Samurai AV Pty Ltd Terms of Trade

additional terms of trade: 
Once a booking is made by email or a signed quote 

a 50% cancellation fee will be charged if cancelled within 48hrs of starting time 
and a 100% cancellation fee will be charged if cancelled within 24hrs of the starting time 
this includes cancellations and rescheduling 
Parking fees, additional costs, food costs (if not provided), overtime and any extra equipment required on the day requested by a director/producer (not included in the original booking) will be added on to the final invoice. 

Invoices must be paid within 7 days of issue. Interest will be charged monthly at rate of 10%PA after the due date if payment has not been made, this is additional to any debt recovery costs incurred. 

Definitions

  1. “Samurai AV” means Samurai AV Pty Ltd ATF Samurai AV Productions T/A Samurai AV Pty Ltd its successors and assigns or any person acting on behalf of and with the authority of Samurai AV Pty Ltd ATF Samurai AV  ProductionsT/A Samurai AV Pty Ltd.

  2. “Customer” means the person/s requesting Samurai AV to provide the Services/Equipment as specified in any invoice, document or order, and if there more than one person requesting the Services/Equipment is a reference to each person jointly and severally.

  3. “Incidental Items” means any goods, documents, designs, drawings or materials supplied, consumed, created or deposited incidentally by Samurai AV in the course of it conducting, or supplying to the Customer, any Services.

  4. “Equipment” means all Equipment including any accessories supplied on hire by Samurai AV to the Customer (and where the context so permits shall include any supply of Services). The Equipment shall be as described on the invoices, quotation, authority to hire, or any other work authorisation form provided by Samurai AV to the Customer.

  5. “Services” means all Services supplied by Samurai AV to the Customer at the Customer’s request from time to time.

  6. “Price” means the price payable for the Services and/or Equipment hire as agreed between Samurai AV and the Customer in accordance with clause 4 of this contract.

 

Acceptance

  1. The Customer is taken to have exclusively accepted and is immediately bound, jointly and severally, by these terms and conditions if the Customer places an order for, or accepts Services/Equipment provided by Samurai AV.

  2. These terms and conditions may only be amended with Samurai AV’s consent in writing and shall prevail to the extent of any inconsistency with any other document or agreement between the Customer and Samurai AV.

  3. Where the Customer requesting or organising Samurai AV to provide Services is acting on behalf of any third party and that third party is intended to be responsible for the payment of the Price then in the event that the third party does not pay for the Services when due, the Customer acknowledges that they shall be liable for the payment of the Price as if they had contracted the Services on their own behalf.

 

Change in Control

The Customer shall give Samurai AV not less than fourteen (14) days prior written notice of any proposed change of ownership of the Customer and/or any other change in the Customer’s details (including but not limited to, changes in the Customer’s name, address, contact phone or fax number/s, or business practice). The Customer shall be liable for any loss incurred by Samurai AV as a result of the Customer’s failure to comply with this clause.

 

Price and Payment

  1. At Samurai AV’s sole discretion the Price shall be either:

    1. as indicated on any invoice provided by Samurai AV to the Customer; or

    2. the Price as at the date of delivery of the Services/Equipment according to Samurai AV’s current price list; or

    3. Samurai AV’s quoted price (subject to clause 4.2) which will be valid for the period stated in the quotation or otherwise for a period of thirty (30) days.

  2. Samurai AV reserves the right to change the Price:

    1. if a variation to the Equipment which are to supplied is requested; or

    2. if a variation to the Services originally scheduled (including any applicable plans or specifications) is requested; or

    3. where additional Services are required due to the discovery of hidden or unidentifiable difficulties (including, but not limited to, poor weather conditions, limitations to accessing the site, availability of machinery, safety considerations, change of design, etc) which are only discovered on commencement of the Services; or

    4. in the event of increases to Samurai AV in the cost of labour or materials which are beyond Samurai AV’s control.

  3. At Samurai AV’s sole discretion a non-refundable deposit may be required.

  4. Time for payment for the Services/Equipment being of the essence, the Price will be payable by the Customer on the date/s determined by Samurai AV, which may be:

    1. on delivery of the Services/Equipment;

    2. the date specified on any invoice or other form as being the date for payment; or

    3. failing any notice to the contrary, the date which is seven (7) days following the date of any invoice given to the Customer by Samurai AV.

  5. Payment may be made by cash, cheque, bank cheque, electronic/on-line banking, credit card, or by any other method as agreed to between the Customer and Samurai AV.

  6. Unless otherwise stated the Price does not include GST. In addition to the Price the Customer must pay to Samurai AV an amount equal to any GST Samurai AV must pay for any supply by Samurai AV under this or any other agreement for providing Samurai AV’s Services/Equipment. The Customer must pay GST, without deduction or set off of any other amounts, at the same time and on the same basis as the Customer pays the Price. In addition the Customer must pay any other taxes and duties that may be applicable in addition to the Price except where they are expressly included in the Price.

 

Delivery of Services/Equipment

  1. At Samurai AV’s sole discretion delivery of the Services/Equipment shall take place when:

    1. the Services/Equipment are supplied to the Customer at Samurai AV’s address; or

    2. the Services/Equipment are supplied to the Customer at the Customer’s nominated address.

  2. Delivery of the Services to a third party nominated by the Customer is deemed to be delivery to the Customer for the purposes of this agreement.

  3. At Samurai AV’s sole discretion the cost of delivery is either included in the Price or is in addition to the Price.

  4. Any time specified by Samurai AV for delivery of the Services/Equipment is an estimate only and Samurai AV will not be liable for any loss or damage incurred by the Customer as a result of delivery being late. However both parties agree that they shall make every endeavour to enable the Services/Equipment to be supplied at the time and place as was arranged between both parties. In the event that Samurai AV is unable to supply the Services/Equipment as agreed solely due to any action or inaction of the Customer then Samurai AV shall be entitled to charge a reasonable fee for re-supplying the Services/Equipment at a later time and date.

 

Risk

  1. Irrespective of whether Samurai AV retains ownership of any Incidental Items all risk for such items shall pass to the Customer as soon as such items are delivered to the Customer and shall remain with the Customer until such time as Samurai AV may repossess the Incidental Items in accordance with clause 8.3(f). The Customer must insure all Incidental Items on or before delivery.

  2. Samurai AV reserves its right to seek compensation or damages for any damage, destruction or loss suffered in relation to the Incidental Items as a result of the Customer’s failure to insure in accordance with clause 6.1.

 

Customer Content

  1. The Customer warrants that all materials and content supplied to Samurai AV to be used for the provision of the Services shall:

    1. be true and correct in every particular; and

    2. shall comply with clause 12.3; and

    3. not be, nor contain, anything that is defamatory of any person or is indecent or obscene; and

    4. not breach any advertising industry standards or guidelines; and

    5. not contain nor constitute a statement that is misleading or deceptive or likely to deceive or to mislead or which is otherwise in breach of a provision of any Commonwealth legislation of the State or States in which the Services are provided.

  2. The Customer shall indemnify and keep indemnified Samurai AV at all times against all actions, proceedings, claims, demands, liabilities, either express or implied, and all costs, losses, losses of profit, damages and expenses whatsoever which may be taken against the Company or incurred or become payable by Samurai AV resulting or arising from the Customer being in breach of clause 7.1

  3. Samurai AV reserves the right to refuse to accept any material or content submitted by the Customer that does not comply with clause 7.1.

 

Title to Incidental Items

Samurai AV and the Customer agree that where it is intended that the ownership of Incidental Items is to pass to the Customer that such ownership shall not pass until:

  1. the Customer has paid Samurai AV all amounts owing for the Services/Equipment; and

  2. the Customer has met all other obligations due by the Customer to Samurai AV in respect of all contracts between Samurai AV and the Customer.

    1. Receipt by Samurai AV of any form of payment other than cash shall not be deemed to be payment until that form of payment has been honoured, cleared or recognised and until then Samurai AV’s ownership or rights in respect of the Incidental Items shall continue.

    2. It is further agreed that:

      1. the Customer is only a bailee of the Incidental Items and must return the Incidental Items to Samurai AV immediately upon request by Samurai AV;

      2. the Customer holds the benefit of the Customer’s insurance of the Incidental Items on trust for Samurai AV and must pay to Samurai AV the proceeds of any insurance in the event of the Incidental Items being lost, damaged or destroyed;

      3. the Customer must not sell, dispose, or otherwise part with possession of the Incidental Items. If the Customer sells, disposes or parts with possession of the Incidental Items then the Customer must hold the proceeds of sale of the Incidental Items on trust for Samurai AV and must pay or deliver the proceeds to Samurai AV on demand.

      4. the Customer should not convert or process the Incidental Items or intermix them with other goods, but if the Customer does so then the Customer holds the resulting product on trust for the benefit of Samurai AV and must dispose of or return the resulting product to Samurai AV as Samurai AV so directs. 

      5. the Customer shall not charge or grant an encumbrance over the Incidental Items nor grant nor otherwise give away any interest in the Incidental Items while they remain the property of Samurai AV;

      6. the Customer irrevocably authorises Samurai AV to enter any premises where Samurai AV believes the Incidental Items are kept and recover possession of the Incidental Items.

Personal Property Securities Act 2009 (“PPSA”)

  1. In this clause financing statement, financing change statement, security agreement, and security interest has the meaning given to it by the PPSA.

  2. Upon assenting to these terms and conditions in writing the Customer acknowledges and agrees that these terms and conditions constitute a security agreement for the purposes of the PPSA and creates a security interest in all Incidental Items/Equipment that has previously been supplied and that will be supplied in the future by Samurai AV to the Customer.

  3. The Customer undertakes to:

    1. promptly sign any further documents and/or provide any further information (such information to be complete, accurate and up-to-date in all respects) which Samurai AV may reasonably require to;

      1. register a financing statement or financing change statement in relation to a security interest on the Personal Property Securities Register;

      2. register any other document required to be registered by the PPSA; or

      3. correct a defect in a statement referred to in clause 9.3(a)(i) or 9.3(a)(ii);

    2. indemnify, and upon demand reimburse, Samurai AV for all expenses incurred in registering a financing statement or financing change statement on the Personal Property Securities Register established by the PPSA or releasing any Incidental Items/Equipment charged thereby;

    3. not register a financing change statement in respect of a security interest without the prior written consent of Samurai AV;

    4. not register, or permit to be registered, a financing statement or a financing change statement in relation to the Incidental Items/Equipment in favour of a third party without the prior written consent of Samurai AV;

    5. immediately advise Samurai AV of any material change in its business practices of selling Incidental Items which would result in a change in the nature of proceeds derived from such sales.

  4. Samurai AV and the Customer agree that sections 96, 115 and 125 of the PPSA do not apply to the security agreement created by these terms and conditions.

  5. The Customer waives their rights to receive notices under sections 95, 118, 121(4), 130, 132(3)(d) and 132(4) of the PPSA.

  6. The Customer waives their rights as a grantor and/or a debtor under sections 142 and 143 of the PPSA.

  7. Unless otherwise agreed to in writing by Samurai AV, the Customer waives their right to receive a verification statement in accordance with section 157 of the PPSA.

  8. The Customer must unconditionally ratify any actions taken by Samurai AV under clauses 9.3 to 9.5.

  9. Subject to any express provisions to the contrary nothing in these terms and conditions is intended to have the effect of contracting out of any of the provisions of the PPSA.

 

Security and Charge

  1. In consideration of Samurai AV agreeing to supply Services/Equipment, the Customer charges all of its rights, title and interest (whether joint or several) in any land, realty or other assets capable of being charged, owned by the Customer either now or in the future, to secure the performance by the Customer of its obligations under these terms and conditions (including, but not limited to, the payment of any money).

  2. The Customer indemnifies Samurai AV from and against all Samurai AV’s costs and disbursements including legal costs on a solicitor and own Customer basis incurred in exercising Samurai AV’s rights under this clause.

  3. The Customer irrevocably appoints Samurai AV and each director of Samurai AV as the Customer’s true and lawful attorney/s to perform all necessary acts to give effect to the provisions of this clause 10 including, but not limited to, signing any document on the Customer’s behalf.

 

Defects, Warranties and the Competition and Consumer Act 2010 (CCA)

  1. The Customer must inspect Samurai AV’s Services on completion, and the Equipment on delivery and must within seven (7) days notify Samurai AV in writing of any evident defect in the Services/Equipment (including Samurai AV’s workmanship), or any Incidental Items provided, or of any other failure by Samurai AV to comply with the description of, or quote for, the Services/Equipment which Samurai AV was to supply. The Customer must notify any other alleged defect in Samurai AV’s Services, Equipment or Incidental Items as soon as is reasonably possible after any such defect becomes evident. Upon such notification the Customer must allow Samurai AV to review the Services, Equipment or Incidental Items that were provided.

  2. Under applicable State, Territory and Commonwealth Law (including, without limitation the CCA), certain statutory implied guarantees and warranties (including, without limitation the statutory guarantees under the CCA) may be implied into these terms and conditions (Non-Excluded Guarantees).

  3. Samurai AV acknowledges that nothing in these terms and conditions purports to modify or exclude the Non-Excluded Guarantees.

  4. Except as expressly set out in these terms and conditions or in respect of the Non-Excluded Guarantees, Samurai AV makes no warranties or other representations under these terms and conditions including, but not limited to, the quality or suitability of the Services/Equipment. Samurai AV’s liability in respect of these warranties is limited to the fullest extent permitted by law.

  5. If the Customer is a consumer within the meaning of the CCA, Samurai AV’s liability is limited to the extent permitted by section 64A of Schedule 2.

  6. If Samurai AV is required to rectify, re-supply, or pay the cost of re-supplying the Services/Equipment under this clause or the CCA, but is unable to do so, then Samurai AV may refund any money the Customer has paid for the Services/Equipment but only to the extent that such refund shall take into account the value of Services/Equipment and Incidental Items which have been provided to the Customer which were not defective.

  7. If the Customer is not a consumer within the meaning of the CCA, Samurai AV’s liability for any defective Services/Equipment or Incidental Items is:

    1. limited to the value of any express warranty or warranty card provided to the Customer by Samurai AV at Samurai AV’s sole discretion;

    2. otherwise negated absolutely.

  8. Notwithstanding clauses 11.1 to 11.7 but subject to the CCA, Samurai AV shall not be liable for any defect or damage which may be caused or partly caused by or arise as a result of:

    1. the Customer failing to properly maintain or store any Incidental Items;

    2. the Customer using the Incidental Items for any purpose other than that for which they were designed;

    3. the Customer continuing to use any Incidental Item after any defect became apparent or should have become apparent to a reasonably prudent operator or user;

    4. interference with the Services/Equipment by the Customer or any third party without Samurai AV’s prior approval;

    5. the Customer failing to follow any instructions or guidelines provided by Samurai AV;

    6. fair wear and tear, any accident, or act of God.

 

Intellectual Property

  1. Copyright in all Incidental Items (including without limitation all designs, images, illustrations, articles, specifications, documents, audio or visual recordings) and other materials provided to the Customer by Samurai AV shall remain vested in Samurai AV and shall only be used by the Customer at Samurai AV’s discretion.

  2. Where Samurai AV has provided the Customer with concept designs, the copyright in those concept designs shall remain vested with Samurai AV. The Customer warrants that any concept designs provided by Samurai AV shall not be disclosed by the Customer to any other party without the express written consent of Samurai AV.

  3. Where the Customer provides Samurai AV with any materials including sketches, photographs, images, drawings, plans, or concepts upon which the Company is to base the Incidental Items, the Customer shall indemnify and keep indemnified the Company at all times against all actions, proceedings, claims, demands, liabilities, either express or implied, and all costs, losses, losses of profit, damages and expenses whatsoever which may be taken against Samurai AV or incurred or become payable by Samurai AV resulting or arising from any claim or infringement of any law, patent, registered design, trademark, copyright or any other property interest of a third party which may result out of the use by Samurai AV of the materials.

 

Default and Consequences of Default

  1. Interest on overdue invoices shall accrue daily from the date when payment becomes due, until the date of payment, at a rate of two and a half percent (2.5%) per calendar month (and at Samurai AV’s sole discretion such interest shall compound monthly at such a rate) after as well as before any judgment.

  2. If the Customer owes Samurai AV any money the Customer shall indemnify Samurai AV from and against all costs and disbursements incurred by Samurai AV in recovering the debt (including but not limited to internal administration fees, legal costs on a solicitor and own Customer basis, Samurai AV’s contract default fees, and bank dishonour fees).

  3. Without prejudice to any other remedies Samurai AV may have, if at any time the Customer is in breach of any obligation (including those relating to payment) under these terms and conditions Samurai AV may suspend or terminate the supply of Services/Equipment to the Customer. Samurai AV will not be liable to the Customer for any loss or damage the Customer suffers because Samurai AV has exercised its rights under this clause.

  4. Without prejudice to Samurai AV’s other remedies at law Samurai AV shall be entitled to cancel all or any part of any order of the Customer which remains unfulfilled and all amounts owing to Samurai AV shall, whether or not due for payment, become immediately payable if:

    1. any money payable to Samurai AV becomes overdue, or in Samurai AV’s opinion the Customer will be unable to make a payment when it falls due;

    2. the Customer becomes insolvent, convenes a meeting with its creditors or proposes or enters into an arrangement with creditors, or makes an assignment for the benefit of its creditors; or

    3. a receiver, manager, liquidator (provisional or otherwise) or similar person is appointed in respect of the Customer or any asset of the Customer.

 

Cancellation

  1. Samurai AV may cancel any contract to which these terms and conditions apply or cancel delivery of Services/Equipment at any time before the Services are commenced or Equipment provided by giving written notice to the Customer. On giving such notice Samurai AV shall repay to the Customer any money paid by the Customer for the provision of the Services/Equipment. Samurai AV shall not be liable for any loss or damage whatsoever arising from such cancellation.

  2. In the event that the Customer cancels delivery of the Services/Equipment the Customer shall be liable for any and all loss incurred (whether direct or indirect) by Samurai AV as a direct result of the cancellation (including, but not limited to, any loss of profits).

Privacy Act 1988

  1. The Customer agrees for Samurai AV to obtain from a credit reporting agency a credit report containing personal credit information about the Customer in relation to credit provided by Samurai AV.

  2. The Customer agrees that Samurai AV may exchange information about the Customer with those credit providers either named as trade referees by the Customer or named in a consumer credit report issued by a credit reporting agency for the following purposes:

    1. to assess an application by the Customer; and/or

    2. to notify other credit providers of a default by the Customer; and/or

    3. 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

    4. to assess the creditworthiness of the Customer.

 

The Customer understands that the information exchanged can include anything about the Customer’s creditworthiness, credit standing, credit history or credit capacity that credit providers are allowed to exchange under the Privacy Act 1988.

  1. The Customer consents to Samurai AV being given a consumer credit report to collect overdue payment on commercial credit (Section 18K(1)(h) Privacy Act 1988).

  2. The Customer agrees that personal credit information provided may be used and retained by Samurai AV for the following purposes (and for other purposes as shall be agreed between the Customer and Samurai AV or required by law from time to time):

    1. the provision of Services/Equipment; and/or

    2. the marketing of Services/Equipment by Samurai AV, its agents or distributors; and/or

    3. analysing, verifying and/or checking the Customer’s credit, payment and/or status in relation to the provision of Services/Equipment; and/or

    4. processing of any payment instructions, direct debit facilities and/or credit facilities requested by the Customer; and/or

    5. enabling the daily operation of Customer’s account and/or the collection of amounts outstanding in the Customer’s account in relation to the Services/Equipment.

  3. Samurai AV may give information about the Customer to a credit reporting agency for the following purposes:

    1. to obtain a consumer credit report about the Customer;

    2. allow the credit reporting agency to create or maintain a credit information file containing information about the Customer.

  4. The information given to the credit reporting agency may include:

    1. personal particulars (the Customer’s name, sex, address, previous  addresses, date of birth, name of employer and driver’s licence number);

    2. details concerning the Customer’s application for credit or commercial credit and the amount requested;

    3. advice that Samurai AV is a current credit provider to the Customer;

    4. advice of any overdue accounts, loan repayments, and/or any outstanding monies owing which are overdue by more than sixty (60) days, and for which debt collection action has been started;

    5. that the Customer’s overdue accounts, loan repayments and/or any outstanding monies are no longer overdue in respect of any default that has been listed;

    6. information that, in the opinion of Samurai AV, the Customer has committed a serious credit infringement (that is, fraudulently or shown an intention not to comply with the Customer’s credit obligations);

    7. advice that cheques drawn by the Customer for one hundred dollars ($100) or more, have been dishonoured more than once;

    8. that credit provided to the Customer by Samurai AV has been paid or otherwise discharged.

 

Unpaid Seller’s Rights

  1. Where the Customer has left any item with Samurai AV for repair, modification, exchange or for Samurai AV to perform any other service in relation to the item and Samurai AV has not received or been tendered the whole of any monies owing to it by the Customer, Samurai AV shall have, until all monies owing to Samurai AV are paid:

    1. a lien on the item; and

    2. the right to retain or sell the item, such sale to be undertaken in accordance with any legislation applicable to the sale or disposal of uncollected goods.

  2. The lien of Samurai AV shall continue despite the commencement of proceedings, or judgment for any monies owing to Samurai AV having been obtained against the Customer.

 

Equipment Hire

  1. Equipment shall at all times remain the property of Samurai AV and is returnable on demand by Samurai AV. In the event that Equipment is not returned to Samurai AV in the condition in which it was delivered Samurai AV retains the right to charge the Customer the full cost of repairing the Equipment. In the event that Equipment is not returned at all Samurai AV shall have right to charge the Customer the full cost of replacing the Equipment.

  2. The Customer shall:

    1. keep the Equipment in their own possession and control and shall not assign the benefit of the Equipment nor be entitled to a lien over the Equipment.

    2. not alter or make any additions to the Equipment including but without limitation altering, make any additions to, defacing or erasing any identifying mark, plate or number on or in the Equipment or in any other manner interfere with the Equipment.

    3. keep the Equipment, complete with all parts and accessories, clean and in good order as delivered, and shall comply with any maintenance schedule as advised by Samurai AV to the Customer.

  3. The Customer accepts full responsibility for the safekeeping of the Equipment and the Customer agrees to insure, or self-insure, Samurai AV’s interest in the Equipment and agrees to indemnify Samurai AV against physical loss or damage including, but not limited to, the perils of accident, fire, theft and burglary and all other usual risks and will effect adequate Public Liability Insurance covering any loss, damage or injury to property or persons arising out of the use of the Equipment. Further the Customer will not use the Equipment nor permit it to be used in such a manner as would permit an insurer to decline any claim.

 

General

  1. The failure by Samurai AV to enforce any provision of these terms and conditions shall not be treated as a waiver of that provision, nor shall it affect Samurai AV’s right to subsequently enforce that provision. If any provision of these terms and conditions shall be invalid, void, illegal or unenforceable the validity, existence, legality and enforceability of the remaining provisions shall not be affected, prejudiced or impaired.

  2. These terms and conditions and any contract to which they apply shall be governed by the laws of Victoria in which Samurai AV has its principal place of business, and are subject to the jurisdiction of the courts in Victoria. 

  3. Subject to clause 11, Samurai AV shall be under no liability whatsoever to the Customer for any indirect and/or consequential loss and/or expense (including loss of profit) suffered by the Customer arising out of a breach by Samurai AV of these terms and conditions (alternatively Samurai AV’s liability shall be limited to damages which under no circumstances shall exceed the Price paid for the Services/Equipment).

  4. The Customer shall not be entitled to set off against, or deduct from the Price, any sums owed or claimed to be owed to the Customer by Samurai AV nor to withhold payment of any invoice because part of that invoice is in dispute.

  5. Samurai AV may license or sub-contract all or any part of its rights and obligations without the Customer’s consent.

  6. The Customer agrees that Samurai AV may amend these terms and conditions at any time. If Samurai AV makes a change to these terms and conditions, then that change will take effect from the date on which Samurai AV notifies the Customer of such change. The Customer will be taken to have accepted such changes if the Customer makes a further request for Samurai AV to provide Services/Equipment to the Customer.

  7. Neither party shall be liable for any default due to any act of God, war, terrorism, strike, lock-out, industrial action, fire, flood, storm or other event beyond the reasonable control of either party.

  8. The Customer warrants that it has the power to enter into this agreement and has obtained all necessary authorisations to allow it to do so, it is not insolvent and that this agreement creates binding and valid legal obligations on it.

© 2019 Samurai AV Pty Ltd

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