential Information includes:
(a) any information relating to our business and affairs;
(b) any information that is by its nature confidential;
( c) any information which is designated by us as confidential;
(d) any information that you know, or ought to know, is confidential; and
(e) all financial information, pricing information, and commercially valuable information of ours.
31.5. Consequential Loss includes any:
(a) consequential loss;
(b) loss of anticipated or actual profits or revenue;
( c) loss of production or use;
(d) financial or holding costs;
(e) loss or failure to realise any anticipated savings;
(f) loss or denial of business or commercial opportunity;
(g) loss of or damage to goodwill, business reputation, future reputation, or publicity;
(h) loss or corruption of data;
(i) downtime costs or wasted overheads; or
(j) special, punitive, or exemplary damages.
31.6. Consumer Contract has the meaning given to this term in section 23(3) of the Australian Consumer Law.
31.7. Credit Facility means an account we have opened for you on which we may, from time to time, extend you with additional time to pay for our Goods and Services and associated charges.
31.8. Customer, you means the person or other entity who has placed an Order with us for the supply of Goods or Services (or the person on whose behalf an Order is placed).
31.9. Force Majeure Event means any act of God, acts, decrees, or regulations of Government Authorities, casualty, fire, explosion, storm, flood, frost or snow, earthquake, embargo, industrial action, strike, lockout, civil commotion, riot, insurrection, war, epidemic or pandemic, damage to or destruction of facilities, equipment or mechanical breakdown, failure of a third-party supplier or service provider, or any other occurrence which is not in the reasonable control of the affected Party.
31.10. Goods means all goods supplied by us, as described on our quotation, invoice, or any other form issued by us.
31.11. Intellectual Property Rights means all industrial and intellectual property rights throughout the world, whether present or future, and whether protectable by statue, at common law or in equity, including rights in relation to copyright, trade secrets, know how, trade marks (whether registered or unregistered or whether in word or logo/device form), designs, patents and patentable inventions, including the right to apply for registration of any such rights.
31.12. Order means a written or oral order placed by you requesting that we provide Goods or Services.
31.13. Personnel means officers, employees, and agents engaged by each party (but does not include the other party) and, in the case of the Supplier, includes its subcontractors (and any employee of those subcontractors).
31.14. PPS Act means the Personal Property Securities Act 2009 (Cth), as amended.
31.15. Services means all services performed by us, as described on our quotation, invoice, or any other form issued by us.
31.16. Site means the location where the Services are to be performed.
31.17. Small Business Contract has the meaning given to this term in section 23(4) of the Australian Consumer Law.
31.18. Supplier, we, us means the following entities (severally, not jointly): Advanced Video Integration Pty Ltd (ACN 151 407 671), All A.V. Pty Limited (ACN 069 960 569), Dynamic Audio Visual Solutions Pty Ltd (ACN 127 736 912), Electronic Concepts Pty Ltd (ACN 008 141 124), Embedded Digital Design Pty Ltd (ACN 135 802 087), Pro AV Solutions Australia Pty Limited (ACN 158 809 502), Pro AV Solutions Pty Limited (ACN 158 642 650), and Pro AV Solutions (ACT) Pty Limited (ACN 636 895 602).
31.19. Working Documents means all plans, designs, specifications, and schedules created by us in the course of or in relation to any contract in which Intellectual Property Rights may subsist and all drafts, variations, alterations, and adaptations of such plans, designs, specifications, and schedules (whether currently existing or created in the future).
32. Interpretation
In these Terms, unless the context otherwise requires:
32.1. A time is a reference to the time zone of Sydney, Australia unless otherwise specified.
32.2. $, dollar, or AUD is a reference to the lawful currency of Australia.
32.3. A party includes a reference to that person’s executors, administrators, successors, substitutes (including a person who becomes a party by novation), assigns, and in the case of a trustee, includes any substituted or additional trustee.
32.4. A right includes a benefit, remedy, authority, discretion, or power.
32.5. The singular includes the plural and vice versa, and a gender includes other genders.
32.6. “In writing” or “written” means any expression of information in words, numbers, or other symbols, which can be read, reproduced, and later communicated, and includes electronically transmitted and stored information.
32.7. If a word or phrase is given a defined meaning, its other grammatical forms have a corresponding meaning.
32.8. Words such as “includes”, “including”, and “for example” are not words of limitation and are to be construed as though followed by the words “without limitation”.
32.9. A term of an agreement in favour of two or more persons is for the benefit of them jointly and each of them separately.
