Terms and Conditions
TERMS AND CONDITIONS OF HIRE – NIGHT WORKS AUDIO
In these Terms and Conditions, the following words or phrases shall have the
Following meaning:
1. “Hirer” means a person, company and its directors or other entity who has
ordered goods from the Owner, their employees, agents or contractors and to
whom the Owner supplies or is to supply goods pursuant to this Contract. If
a Hirer is a company, its directors agree to personally guarantee performance
of this Contract.
2. “Owner” means Night Works Audio and its authorised representatives.
3. “Goods” means the goods to which the Owner supplies pursuant to this
contract in addition to any other items or services included or implied
whether expressly noted or not.
4. “Contract” means a contract for the hire of Goods made by or on behalf of
the Owner with a Hirer.
5. “Order” means an order in writing, verbally, by fax or by email for the Goods
received and accepted by the Owner to the Hirer.
These terms and conditions shall govern and shall prevail over any terms or
conditions contained or referred to in any correspondence, order, or
documentation submitted by the Hirer or elsewhere implied during the course of
dealings.
1. Order
1.1 The Hirer’s placement of an Order and the Owner’s acceptance of an Order
constitutes an unqualified acceptance of these conditions by the Hirer.
1.2 A quotation by the Owner does not constitute an offer and the Owner
reserves the right to withdraw or reverse a quotation at any time before it
accepts an Order.
1.3 An Order may be placed verbally and may be confirmed in writing,
although the Owner may choose to accept a verbal Order which is not so
confirmed.
1.4 The Owner’s acceptance of any Order shall be effective only where such
acceptance is made in writing by its authorised representative.
2. Delivery
2.1 The dates mentioned in any quote, order or acceptance form, or
elsewhere, for the delivery of the Goods are approximate only and time
for delivery is not of the essence and shall not be made so by the service
of any notice. The Owner accepts no liability for failure to deliver on or by
a particular date or dates.
2.2 Where a particular time and/or date have been made expressly or
specifically agreed with the Owner, the Owner shall use all reasonable
endeavours to deliver the Goods at that time or on that date.
2.3 The Hirer is solely responsible for the Goods from the time the Goods
depart from the premises of the Owner. The Hirer shall indemnify the
Owner against each loss, liability and the cost arising as a result of the
Owner or its subcontractors or a third party assisting the Hirer in the
unloading, loading or other removal of the Goods from the Owner’s
premises.
2.4 Unless otherwise expressly agreed, the Owner may effect delivery in one
or more installments.
3. Price and Payment
3.1 The Hirer agrees to pay:
(a) the Owner’s hire charge calculated from the day of delivery to the
Hirer to date of return to the Owner as indicated on the Owner’s
invoice;
(b) transport costs for delivery of the Goods at the address nominated
by the Hirer and their return to the Owner;
(c) any charges for loss, damage and repairs to the Goods whilst in the
possession of the Hirer;
(d) any tax, GST duty or other levy;
(e) other expenses paid or payable by the Owner.
3.2 If not otherwise specified by the Owner in writing, all hiring charges
including taxes and duties are to be paid prior to delivery of the Goods.
3.3 Subsequent charges for loss, damage, repairs or other expenses are to be
paid within seven (7) days of the relevant invoice.
3.4 The Hirer agrees to pay any expenses incurred or loss suffered by the
Owner as a result of breach by the Hirer of its obligations pursuant to
these terms (including legal costs on a solicitor/client basis).
3.5 Time of payment is of the essence of this Contract and the Owner reserves
the right to withdraw any discount or suspend the provision of any Goods
under the Contract to the Hirer where any amounts are overdue under this
or any Contract and until all such amounts have been paid.
3.6 The Hirer is not entitled to withhold payment of any amount due to the
Owner by any way of setoff or counterclaim.
3.7 If the Hirer fails to pay any amount due to the Owner under this or any
other Contract by the due date, interest shall be added to such amount at
the rate of 10% per annum for the period from the due date until and
including the date of receipt of full payment to the Owner.
3.8 The Owner reserves the right to alter or withdraw at any time any line of
credit allowed to the Hirer.
3.9 The Hirer authorises the Owner to commission the Goods by remote
access upon payment in full of all amounts owing by the Hirer to the
Owner under this Contract or any other Contract between the parties.
4. Hirer’s Obligations
4.1 The Hirer agrees that the Goods will be competently installed and
operated by the Hirer or agents of the Hirer.
4.2 The Goods must not be modified or altered in any way by the Hirer or
agent of the Hirer.
4.3 The Hirer agrees to use the Goods in a proper and safe manner and only
for the purpose and capacity for which the Goods were designed.
4.4 The Hirer agrees to return the Goods or have the Goods ready for
collection by the Owner in a clean, dry and properly packed condition and
if being collected, are in a form suitable for collection. The Hirer will pay
for any cleaning costs or any damage resulting from the Goods not being
properly cleaned or packed.
4.5 The Hirer must notify the Owner immediately if the Goods are not
functioning or working properly. In the event that there is a defect in the
Goods, the Owner will be limited to the repair or replacement of any
defective Goods at the Owner’s discretion.
4.6 The Hirer is responsible for obtaining any license, qualification or
requirement by authority for the safe and legal operation of the Goods
hired and agrees to abide by all safety and legal guidelines relating to the
installation and operation of the Goods.
5. Damage to Goods
5.1 If the Goods are lost, break down or damaged whilst in the control of the
Hirer, the Hirer must immediately notify the Owner of such loss or
damage.
5.2 In the event that the Goods break down or become unsafe to use, the
Hirer shall immediately stop using the Goods and take all necessary steps
to prevent the Goods from sustaining any further injury or damage.
5.3 The Hirer must not repair or attempt to repair the Goods without the
Owner’s prior written consent.
5.4 If the Goods are lost or damaged (other than theft by any person other
than the Hirer) and the loss or damage to the Goods is caused whilst in
the control of the Hirer (regardless whether or not due to the negligence,
act or default of the Hirer) or the breach of any of these terms by the
Hirer, the Hirer shall be liable for the following:
(a) any costs incurred by the Owner in repairing or replacing the
Goods;
(b) hire charges for the Goods until the Goods are repaired or replaced;
(c) any other costs whatsoever incurred or loss suffered by the Owner
as a result of the damage or loss to the Goods.
6. Title and Inspection of Goods
6.1 The Hirer acknowledges that all property and title to the Goods at all times
remains with the Owner. The Hirer does not acquire any property in or
title to the Goods.
6.2 The Hirer acknowledges that the Owner may inspect the Goods at any
time during the period of hire, whether notice of such inspection is given
to the Hirer or not, and the Hirer shall provide all assistance and cooperation
necessary to facilitate such inspection of the Goods.
6.3 The Hirer shall indemnify the Owner in relation to any action of trespass or
any other action or claim against the Owner in the course of the Owner
executing its right to inspect the Goods.
7. Termination of Hire
7.1 The Owner may terminate the hire at any time.
7.2 The Hirer shall have no claims for such termination except at the
expiration of the agreement.
7.3 If the equipment is not finally returned or ready for pickup by the Owner
at the expiration or termination of the hire period, the Hirer shall pay a
continuing charge of 150% of the daily rate referred to in this Contract for
every additional day or part thereof that the equipment is retained by the
Hirer unless otherwise specified by the Owner.
7.4 Where the Hirer cancels the hire after an order has been accepted by the
Owner, the Hirer shall be liable for all labour and delivery costs and 10%
of the total cost of the hire.
7.5 If the Hirer breaches any term of this agreement the Owner may
terminate the hire agreement and the Owner may:
(a) take repossession of all or part of any of the Goods and enter into
the premises for that purpose, or authorise others to do so, which
the Hirer hereby authorises; and
(b) require delivery of the Goods or any part of the Goods to the
premises of the Owner at the expense of the Hirer.
8. Release and Indemnity
8.1 The Hirer releases the Owner from, and agrees to indemnify the Owner in
respect of any third party claims, actions, suits, demands, costs and
expenses for damage or injury to personal property arising directly or
indirectly out of the hire of use of the Goods by the Hirer.
9. Acknowledgements
9.1 The Hirer acknowledges that –
(a) it has not relied on any representations made by the Owner as to
the suitability of the Goods for any specific purpose; and
(b) it is its responsibility to make its own enquiries and investigations
as to the suitability of the Goods for any particular purpose.
10. Severance
10.1 If any part of this Agreement is invalid or unenforceable, this Agreement
does not include it. The remainder of this Agreement continues in full
force.
11. Governing Law
11.1 These terms and conditions shall be governed by and construed in
accordance with the laws in force in the State of New South Wales and the
Owner and Hirer submit to the jurisdiction of the Courts of that State.
TERMS AND CONDITIONS OF SALE – NIGHT WORKS AUDIO
In these Terms and Conditions, the following words or phrases shall have the
following meaning:
1. “Buyer” means a person, company and its directors or other entity who has
ordered goods from the Seller and to whom the Seller supplies or is to supply
goods pursuant to this Contract. If a Buyer is a company, its directors agree
to personally guarantee performance of this Contract.
2. “Seller” means Night Works Audio and its authorized representatives.
3. “Goods” means the goods to which the seller supplies pursuant to this
contract in addition to any other items or services included or implied
whether expressly noted or not.
4. “Contract” means a contract for the sale of Goods made by or on behalf of
the Seller with a Buyer.
5. “Order” means an order in writing, verbally, by fax or by email for the goods
received and accepted by the Seller to the Buyer.
These terms and conditions shall govern and shall prevail over any terms or
conditions contained or referred to in any correspondence, order, or
documentation submitted by the Buyer or elsewhere implied during the course of
dealings.
1. Order
1.1 The Buyer’s placement of an Order and the Seller’s acceptance of an Order
constitutes an unqualified acceptance of these conditions by the Buyer.
1.2 A quotation by the Seller does not constitute an offer and the Seller
reserves the right to withdraw or reverse a quotation at any time prior
before it accepts an Order.
1.3 An Order may be placed verbally and may be confirmed in writing,
although the Seller may choose to accept a verbal Order which is not so
confirmed.
1.4 The Seller’s acceptance of any Order shall be effective only where such
acceptance is made in writing by its authorized representative.
2. Delivery
2.1 The dates mentioned in any quote, order or acceptance form, or
elsewhere, for the delivery of the goods are approximate only and time for
delivery is not of the essence and shall not be made so by the service of
any notice. The Seller accepts no liability for failure to deliver on or by a
particular date or dates.
2.2 Where a particular time and/or date have been made expressly or
specifically agreed with the Seller, the Seller shall use all reasonable
endeavours to deliver the Goods at that time or on that date.
2.3 The Buyer is solely responsible for the Goods from the time the Goods
depart from the premises of the Seller. The Buyer shall indemnify the
Seller against each loss, liability and the cost arising as a result of the
Seller or its subcontractors or a third party assisting the Buyer in the
unloading, loading or other removal of the Goods from the Seller’s
premises.
2.4 If the Buyer refuses or fails to take delivery of the Goods, delivered in
accordance with the Contract or fails to take any action necessary on its
part for delivery of the Goods, the Seller is entitled to terminate the
contract with immediate effect, dispose of the Goods as the Seller may
determine and to recover from the Buyer any loss or additional costs
incurred as a result of such refusal or failure, including without limitation,
storage costs from the due date of departure from the Seller’s premises.
2.5 Unless otherwise expressly agreed, the Seller may effect delivery in one or
more installments.
3. Risk and Title
3.1 Risk for the goods passes to the Buyer when the Goods leave the premises
of the Seller but title to the Goods (whether separate and identified or
incorporated in or mixed with other goods) remains with the Seller until
the Buyer pays to the Seller the agreed price for the Goods, together with
any accrued interest at the rate specified in condition 4.5 if payment is
made late, and all other amounts owed by the Buyer to the Seller in
respect of any other Goods or agreement.
3.2 Until title of the goods passes to the Buyer, the Buyer shall –
(a) keep the goods separately and readily identifiable as the property of
the Seller and;
(b) not attach the goods to real property.
3.3 At any time before title of the goods passes to the Buyer, the Seller may –
(a) take repossession of all or part of any of the Goods and enter any
premises for that purpose, or authorize others to do so, which the
Buyer hereby authorizes; and
(b) require delivery of the Goods or any part of the Goods to the
premises of the Seller at the expense of the Buyer.
3.4 From the time the Goods leave the premises of the Seller and until title in
the Goods passes to the Buyer, the Buyer shall insure the goods for their
full value with a reputable insurer and if the Seller so requests, ensure
that the Seller’s name is noted on the insurance policy. Until title of the
Goods passes to the Buyer, the Buyer shall hold the proceeds of any claim
3 on such insurance policy on trust for the Seller and shall immediately
account to the Seller with the proceeds.
4. Price and Payment
4.1 The price of each of the Goods to be paid by the Buyer to the Seller and
the date for payment are specified in the Seller’s invoice. All prices
quoted are inclusive of Goods and Services Tax (“GST”) and any other
taxes and duties.
4.2 The Seller may require payment in full or in part of the price prior to
delivery or the provision of security for payment by the Buyer in such form
as is acceptable to the Seller. The Seller may, at its sole discretion,
accept progress payments from the Buyer.
4.3 The Seller may at any time prior to the Goods departing from the
premises of the Seller –
(a) withdraw any discount from its normal prices; and
(b) revise prices take into account increases of costs such as the cost of
goods, raw materials, transport or overhead costs.
4.4 Time of payment is of the essence of this Contract and the Seller reserves
the right to withdraw any discount or suspend the provision of any Goods
under to the Buyer where any amounts are overdue under this or any
Contract and until all such amounts have been paid.
4.5 The Buyer is not entitled to withhold payment of any amount due to the
Seller by any way of setoff or counterclaim.
4.6 If the Buyer fails to pay any amount due to the Seller under this or any
other Contract by the due date, interest shall be added to such amount at
the rate of 10% per annum for the period from the due date until and
including the date of receipt of full payment to the Seller.
4.7 The Seller reserves the right to alter or withdraw at any time any line of
credit allowed to the Buyer.
4.8 The Buyer authorizes the Seller to commission the Goods by remote
access upon payment in full of all amounts owing by the Buyer to the
Seller under this Contract or any other Contract between the parties.
4.9 If the Buyer breaches these terms and conditions, the Buyer must pay any
collection, commission and / or legal fees (on a solicitor/client basis)
charged by any party to recover any money due.
5. Warranties
5.1 The Seller warrants that the Goods for a period of 12 months from the
date of purchase –
(a) are of satisfactory quality; and
4 (b) be reasonably fit for the purpose for which they are sold.
5.2 The warranties in this clause are given on the following conditions –
(a) the Seller is not liable for a defect in the Goods caused by fair wear
and tear, abnormal or unsuitable conditions of storage or use or an
act, neglect or default of the Buyer or of any other party; and
(b) the Seller is not liable for a defect in the Goods caused by the use
by the Buyer in conjunction with the goods of any ancillary
components, including but not limited to connections or cables; and
(c) the Seller is not liable for a defect in the Goods which was present
from the date of purchase unless it is notified to the Seller in writing
within 3 working days from the date the Buyer receives the Goods;
and
(d) All warranties are voided if the Goods are found in any way to be
mishandled, misinstalled, modified, tampered, abused, physically
damaged or used under wrong voltage, and the like.
5.3 Where the Seller receives notification regarding defective Goods from the
Buyer within 3 working days from the date the Buyer receives the Goods,
it shall, at its discretion, refund the purchase price of the Goods or repair
or replace the defective goods. The Buyer shall bear the transporting
costs for such repair or replacement.
5.4 The Seller is not liable to the Buyer in contract, tort or otherwise for any
losses or damage to persons or property whether direct or indirect arising
out of the supply or non supply or delay in supplying the Goods or
otherwise in connection with this Contract.
6. Returns and transportation
6.1 Returns of Goods will only be accepted within 3 days of the Buyer
receiving the Goods and with the express authorization of the Seller.
Returned goods must be in their original condition and include all the
original packaging and must be received by the Seller within 7 days of the
Buyer receiving the Goods. Transportation costs for returned items are
not refundable and are at the expense of the Buyer.
6.2 Each returned Good must be made with a return authorization reference
number prior to returning any Goods. If the returned Goods are
determined not to be faulty, the Buyer must bear the costs of all
transportation and the Seller reserves the right to charge for labour costs
for examining these Goods when no fault was found.
6.3 If a Good is returned by the Buyer and authorized by the Seller and the
Seller determines the Good to be faulty, any administration or other
charges will be at the expense of the Buyer.
6.3 The Seller is not responsible for any parcel missing in transit, or on its
return back to the Seller.
5
6.4 Spare parts and other special order items are not refundable or
returnable.
7. Variation
7.1 If the Buyer requests that the Order for Goods as stated on the Seller’s
invoice be varied before or after delivery of any Goods, the request for
variation must be put in writing and approved by the Seller.
7.2 Any costs associated with the Buyer’s request for variation of the Order
before or after delivery of any Goods shall be at the expense of the Buyer,
including but not limited to any increase in cost of the varied Goods and
shall be payable in accordance with the terms as identified in the
variation.
8. Termination
8.1 On or at any time after the occurrence of the Buyer being in liquidation,
entering into bankruptcy or administrator appointed, the Seller may –
(a) stop any Goods in transit;
(b) suspend further deliveries to the Buyer;
(c) terminate any contract forthwith by giving notice to that effect to
the Buyer; and
8.2 On termination of this Contract, any indebtedness under any contract of
the Buyer to the Seller shall become immediately due and payable and the
Seller is relieved of any further obligation to supply Goods to the Buyer
pursuant to this Contract.
9. Service and Support
9.1 The Seller shall provide at its sole option and for as long and for such
hours as it may decide telephone support for the Buyer on such terms and
conditions as the Seller may from time to time determine.
9.2 Upon receipt of notification from the Buyer that the Goods have failed or
are malfunctioning, and in the event that the problem cannot be rectified
using telephone support, the Seller undertakes to use all reasonable
endeavours during business hours to make such corrections to restore the
Goods to their proper operating condition. The extent of such remedial
support and whether this is achieved remotely or by an onsite visit by the
Seller will be determined by the Seller in its discretion.
9.3 The Seller reserves the right to charge a reasonable fee for any service or
support it provides. The Seller will provide written advice in advance if
any charge is to be made and the manner in which such charge is to be
calculated.
9.4 The Seller’s service and support do not include support which is
necessitated as a result of any cause or fault as a result of:
6(a) failure or fluctuation of electric power, air conditioning, humidity
control or other environmental conditions; or
(b) accident transportation, neglect, misuse, abuse or default of or by
the Buyer, its employees, or agents or any third party; or
(c) any fault in any Goods or components which are not supplied by the
Seller whether or not –
a. they form part of the Buyer’s configuration of the products; or
b. they comprise the Buyer’s configuration of the products for an
integral part of them;
(d) any act of God, lightening, fire, flood, war, act of violence or any
other similar occurrence.
9.5 The Buyer agrees that where such of the Goods are covered by a relevant
manufacturer’s warranty to utilise that warranty for the support of such
Goods and in any event not to look to the Seller for such support.
10. Acknowledgements
10.1 The Buyer acknowledges that –
(a) it has not relied on any representations made by the Seller as to
the suitability of the Goods for any specific purpose; and
(b) it is its responsibility to make its own enquiries and investigations
as to the suitability of the Goods for any particular purpose.
11. Governing Law
11.1 These terms and conditions shall be governed by and construed in
accordance with the laws in force in the State of New South Wales and the
Seller and Buyer submit to the jurisdiction of the Courts of that State.