1. Definitions In these conditions:
“Conditions” means the terms of these Conditions of Sale, Rent or Lease: “Customer,” means a person, firm or corporation seeking to acquire goods or services from the Supplier: “Goods” means all goods or services supplied by the Supplier to the Customer: “Supplier” means Myles Audio Visual Sydney Pty. Ltd. (ABN.68 521 410 706), 51 Bourke Road, Alexandria, NSW, 2015.
2. Application of the Conditions
2.1 Unless otherwise agreed in writing, the Conditions will apply exclusively to every contract for the sale/hire of goods by the Supplier to the Customer and can not be varied or supplanted by any other conditions without the prior written consent of the Supplier. 2.2 Any written quotation provided by the supplier to the Customer concerning the proposed supply of goods is valid for 30 days, unless otherwise stated in the quotation, and is an invitation only to the Customer to place an order based upon that quotation. The quotation may include additional terms which are not inconsistent with the Conditions. 2.3 The Customer will comply with the procedure (if any) prescribed by the Supplier for the placing of orders. 2.4 The Supplier will not be deemed to have accepted an order by the customer unless it has communicated acceptance to the Customer in writing or has delivered the goods stated in the order.
3.1 Payment for goods must be made within terms of the Supplier’s invoice. 3.2 The Supplier may (if provided) withdraw any credit terms or require the provision of security at any time. 3.3 Where a credit or debit card number is provided for payment it is provided to cover the initial payment as well as sundry costs, charges if equipment is retained past the end of the hire term and as security against the equipment to cover loss, theft or damage.
4. Payment Default
4.1 If the Customer defaults in payment by the due date of any amount payable by the Customer to the Supplier at a later date on any account, becomes immediately due and payable without the requirement of any notice to the Customer, and the Supplier may, without prejudice to any other remedy available to it:- (a) charge the Customer interest on any sum due at the prevailing rate pursuant to the Penalty Interest Rates Act 1983 plus monthly 2 percent for the period from the due date until the date of payment in full; (b) charge the Customer for all expenses and costs (including legal costs on a solicitor / own client basis ) incurred by it resulting from the default and in taking whatever action it deems appropriate to recover any sum due: (c) cease or suspend for such period as the Supplier thinks fit, supply of any further goods to the Customer without additional notice. (d) by notice in writing to the Customer, terminate any contract with the Customer so far as unperformed by the Supplier: (e) without effect on the accrued rights of the Supplier under any contract. 4.2 Clauses 4.1 (c) and (d) may also be relied upon, at the option of the Supplier (a) where the Customer is an individual and becomes bankrupt or enters into any scheme of arrangement or any assignment or composition with or for the benefit of his or her creditors or any class of his or her creditors generally; or (b) where the Customer is a corporation and, it enters into any scheme of arrangement or any assignment or composition with or for the benefit of its creditors or any class of its creditors generally, or has a liquidator, administrator, receiver or receiver and manager appointed, or any action is taken for, or with the view to, the liquidation (including provisional liquidation), winding up or dissolution without winding up of the Customer. 4.3 In the event of a dispute, the Customer will not be entitled to withhold payment of any undisputed amount due to the Supplier.
5. Passing of Property in Sale Goods
5.1 Until full payment in cleared fund is received by the Supplier for all goods supplied by it to the Customer, as well as all other amounts owing to the Supplier by the Customer: (a) title of property in all purchased goods remain vested in the Supplier and do not pass to the Customer; (b) the Customer must hold the purchased goods as fiduciary bailee and agent for the Supplier; (c) the Customer must keep the purchased goods separate from its goods and maintain the labelling and packaging of the Supplier; (d) the Customer is required to hold the proceeds of any sale of the goods on trust for the Supplier in a separate account; (e) The Customer must deliver up all purchased goods to the Supplier immediately upon service of a written demand; (f) the Supplier may without notice, enter any premises where it suspects goods may be and remove them, notwithstanding that they may have been attached to other goods not the property of the Supplier, and for this purpose the Customer irrevocably licences the Supplier to enter such premises and also indemnifies the Supplier from and against all costs, claims, demands or actions by any party arising from such action.
6.1 Where there is any change in the costs incurred by the Supplier in relation to the goods, the Supplier may vary its price for goods in order to take account of any such change.
7. Delivery of the Goods
7.1 Any period or date for delivery of goods stated by the Supplier is intended as an estimate only and is not a contractual commitment. The Supplier will use its best reasonable endeavours to meet any estimated dates for delivery of the goods. 7.2 All costs of freight and delivery of the goods at the agreed delivery address shall be borne by the Customer. 7.3 If the customer is unable or fails to accept delivery of the goods, the Customer will be liable for all costs incurred by the Supplier due to storage, detention, double cartage, travel expenses or similar causes.
8. Risk and Insurance
8.1 All risk in the goods and all insurance responsibility for theft, damage or otherwise in respect of the goods will pass to the customer immediately upon delivery of the goods to the Customer.
9. Returns, Cancellations and Credits
9.1 The Customer shall not return purchased goods to the Supplier without the prior written approval of the Supplier. 9.2 All purchased goods approved for return shall be in the original packaging and in an undamaged, re-saleable condition accompanied by a delivery docket stating the original invoice number of the Supplier, the date of purchase and the reason for the return. 9.3 The Supplier reserves the right to refuse to accept returned purchased goods if after inspection the Supplier (at its sole discretion) considers the goods are not acceptable. 9.4 All purchased goods returned may be subject to a minimum 15% restocking fee at the discretion of the Supplier. 9.5 Purchased goods adjusted to Customer’s requirements will not be accepted back for credit. 9.6 Any cancellation of any goods less than forty-eight hours before delivery shall incur a cancellation fee that is to be set at the Supplier’s discretion and is not limited to the full amount of the cost of hire/purchase invoice. 9.7 The Customer must advise the Supplier of a cancellation in writing and, where the order is within forty-eight hours of delivery the customer must make contact via telephone.
10.1 All goods supplied shall be free from defect in materials and workmanship for a period specified by the Supplier, from the date of delivery. 10.2 The warranty does not apply in circumstances where:
(a) the goods are not defective; (b) the goods were used for a purpose other than for which they were intended; (c) the goods were repaired, modified or altered by any person unauthorised by the Supplier. (d) the defect has arisen due to misuse, neglect or accident (e) the defect has arisen due to the incorrect installation or operation of the goods; (f) the defect has arisen due to normal wear and tear of the goods; (g) the goods have not been stored or maintained as recommended by the Supplier; or (h) the Customer is in breach of the Conditions.
11.1 The Supplier will not be liable for any loss or damage suffered by the Customer where the Supplier has failed to meet any delivery date or cancels or suspends the supply of goods.
12. General Matters
12.1 These terms and conditions shall not be amended except in writing signed by the Supplier. 12.2 If any provision of these Terms and Conditions is deemed to be unlawful or unenforceable, such provision shall be severed from these terms and Conditions and all other provisions of these Terms and Conditions shall remain in force. 12.3 The failure of the Supplier to enforce or exercise any right under these Terms and Conditions will not constitute a waiver of any right.
13. Hire Period
(a) Unless otherwise agreed the Customer will return the Hired Goods at the completion or termination of the Hire Agreement. Any costs of return are to be borne by the Customer: (b) If the Hired goods is not returned to the Supplier by the end of the Hire Period then a pro rata daily charge will be made (based on 7 days for a weekly Hire Agreement type and 30 days for a monthly Hire Agreement type) related to the original terms and conditions. The Supplier reserves the right (at its discretion) to deem the rent to be extended until the Hired Goods are returned and also to arrange for the recovery of the Hired Goods at cost to the Customer.
14. Condition of Hired Goods
The Customer acknowledges that: (a) it has examined the Hired Goods before accepting it and satisfied itself that it is in good condition, is suitable for the Customer’s purpose, functions to a high standard, produces accurate readings and complies with prescribed safety standards: (b) the Supplier has given no representation or warranty regarding the quality, fitness, safety, suitability, standard or accuracy of the Hired Goods, and no person is authorised by the Supplier to do so; (c) the Customer will look to the manufacturer, and not the Supplier, for any collateral warranty the Customer may require in relation to the Hired Goods.
15. Care of Goods
15.1 The condition of the Hired Goods is recorded on the Hire Agreement. The Customer will take good care of the Hired Goods. Any damage (other than fair wear and tear) will be repaired by the Supplier or its appointee and will be charged to the Customer. If any of the Hired Goods is lost or stolen during the Hire Period, or extensions thereof, the Supplier reserves the right to charge the Customer the retail price of the lost or
stolen goods. In the event of loss or damage of the Hired Goods the hire charges will continue until the Retail Price of the Hired Goods is paid for in full by the Customer which amount is in addition to the hire charges paid.
16.1 The Customer indemnifies the Supplier against: (a) any loss of or damage to the Hired Goods however arising; (b) liability for any death, injury or damage to any person or property arising directly or indirectly from the Hired Goods or its use; (c) any claim for breach of intellectual property rights arising in connection with the Hired Goods or its use; (d) any loss arising from any part of this Hire Agreement being void, voidable or unenforceable for any reason; (e) any loss or liability incurred by the Supplier resulting from possession, use or operation of the Hired Goods by the Customer; (f) any liability which the Supplier may incur under any legislation by reason of the use of the Hired Goods for any purpose other than as stated by the Customer to the Supplier; provided that such loss, damage, claim or liability is not due to the Supplier’s negligence; (g) anything done by the Supplier in exercise or purported exercise of its rights under this Hire Agreement; (h) any claim affecting the Supplier’s interest in or title to the Hired Goods and any action taken by the Supplier to protect such interest and title; (i) any breach by the Customer of its obligations under this Hire Agreement including any failure to insure or adequately insure the Hired Goods; and (j) the repossession of the Hired Goods and any related storage, repair and/or sale. Each indemnity in this clause is a separate and independent obligation and continues after termination of this Hire Agreement.
17. Limitation of Liability
17.1 To the full extent permitted by law, all express and implied terms, conditions and warranties (other than those terms expressly set out in this Hire Agreement) are excluded. The Supplier is not liable for any damage, injury or loss to any person or property arising from the possession, operation or use of the Hired Goods. Whether or not the Trade Practices Act 1974 or any laws to a similar effect apply, the Supplier’s liability for anything in relation to the Hired Goods and its use, including damage or economic loss, is limited to the maximum extent permitted by law. In any event the Supplier’s liability is limited, at the Supplier’s option to:
(a) the replacement of the relevant Hired Goods with the same or equivalent Hired Goods; (b) the repair of the relevant Hired Goods; or (c) reimbursement of the rent for the relevant Hired Goods for the Hire Period.
18.1 If any Operating System or Application Software is included in the Hire Agreement then the Customer guarantees that the only copies of these made will be for the purpose of security back-up. Further to this the Customer undertakes to destroy any such back-up copies at the completion of the Hire Period or any extension thereof. 18.2 Where the Customer has requested the Supplier to install Software other than the Operating System on the Hired Goods, the Customer declares that they are the holder of a legitimate licence to the Software, and have the right to install the Software. The Customer agrees to indemnify and keep indemnified the Supplier from any loss or damage arising from or in connection with the installation or use of the Software.
(a) to assess an application by Customer; and/or (b) to notify other credit providers of a default by Customer; and/or (c) to exchange information with other credit providers as to the status of this credit account, where the Customer is in default with other credit providers; and/or (d) to assess the credit worthiness of Customer and/or Guarantor/s. 20.3 The Customer consents to the Supplier being given a consumer credit report to collect overdue payment on commercial credit (Section 18K(1)(h) Privacy Act 1988). 20.4 The Customer agrees that personal credit information provided may be used and retained by the Supplier for the following purposes and for other purposes as shall be agreed between the