Terms and Conditions
1 Definitions & Interpretation
In these Terms and Conditions:
Agreement means an agreement between AVPartners and the Client containing the terms of AVPartners’ provision of Services for an Event and includes these Terms and Conditions.
Claim includes all present and future claims (including but not limited to third party claims), suits, actions, demands, litigation, proceedings or threats whether:
(a) criminal, administrative or by way of arbitration or expert determination; or
(b) before any court, arbitrator, expert, tribunal, board commission, authority, agency, department or officer.
Client means a client who has entered into an Agreement for the provision of Services.
Data means, where a Client uses any of AVPartners' computer equipment during the Event to present any Client materials relating to the Event, all data provided by Client to AVPartners that is saved on or copied to the relevant AVPartners computer for use by the Client.
Equipment means the audiovisual, staging, production equipment owned, leased or provided for use at the Event by AVPartners.
Event means an event or function at the Venue.
Event Date means the date upon which an Event is to be held.
Event Proposal means the proposal for Services.
Event Times means the times between which an Event is to be held.
Fees means AVPartners’ fees for the provision of Services for an Event as specified in the Agreement for that Event.
GST means the Goods and Services Tax imposed under the GST Act.
GST Act means the A New Tax System (Goods and Services Tax) Act 1999 (Cth).
Indemnified Parties means for each party, that party, its officers, employees, contractors and related entities (and their officers, employees and contractors), and, in the case of the Venue, its manager.
Losses means all losses (including consequential losses), costs (including legal costs on a full indemnity basis), expenses, penalties and liabilities regardless of when or how these losses are suffered or incurred.
Services means audiovisual, event staging, event production services and related services.
Venue means the location at which the event is to be held.
These Terms and Conditions will be considered to be accepted by the acceptance of the Event Proposal.
3 The Services
3.1 HOW WE WILL PROVIDE THE SERVICES
We will provide the Services to you in accordance with and subject to:
(a) the Event Proposal;
(b) standard industry practices and standards;
(c) any special conditions specified in the Event Proposal;
(d) your reasonable instructions;
(e) all reasonable instructions from the staff at the Venue; and
(f) these Terms and Conditions.
3.2 ADDITIONAL SERVICES
Unless we agree otherwise, we will not be obliged to provide to you any additional services that are not specified in the Event Proposal. If we agree to provide you with additional services, the Fees will be increased to include our fees and expenses for those additional services.
You acknowledge that we may engage contractors to provide all or part of the Services.
We reserve the right to terminate the provision of all or any part of the Services, at any time without notice and without any liability to you or any other person if we consider in our absolute discretion that the provision of the Services for the Event may:
(a) jeopardise the health, safety or welfare of any person;
(b) cause damage to property; or
(c) cause us to be in breach of any laws.
(a) If you use our computer equipment during the Event to assist with presentation of your materials to attendees at the Event, you acknowledge and agree that we will be entitled to delete the Data from our computer equipment and destroy all copies of Data following the conclusion of the Event. If you wish to have a copy of the Data returned to you, you must provide us with a written request for a copy of the Data at least 48 hours prior to the commencement of the Event, and we will send a copy of the Data to you within seven (7) days of conclusion of the Event.
(b) If you request to record your Event (Recording), we guarantee to provide a copy of the Recording and further copies can be made available to you at your written request for up to 30 days after the Event. We do not guarantee copies of the Recording will be made available more than 30 days after the Event. We will delete the Recording/s at any time on receipt of a written request from you.
3.6 PROVIDED EQUIPMENT
All equipment required as part of the delivery of service as documented in the Event Proposal for your event will be provided. If AVPartners has a shortage of equipment or the required equipment is out of commission at the time of your event, AVPartners will source alternative equipment of equivalent or better quality at no additional cost to you.
4.1 YOUR USE OF EQUIPMENT
You must, and must ensure that your employees and all other persons at the Event, only use our audiovisual equipment or the audiovisual equipment at the Venue:
(a) in accordance with all reasonable instructions from us or the staff of the Venue;
(b) only for the purposes for which it was intended; and
(c) with all reasonable care.
4.2 LIABILITY FOR DAMAGE
You are liable for any loss or damage to the Equipment, which is caused by you, your employees, or any person attending the Event.
4.3 PAYMENT FOR DAMAGE
Without limiting our rights, you must within seven days of receiving a demand from us or the Venue operators either (as specified in the notice):
(a) pay us the cost of repairing the damaged Equipment; or
(b) pay us the full replacement cost of the Equipment if it is lost or if we determine it is irreparably damaged.
5.1 LIABILITY TO PAY FEES
You must pay the Fees in accordance with this clause 5 and the Event Proposal.
5.2 PAYMENT TO VENUE
(a) Unless we otherwise advise you in writing, you must pay all Fees and other amounts payable by you under this Agreement to the Venue operator in accordance with the invoice issued to you by the Venue operator.
(b) Despite clause 5.2(a), we may recover Fees and any other amounts payable by you under this Agreement directly from you.
5.3 FEES MAY CHANGE
The Fees specified in the Event Proposal are estimates only and may change:
(a) if the Event Date changes;
(b) if you request us to provide different services to those specified in the Event Proposal;
(c) if the Event runs for longer than the Event Times, or if the Event Times change; or
(d) if you and us agree for any reason.
5.4 TERMINATION FOR NON-PAYMENT OF DEPOSIT
If you do not pay any deposit or part payment by the due date for that payment, we may immediately terminate this Agreement for the provision of Services by written notice to you, and we will have no liability to you or any other person in relation to termination of this Agreement.
5.5 ENFORCING PAYMENT
You must reimburse us for all reasonable expenses and costs (including but not limited to legal costs and debt recovery costs) incurred by us or the Venue operators, or for which we or the Venue operators are liable, in recovering any and all overdue amounts payable under this Agreement.
5.6 WHEN PAYMENT IS DEEMED TO BE RECEIVED
All payments you are required to make under this Agreement will only be deemed to be received when cleared funds are received by us or the Venue operator (as applicable). You must make all payments in full and without any set-off or abatement.
5.7 OUR RIGHT TO CHARGE INTEREST
We may charge interest at the rate of 10% per annum (calculated daily) on any overdue amounts up until the date that payment is received.
5.8 SET-OFF AGAINST DEPOSIT
We may set-off any amounts you are required to pay under this Agreement (including cancellation fees) against any amounts that you have already paid to us.
Subject to clause 6.2, you may only cancel the Services by written notice to us.
6.2 CANCELLATION FEES
If you cancel the provision of the Services at any time after you have signed the Event Proposal, you must at the time of cancellation pay us an amount equal to:
(a) the proportion of the Fee imposed by the Venue on you pursuant to the Venue’s terms and conditions;
(b) all non-refundable or non-cancellable costs or liabilities incurred by us or the Venue operator which relate to the Services or the Event (such as the hire of equipment or the engagement of personnel); and
(c) any costs recoverable under clause 5.5.
Expressions in this clause which are not defined in this Agreement but which are defined in the GST Act have the same meaning as in that Act.
7.2 CONSIDERATION IS EXCLUSIVE OF GST
Unless otherwise expressly stated, all amounts, prices, values or other sums payable or to be provided under this Agreement are exclusive of GST.
7.3 GST ON TAXABLE SUPPLY
If GST is payable on any supply made under this Agreement:
(a) the recipient of the taxable supply must pay to the supplier an amount equal to the GST payable on the taxable supply in addition to and at the same time as payment for the taxable supply is required to be made under this Agreement; and
(b) the supplier must give the recipient a tax invoice for the taxable supply.
You warrant to us that:
(a) you are able to enter into and fulfil your obligations under this Agreement;
(b) the person signing the Event Proposal has full power and authority to enter into this Agreement on your behalf; and
(c) you are not entering into this Agreement on the basis of any representations, promise or undertaking provided by us or on our behalf, unless that representation, promise or warranty is expressly stated in this Agreement or the Event Proposal.
8.2 INTELLECTUAL PROPERTY
You warrant to us that you have, and acknowledge that you are solely responsible for ensuring, that you and any applicable third party have appropriate rights and permissions to use any third party intellectual property rights (including rights in patents, designs, copyright, know how, performers rights, moral rights, trade secrets, confidential information, trademarks, service marks, circuit layouts, goodwill and all other similar rights) as part of the Event, including in music, film, performances, and in graphic or printed matter.
8.3 STREAMING AND RECORDING
If you request us to record, stream, or otherwise reproduce or communicate to the public any part of the Event (Streaming), you must obtain and maintain, at your own cost, all necessary rights and licences (including sublicences) to any necessary intellectual property rights (including the copyright subsisting in any music, literary works, or sound recordings) and must grant a sublicense to, or procure a licence for, AVPartners on equivalent terms, to enable AVPartners to undertake the Streaming.
9 Insurance & Risk
The Venue operators may require you to hold public liability or other insurance for the Event. We may or may not hold insurance in respect of the provision of part or all of the Services for the Event. Any insurance we hold will not extend to your own liability in respect of the Event. You warrant that you have made your own enquiries regarding your public liability exposure and other risks arising from the Event and whether insurance to cover such risks is desirable.
(a) We will not be liable for, and you indemnify and will keep us, our officers, employees and contractors (Indemnified Parties) indemnified against any and all Claims or Losses arising from your negligence, misconduct and/or breach of any of your obligations or warranties under this Agreement.
(b) In this clause, Claims includes all present and future claims (including but not limited to third party claims), actions, demands, proceedings or threats brought against any of the Indemnified Parties.
(c) In this clause Losses includes consequential losses, costs (including legal costs on a full indemnity basis), expenses, penalties and liabilities whatsoever and whenever incurred or suffered by any of the Indemnified Parties.
10.1 WHEN WE MAY TERMINATE THE SERVICES
We may immediately terminate this Agreement and the provision of the Services:
(a) in accordance with any express right in this Agreement;
(b) if you are in breach of any of your obligations or warranties under this Agreement provided that, if the breach is capable of being remedied, we may elect to give you notice specifying the breach and requiring its remedy within a reasonable time, and in such case we may terminate this Agreement if you have not rectified the breach within the time specified in such notice;
(c) you have a receiver, receiver and manager, trustee in bankruptcy, administrator, liquidator or controller appointed; or
(d) we determine or suspect on reasonable grounds that you are unable to pay your debts as and when they fall due.
10.2 CONSEQUENCES OF TERMINATION
If we terminate the provision of Services under clause 10.1, you will be deemed to have cancelled the provision of the Services, and the provisions of clause 6.2 regarding payment of cancellation fees will apply.
10.3 NO WAIVER
Termination of this Agreement does not prejudice any of our rights or entitlements which have accrued before termination.
11.1 EXCLUSION OF WARRANTIES
All terms, conditions and warranties implied into this Agreement by statute, common law or otherwise, and all liability for any direct, indirect or consequential loss (including without limitation, any loss of profits, loss of revenue or loss of opportunity) arising in any way (including, without limitation, as a result of our negligence), are excluded from this Agreement except where to do so would contravene any statute or cause any part of this Agreement to be void or unenforceable.
Nothing in these Terms and Conditions excludes, restricts or modifies any right or remedy, guarantee, warranty or any legislation that cannot lawfully be excluded or limited, including under the Australian Consumer Law.
11.2 LIMITATION OF LIABILITY
To the extent that we cannot lawfully exclude liability under clause 11.1, our liability relating to or arising under this Agreement or from the Services is limited to (at our option):
(a) in the case of goods, replacing or repairing the goods, or paying the cost of having the goods replaced or repaired; and
(b) in the case of services, re-supplying the services, or paying the cost of having the services resupplied.
To the extent permitted by law, any other liability arising from the Event or relating to this Agreement is your responsibility.
11.3 FORCE MAJEURE
If we are prevented from or delayed in complying with an obligation under this Agreement by an event beyond our reasonable control (including acts of God, acts of war, breakdown or destruction of plant and equipment, strike or lock-out) performance of that obligation is suspended during the time and only to the extent that compliance is prevented or delayed. We will not be liable to you or any third party for any loss, damage, cost or expense incurred as a result of or arising from such delay or failure to comply.
12.1 ENTIRE AGREEMENT
In relation to its subject matter this Agreement:
(a) constitutes the entire agreement between the parties; and
(b) supersedes any previous representations, understandings or agreements.
Unless specifically stated to the contrary, in this Agreement:
(a) any failure to enforce or a delay in enforcing any right under this Agreement does not constitute a waiver of those rights; and
(b) a partial exercise of a right does not preclude any further exercise of that or any other right.
If any provision of this Agreement is held to be void, prohibited, invalid or unenforceable in any jurisdiction:
(a) that provision is ineffective to the extent of the prohibition, invalidity or unenforceability in that jurisdiction;
(b) the validity or enforceability of that provision is not affected in any other jurisdiction; and
(c) the remaining provisions of this Agreement are not affected.
The person who signs the Event Proposal on your behalf declares that they are authorised to sign the Event Proposal on your behalf and further that they have no notice of the revocation or suspension of the authority by which that person signs the Event Proposal.
12.5 YOU MUST NOT ASSIGN
You may only assign any of your rights or obligations under this Agreement with our prior written consent.
12.6 WE MAY ASSIGN OR NOVATE
We can assign any of our obligations under this Agreement, or novate this Agreement, on written notice to you.
12.7 FURTHER ASSURANCES
You must do everything reasonably necessary to give effect to this Agreement and the transactions contemplated by it, including the execution of documents.
12.8 GOVERNING LAW
This Agreement is governed by the law in force in the State or Territory in which the Services are provided and the parties submit to the nonexclusive jurisdiction of the courts of or exercising jurisdiction in the State or Territory in which the Services are provided.
12.9 DISPUTE RESOLUTION
The parties must use their best endeavours to cooperatively resolve a dispute arising from this Agreement.
12.10 MEDIA RIGHTS
AVPartners may photograph, film or record your event. AVPartners reserves the right to use this media for promotional purposes.
12.11 JOINT AND SEVERAL
Where two or more parties have an obligation or liability under this Agreement, the obligation or liability is joint and several.
Clauses 3.4 to 9 (inclusive), 10.2, 10.3 and 11 to 13 (inclusive) survive the completion of the Services or the earlier termination of this Agreement.
12.13 COMPUTER AIDED DESIGN (CAD)
As part of our services, AVPartners will design your event floorplan to your specifications, including preparation of CAD floorplans at no additional cost. This service includes a reasonable number of changes to the floorplan design if requested by you. Should you request more than a reasonable number of changes to the floorplan, AVPartners will be entitled to charge a fee for preparation of additional CAD floorplans. AVPartners will obtain your approval to any additional fee before further CAD floorplans are produced.
These terms and conditions may only be varied with the prior written consent of AVPartners, which may be given or withheld in its absolute discretion. Any request to vary these terms and conditions must be accompanied by payment to AVPartners of the sum of $300 plus GST, being the estimated reasonable legal costs of AVPartners in connection with any request for variation of these terms and conditions.
13.1 INCONSISTENCY WITH THE PROPOSAL
If there is any inconsistency between the Event Proposal and these terms and conditions, the Event Proposal will prevail to the extent of the inconsistency.
In this Agreement, unless the context indicates a contrary intention:
(a) a reference to:
(i) an individual or person includes a corporation, partnership, venture, association, authority, trust, state or government;
(ii) a document including this Agreement, is to that document as amended, novated, renewed, substituted or supplemented at any time;
(iii) dollars or $ is to an amount in Australian currency; and
(iv) time is to time in the State or Territory in which the service is provided, Australia
(b) All capitalised expressions used in these terms and conditions have the meaning given to them on the front page.
(c) where an expression is defined, another part of speech or grammatical form of that expression has a corresponding meaning.
(d) headings are for convenience only and do not affect the interpretation.
(e) including and similar expressions are not to be treated as words of limitation.
(f) an obligation not to do something includes an obligation not to cause and not to permit it to be done.
(g) where consent or approval is required under this Agreement the requirement will mean the prior written consent or approval; and
(h) this Agreement is not to be construed against us because we were responsible for the preparation of this Agreement.