Terms and Conditions

1. Definitions
   • “Acknowledgment Document” means the document signed by the Client in conjunction with these Terms and Conditions of Trade and applicable if 3 Monkeys AV elects, whereby the Client acknowledges the extent and effect of the provision of security the Client provides to 3 Monkeys AV in consideration of the provision of Goods/Equipment.
   • “Client” means the person/s, entities or any person acting on behalf of and with the authority of the Client requesting 3 Monkeys AV to provide the Services as specified in any proposal, quotation, order, invoice or other documentation, and:
     • if there is more than one Client, is a reference to each Client jointly and severally; and
     • if the Client is a partnership, it shall bind each partner jointly and severally; and
     • if the Client is a part of a Trust, shall be bound in their capacity as a trustee; and
     • includes the Client’s executors, administrators, successors and permitted assigns.
   • “Confidential Information” means information of a confidential nature whether oral, written or in electronic form including, but not limited to, this Contract, either party’s intellectual property, operational information, know-how, trade secrets, financial and commercial affairs, Contracts, client information (including but not limited to, “Personal Information” such as: name, address, D.O.B, occupation, driver’s license details, electronic contact (email, Facebook or Twitter details), medical insurance details or next of kin and other contact information (where applicable), previous credit applications, credit history) and pricing details.
   • “Contract” means the terms and conditions contained herein, together with any quotation, order, invoice or other document or amendments expressed to be supplemental to this Contract.
   • “Cookies” means small files which are stored on a user’s computer. They are designed to hold a modest amount of data (including Personal Information) specific to a particular client and website and can be accessed either by the web server or the client’s computer. If the Client does not wish to allow Cookies to operate in the background when using 3 Monkeys AV’s website, then the Client shall have the right to enable / disable the Cookies first by selecting the option to enable / disable provided on the website, prior to making enquiries via the website.
   • “Equipment” means all Equipment including any accessories supplied on hire by 3 Monkeys AV to the Client (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 3 Monkeys AV to the Client.
   • “Goods” means all Goods or Services supplied by 3 Monkeys AV to the Client at the Client’s request from time to time (where the context so permits the terms ‘Goods’ or ‘Services’ shall be interchangeable for the other).
   • “GST” means Goods and Services Tax as defined within the “A New Tax System (Goods and Services Tax) Act 1999” (Cth).
   • “Minimum Hire Period” means the Minimum Hire Period as described on the invoices, quotation, authority to hire, or any other forms as provided by 3 Monkeys AV to the Client.
   • “Price” means the Price payable (plus any GST where applicable) for the Goods and/or Equipment hire as agreed between 3 Monkeys AV and the Client in accordance with clause 6
   • “3 Monkeys AV” means 3 Monkeys Audiovisual Pty Ltd T/A 3 Monkeys Audiovisual, its successors and assigns or any person acting on behalf of and with the authority of 3 Monkeys Audiovisual Pty Ltd T/A 3 Monkeys Audiovisual.

2. Acceptance
   • The parties acknowledge and agree that:
     • they have read and understood the terms and conditions contained in this Contract; and
     • the parties are taken to have exclusively accepted and are immediately bound, jointly and severally, by these terms and conditions if the Client places an order for or accepts delivery of the Goods/Equipment.
   • In the event of any inconsistency between the terms and conditions of this Contract and any other prior document or schedule that the parties have entered into, the terms of this Contract shall prevail.
   • Any amendment to the terms and conditions contained in this Contract may only be amended in writing by the consent of both parties.
   • The Client acknowledges and accepts that:
     • that the supply of Goods/Equipment on credit shall not take effect until the Client has completed a credit application with 3 Monkeys AV and it has been approved with a credit limit established for the account. In the event that the supply of Goods/Equipment requested exceeds the Client’s credit limit and/or the account exceeds the payment terms, 3 Monkeys AV reserves the right to refuse delivery;
     • if, upon arrival at the site, and 3 Monkeys AV’s technicians are required to complete any site-specific induction, health and safety briefing, or onboarding procedure that was not disclosed prior to the acceptance of 3 Monkeys AV’s quote and was not included in the quoted Price, 3 Monkeys AV reserves the right to charge for all time spent undertaking such induction. This time will be billed at 3 Monkeys AV’s standard hourly rate and added to the final invoice; and
     • in the event the Client requests 3 Monkeys AV to make a call-out to carry out any Services, then 3 Monkeys AV reserves the right to charge a minimum call-out fee based on 3 Monkeys AV’s hourly labour rate, (penalty rates may apply for weekends and/or public holidays, unless otherwise agreed between 3 Monkeys AV and the Client), plus travel and parts.
   • Electronic signatures shall be deemed to be accepted by either party providing that the parties have complied with Section 10 of the Electronic Transactions Act 2011 or any other applicable provisions of that Act or any Regulations referred to in that Act.

3. Authorised Representatives
   • Unless otherwise limited as per clause 2 the Client agrees that should the Client introduce any third party to 3 Monkeys AV as the Client’s duly authorised representative, that once introduced that person shall have the full authority of the Client to order any Goods or Services on the Client’s behalf and/or to request any variation to the Services or Goods on the Client’s behalf (such authority to continue until all requested Services have been completed or the Client otherwise notifies 3 Monkeys AV in writing that said person is no longer the Client’s duly authorised representative).
   • In the event that the Client’s duly authorised representative as per clause 1 is to have only limited authority to act on the Client’s behalf then the Client must specifically and clearly advise 3 Monkeys AV in writing of the parameters of the limited authority granted to their representative.
   • The Client specifically acknowledges and accepts that they will be solely liable to 3 Monkeys AV for all additional costs incurred by 3 Monkeys AV (including 3 Monkeys AV’s profit margin) in providing any Goods, Services or variation/s requested by the Client’s duly authorised representative (subject always to the limitations imposed under clause 2 (if any)).

4. Errors and Omissions
   • The Client acknowledges and accepts that 3 Monkeys AV shall, without prejudice, accept no liability in respect of any alleged or actual error(s) and/or omission(s):
     • resulting from an inadvertent mistake made by 3 Monkeys AV in the formation and/or administration of this Contract; and/or
     • contained in/omitted from any literature (hard copy and/or electronic) supplied by 3 Monkeys AV in respect of the Services.
   • In circumstances where the Client is required to place an order for Goods, in writing, or otherwise as permitted by these terms and conditions, the Client is responsible for supplying correct order information such as, without limitation, measurements and quantity, when placing an order for Goods (whether they are made to order Goods or not) (“Client Error“). The Client must pay for all Goods it orders from 3 Monkeys AV notwithstanding that such Goods suffer from a Client Error and notwithstanding that the Client has not taken or refuses to take Delivery of such Goods. 3 Monkeys AV is entitled to, at its absolute discretion to waive its right under this sub-clause in relation to Client Errors.

5. Change in Control
   • The Client shall give 3 Monkeys AV not less than fourteen (14) days prior written notice of any proposed change of ownership of the Client and/or any other change in the Client’s details (including but not limited to, changes in the Client’s name, address, contact phone or fax number/s, change of trustees, or business practice). The Client shall be liable for any loss incurred by 3 Monkeys AV as a result of the Client’s failure to comply with this clause.

6. Price and Payment
   • At 3 Monkeys AV’s sole discretion, the Price shall be either:
     • as indicated on any invoice provided by 3 Monkeys AV to the Client upon placement of an order for Goods/Equipment; or
     • 3 Monkeys AV’s quoted Price (subject to clause 2) which will be valid for the period stated in the quotation or otherwise for a period of twenty-one (21) days.
   • 3 Monkeys AV reserves the right to change the Price:
     • if a variation to the Goods, Equipment or Services which are to be supplied is requested and prior to commencement of additional Services; or
     • in the event of increases to 3 Monkeys AV in the cost of labour or materials, fluctuations in currency exchange rates, out of pocket expenses (including, but not limited to, freight, additional site visits, or labour costs which shall be determined on actual hours spent) which are beyond 3 Monkeys AV’s control.
   • Variations will be charged for on the basis of 3 Monkeys AV’s quotation, and will be detailed in writing, and shown as variations on 3 Monkeys AV’s invoice. The Client shall be required to respond to any variation submitted by 3 Monkeys AV within ten (10) working days. Failure to do so will entitle 3 Monkeys AV to add the cost of the variation to the Price. Payment for all variations must be made in full at the time of their completion.
   • At 3 Monkeys AV’s sole discretion, a reasonable non-refundable deposit may be required upon placement of an order for Goods/Equipment, in accordance with any quotation provided by 3 Monkeys AV or as notified to the Client prior to the placement of an order for Goods/Equipment.
   • Time for payment for the Goods/Equipment being of the essence, the Price will be payable by the Client on the date/s determined by 3 Monkeys AV, which may be:
     • on delivery of the Goods/Equipment; or
     • on completion of the Services; or
     • by way of instalments/progress payments in accordance with 3 Monkeys AV’s payment schedule; or
     • for approved credit account holders, thirty (30) days following the date of invoice; or
     • the date specified on any invoice or other form as being the date for payment; or
     • failing any notice to the contrary, the date which is seven (7) days following the date of any invoice given to the Client by 3 Monkeys AV.
   • Payment may be made by cash, electronic/on-line banking, credit card (a surcharge may apply per transaction), or by any other method as agreed to between the Client and 3 Monkeys AV.
   • 3 Monkeys AV may in its discretion allocate any payment received from the Client towards any invoice that 3 Monkeys AV determines and may do so at the time of receipt or at any time afterwards. On any default by the Client 3 Monkeys AV may re-allocate any payments previously received and allocated. In the absence of any payment allocation by 3 Monkeys AV, payment will be deemed to be allocated in such manner as preserves the maximum value of 3 Monkeys AV’s Purchase Money Security Interest (as defined in the PPSA) in the Goods/Equipment.
   • The Client shall not be entitled to set off against, or deduct from the Price, any sums owed or claimed to be owed to the Client by 3 Monkeys AV nor to withhold payment of any invoice because part of that invoice is in dispute. Once in receipt of an invoice for payment, if any part of the invoice is in dispute, then the Client must notify 3 Monkeys AV in writing within three (3) business days, the invoice shall remain due and payable for the full amount, until such time as 3 Monkeys AV investigates the disputed claim, no credit shall be passed for refund until the review is completed. Failure to make payment may result in 3 Monkeys AV placing the Client’s account into default and subject to default interest in accordance with clause 1.
   • Unless otherwise stated the Price does not include GST. In addition to the Price, the Client must pay to 3 Monkeys AV an amount equal to any GST 3 Monkeys AV must pay for any supply by 3 Monkeys AV under this or any other agreement for the sale of the Goods/hire of the Equipment. The Client must pay GST, without deduction or set off of any other amounts, at the same time and on the same basis as the Client pays the Price. In addition, the Client 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.

7. Delivery of Goods/Equipment
   • Delivery (“Delivery”) of the Goods/Equipment is taken to occur at the time that:
     • the Client or the Client’s nominated carrier takes possession of the Goods/Equipment at 3 Monkeys AV’s address; or
     • 3 Monkeys AV (or 3 Monkeys AV’s nominated carrier) delivers the Goods/Equipment to the Client’s nominated address even if the Client is not present at the address.
   • The cost of Delivery will be payable by the Client in accordance with the quotation provided by 3 Monkeys AV to the Client, or as otherwise notified to the Client prior to the placement of an order for Goods/Equipment.
   • 3 Monkeys AV may deliver the Goods/Equipment in separate instalments. Each separate instalment shall be invoiced and paid in accordance with the provisions in these terms and conditions.
   • Any time specified by 3 Monkeys AV for Delivery of the Goods/Equipment is an estimate only and 3 Monkeys AV will not be liable for any loss or damage incurred by the Client as a result of Delivery being late. However, both parties agree that they shall make every endeavour to enable the Goods/Equipment to be delivered at the time and place as was arranged between both parties. In the event that 3 Monkeys AV is unable to supply the Goods/Equipment as agreed solely due to any action or inaction of the Client, then 3 Monkeys AV shall be entitled to charge a reasonable fee for redelivery and/or storage.

8. Risk to Goods
   • Risk of damage to or loss of the Goods passes to the Client on Delivery, and the Client must insure the Goods on or before Delivery.
   • If any of the Goods are damaged or destroyed following Delivery but prior to ownership passing to the Client, 3 Monkeys AV is entitled to receive all insurance proceeds payable for the Goods. The production of these terms and conditions by 3 Monkeys AV is sufficient evidence of 3 Monkeys AV’s rights to receive the insurance proceeds without the need for any person dealing with 3 Monkeys AV to make further enquiries.
   • If the Client requests 3 Monkeys AV to leave Goods outside 3 Monkeys AV’s premises for collection or to deliver the Goods to an unattended location, then such Goods shall be left at the Client’s sole risk.
   • The Client warrants that any structures to which the Goods is to be installed or placed are able to withstand the installation of the Goods and that any electrical connections (including, but not limited to, meter boxes, main switches, circuit breakers, and electrical cable) are of suitable capacity to handle the Goods once installed. If, for any reason (including the discovery of defective or unsafe wiring), 3 Monkeys AV reasonably forms the opinion that the Client’s site is not safe for the installation of Goods to proceed then 3 Monkeys AV shall be entitled to delay installation of the Goods until 3 Monkeys AV is satisfied that it is safe for the installation to proceed.
   • It is the Client’s responsibility to provide 3 Monkeys AV, while at the site, with adequate access to utility services and cables and inputs are marked and easily visible. 3 Monkeys AV shall not be responsible for any unforeseen loss and damage.

9. Compliance with Laws
   • The Client and 3 Monkeys AV shall comply with the provisions of all statutes, regulations and bylaws of government, local and other public authorities that may be applicable to the

10. Title to Goods
    • 3 Monkeys AV and the Client agree that ownership of the Goods shall not pass until:
      • the Client has paid 3 Monkeys AV all amounts owing to 3 Monkeys AV; and
      • the Client has met all of its other obligations to 3 Monkeys AV.
    • Receipt by 3 Monkeys 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.
    • It is further agreed that until ownership of the Goods passes to the Client in accordance with clause 1:
      • the Client is only a bailee of the Goods and must return the Goods to 3 Monkeys AV on request;
      • the Client holds the benefit of the Client’s insurance of the Goods on trust for 3 Monkeys AV and must pay to 3 Monkeys AV the proceeds of any insurance in the event of the Goods being lost, damaged or destroyed;
      • the Client must not sell, dispose, or otherwise part with possession of the Goods other than in the ordinary course of business and for market value. If the Client sells, disposes or parts with possession of the Goods then the Client must hold the proceeds of any such act on trust for 3 Monkeys AV and must pay or deliver the proceeds to 3 Monkeys AV on demand;
      • the Client should not convert or process the Goods or intermix them with other goods but if the Client does so then the Client holds the resulting product on trust for the benefit of 3 Monkeys AV and must sell, dispose of or return the resulting product to 3 Monkeys AV as it so directs;
      • the Client irrevocably authorises 3 Monkeys AV to enter any premises where 3 Monkeys AV believes the Goods are kept and recover possession of the Goods;
      • 3 Monkeys AV may recover possession of any Goods in transit whether or not Delivery has occurred;
      • the Client shall not charge or grant an encumbrance over the Goods nor grant nor otherwise give away any interest in the Goods while they remain the property of 3 Monkeys AV; and
      • 3 Monkeys AV may commence proceedings to recover the Price of the Goods sold notwithstanding that ownership of the Goods has not passed to the Client.

11. Personal Property Securities Act 2009 (“PPSA”)
    • In this clause financing statement, financing change statement, security agreement, and security interest has the meaning given to it by the PPS
    • Upon assenting to these terms and conditions in writing the Client 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 Goods/Equipment and/or collateral (account) – being a monetary obligation of the Client to 3 Monkeys AV for Services – that have previously been supplied and that will be supplied in the future by 3 Monkeys AV to the Client.
    • The Client undertakes to:
      • 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 3 Monkeys AV may reasonably require to:
        • register a financing statement or financing change statement in relation to a security interest on the Personal Property Securities Register;
        • register any other document required to be registered by the PPSA; or
        • correct a defect in a statement referred to in clause 3(a)(i) or 11.3(a)(ii).
      • indemnify, and upon demand reimburse, 3 Monkeys 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 Goods/Equipment charged thereby;
      • not register a financing change statement in respect of a security interest without the prior written consent of 3 Monkeys AV;
      • not register, or permit to be registered, a financing statement or a financing change statement in relation to the Goods/Equipment and/or collateral (account) in favour of a third party without the prior written consent of 3 Monkeys AV; and
      • immediately advise 3 Monkeys AV of any material change in its business practices of selling Goods which would result in a change in the nature of proceeds derived from such sales.
    • 3 Monkeys AV and the Client agree that sections 96, 115 and 125 of the PPSA do not apply to the security agreement created by these terms and conditions.
    • The Client waives their rights to receive notices under sections 95, 118, 121(4), 130, 132(3)(d) and 132(4) of the PPSA.
    • The Client waives their rights as a grantor and/or a debtor under sections 142 and 143 of the PPSA.
    • Unless otherwise agreed to in writing by 3 Monkeys AV, the Client waives their right to receive a verification statement in accordance with section 157 of the PPSA.
    • The Client must unconditionally ratify any actions taken by 3 Monkeys AV under clauses 3 to 11.5.
    • Subject to any express provisions to the contrary (including those contained in this clause 11), nothing in these terms and conditions is intended to have the effect of contracting out of any of the provisions of the PPSA.
    • Only to the extent that the hire of the Equipment exceeds a two (2) year hire period with the right of renewal shall clause 11 apply as a security agreement in the form of a PPS Lease in respect of Section 20 of the PPSA, in all other matters this clause 11 will apply generally for the purposes of the PPSA.

12. Security and Charge
    • In consideration of 3 Monkeys AV agreeing to supply the Goods, Equipment and/or provide its Services, the Client grants 3 Monkeys AV a security interest by way of a floating charge (registerable by 3 Monkeys AV pursuant to the PPSA) over all of its present and after acquired rights, title and interest (whether joint or several) in all other assets that is now owned by the Client or owned by the Client in the future, including without limitation any assets identified in an Acknowledgment Document (if any), to the extent necessary to secure the repayment of monies owed under this Contract for provision of the Goods, Equipment and/or Services under this Contract and/or permit 3 Monkeys AV to appoint a receiver to the Client in accordance with the Corporations Act 2001 (Cth). The security interest arises upon the Client’s acceptance of these terms and is not conditional on the existence of any Acknowledgment Document.
    • The Client indemnifies 3 Monkeys AV from and against all 3 Monkeys AV’s costs and disbursements including legal costs on a solicitor and own client basis incurred in exercising 3 Monkeys AV’s rights under this clause.
    • As a separate and continuing security, in the event that the Client defaults or breaches any term of this Contract and as a result, the security provided in clauses 1,11.2 and 12.1 as applicable and is deemed insufficient by 3 Monkeys AV to secure the repayment of monies owed by the Client to 3 Monkeys AV, the Client hereby grants 3 Monkeys AV a security interest as at the date of the default, by way of a charge, that enables the right and entitlement to lodge a caveat over any real property and or land owned by the Client now, or owned by the Client in the future, to secure the performance of the Client of its obligations under these terms and conditions (including, but not limited to, the payment of any money).The Client must, upon request, provide all information 3 Monkeys AV reasonably requires to identify and describe such property (including title particulars). This clause operates whether or not any Acknowledgment Document exists.

13. Defects, Warranties and Returns, Competition and Consumer Act 2010 (“CCA”)
    • The Client must inspect the Goods/Equipment on Delivery and must within seven (7) days of Delivery notify 3 Monkeys AV in writing of any evident defect/damage, shortage in quantity, or failure to comply with the description or quote. The Client must notify any other alleged defect in the Goods/Equipment as soon as reasonably possible after any such defect becomes evident. Upon such notification the Client must allow 3 Monkeys AV to inspect the Goods/Equipment.
    • 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 Monkeys AV acknowledges that nothing in these terms and conditions purports to modify or exclude the Non-Excluded Guarantees.
    • Except as expressly set out in these terms and conditions or in respect of the Non-Excluded Guarantees, 3 Monkeys AV makes no warranties or other representations under these terms and conditions including but not limited to the quality or suitability of the Goods/Equipment. 3 Monkeys AV’s liability in respect of these warranties is limited to the fullest extent permitted by law.
    • If the Client is a consumer within the meaning of the CCA, 3 Monkeys AV’s liability is limited to the extent permitted by section 64A of Schedule 2.
    • If 3 Monkeys AV is required to replace the Goods under this clause or the CCA, but is unable to do so, 3 Monkeys AV may refund any money the Client has paid for the Goods.
    • If the Client is not a consumer within the meaning of the CCA, 3 Monkeys AV’s liability for any defect or damage in the Goods is:
      • limited to the value of any express warranty or warranty card provided to the Client by 3 Monkeys AV at 3 Monkeys AV’s sole discretion;
      • limited to any warranty to which 3 Monkeys AV is entitled, if 3 Monkeys AV did not manufacture the Goods; and/or
      • otherwise negated absolutely.
    • Subject to this clause 13, returns will only be accepted provided that:
      • the Client has complied with the provisions of clause 1;
      • 3 Monkeys AV has agreed that the Goods are defective;
      • the Goods are returned within a reasonable time at the Client’s cost (if that cost is not significant); and
      • the Goods are returned in as close a condition to that in which they were delivered as is possible.
    • Notwithstanding clauses 1 to 13.8 but subject to the CCA, 3 Monkeys AV shall not be liable for any defect or damage which may be caused or partly caused by or arise as a result of:
      • the Client failing to properly maintain or store any Goods/Equipment;
      • the Client using the Goods/Equipment for any purpose other than that for which they were designed;
      • the Client continuing the use of the Goods/Equipment after any defect became apparent or should have become apparent to a reasonably prudent operator or user;
      • the Client failing to follow any instructions or guidelines provided by 3 Monkeys AV; and/or
      • fair wear and tear, any accident, or act of God.
    • 3 Monkeys AV may in its absolute discretion accept non-defective Goods for return in which case 3 Monkeys AV may require the Client to pay handling fees of up to twenty percent (20%) of the value of the returned Goods plus any freight costs.
    • Notwithstanding anything contained in this clause if 3 Monkeys AV is required by a law to accept a return then 3 Monkeys AV will only accept a return on the conditions imposed by that law.
    • Subject to clause 1, customised, or non-stocklist items or Goods made or ordered to the Client’s specifications are not acceptable for credit or return.

14. Intellectual Property
    • Where 3 Monkeys AV has designed, drawn or developed Goods for the Client, then the copyright in any designs and drawings and documents shall remain the property of 3 Monkeys AV. Under no circumstances may such designs, drawings and documents be used without the express written approval of 3 Monkeys AV.
    • The Client warrants that all designs, specifications or instructions given to 3 Monkeys AV will not cause 3 Monkeys AV to infringe any patent, registered design or trademark in the execution of the Client’s order and the Client agrees to indemnify 3 Monkeys AV against any action taken by a third party against 3 Monkeys AV in respect of any such infringement.
    • The Client agrees that 3 Monkeys AV may (at no cost) use for the purposes of marketing or entry into any competition, any documents, designs, drawings or Goods which 3 Monkeys AV has created for the Client.

15. Default and Consequences of Default
    • 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 3 Monkeys AV’s sole discretion such interest shall compound monthly at such a rate) after as well as before any judgment.
    • If the Client owes 3 Monkeys AV any money, the Client shall indemnify 3 Monkeys AV from and against all costs and disbursements:
      • incurred; and/or
      • which would be incurred and/or
      • for which by the Client would be liable;

in regard to legal costs on a solicitor and own client basis incurred in exercising 3 Monkeys AV’s rights under these terms and conditions, internal administration fees, 3 Monkeys AV’s Contract fees owing for breach of these terms and conditions’, including, but not limited to, Contract default fees and/or recovery costs (if applicable), as well as bank dishonour fees.

• Further to any other rights or remedies 3 Monkeys AV may have under this Contract, if a Client has made payment to 3 Monkeys AV, and the transaction is subsequently reversed, the Client shall be liable for the amount of the reversed transaction, in addition to any further costs incurred by 3 Monkeys AV under this clause 15 where it can be proven that such reversal is found to be illegal, fraudulent or in contravention to the Client’s obligations under this Contract.
• Without prejudice to 3 Monkeys AV’s other remedies at law 3 Monkeys AV shall be entitled to cancel all or any part of any order of the Client which remains unfulfilled and all amounts owing to 3 Monkeys AV shall, whether or not due for payment, become immediately payable if:
  • any money payable to 3 Monkeys AV becomes overdue, or in 3 Monkeys AV’s opinion the Client will be unable to make a payment when it falls due;
  • the Client has exceeded any applicable credit limit provided by 3 Monkeys AV;
  • the Client 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
  • a receiver, manager, liquidator (provisional or otherwise) or similar person is appointed in respect of the Client or any asset of the Client.

16. Cancellation
    • Without prejudice to any other remedies the parties may have, if at any time either party is in breach of any obligation (including those relating to payment) under these terms and conditions (“the Breaching Party”) the other party may suspend or terminate the supply or purchase of Goods/Equipment to the other party, with immediate effect, by providing the Breaching Party with written notice. Neither party shall be liable for any costs associated with a party suspending/cancelling the Contract under this clause 1.
    • If 3 Monkeys AV, due to reasons beyond 3 Monkeys AV’s reasonable control, is unable to deliver any Goods/Equipment to the Client, 3 Monkeys AV may cancel any Contract to which these terms and conditions apply or cancel Delivery of Goods/Equipment at any time before the Goods/Equipment are delivered by giving written notice to the Client. On giving such notice 3 Monkeys AV shall repay to the Client any money paid by the Client for the Goods/Equipment. 3 Monkeys AV shall not be liable for any loss or damage whatsoever arising from such cancellation.
    • The Client may cancel Delivery of the Goods/Equipment by written notice served within forty-eight (48) hours of placement of the order. If the Client cancels Delivery in accordance with this clause 3, the Client will not be liable for the payment of any costs of 3 Monkeys AV, except where a deposit is payable in accordance with clause 6.4.
    • However, cancellation of orders for Goods made to the Client’s specifications, or for non-stocklist items, will definitely not be accepted once production has commenced, or an order has been placed.

17. Privacy Policy
    • All emails, documents, images or other recorded information held or used by 3 Monkeys AV is Personal Information, as defined and referred to in clause 3, and therefore considered Confidential Information. 3 Monkeys AV acknowledges its obligation in relation to the handling, use, disclosure and processing of Personal Information pursuant to the Privacy Act 1988 (“the Act”) including the Part IIIC of the Act being Privacy Amendment (Notifiable Data Breaches) Act 2017 (NDB) and any statutory requirements, where relevant in a European Economic Area (“EEA”), under the EU Data Privacy Laws (including the General Data Protection Regulation “GDPR”) (collectively, “EU Data Privacy Laws”). 3 Monkeys AV acknowledges that in the event it becomes aware of any data breaches and/or disclosure of the Client’s Personal Information, held by 3 Monkeys AV that may result in serious harm to the Client, 3 Monkeys AV will notify the Client in accordance with the Act and/or the GDPR. Any release of such Personal Information must be in accordance with the Act and the GDPR (where relevant) and must be approved by the Client by written consent, unless subject to an operation of law.
    • Notwithstanding clause 1, privacy limitations will extend to 3 Monkeys AV in respect of Cookies where the Client utilises 3 Monkeys AV’s website to make enquiries. 3 Monkeys AV agrees to display reference to such Cookies and/or similar tracking technologies, such as pixels and web beacons (if applicable), such technology allows the collection of Personal Information such as the Client’s:
      • IP address, browser, email client type and other similar details;
      • tracking website usage and traffic; and
      • reports are available to 3 Monkeys AV when 3 Monkeys AV sends an email to the Client, so 3 Monkeys AV may collect and review that information (“collectively Personal Information”).

If the Client consents to 3 Monkeys AV’s use of Cookies on 3 Monkeys AV’s website and later wishes to withdraw that consent, the Client may manage and control 3 Monkeys AV’s privacy controls via the Client’s web browser, including removing Cookies by deleting them from the browser history when exiting the site.

• The Client agrees for 3 Monkeys AV to obtain from a credit reporting body (CRB) a credit report containing personal credit information (e.g. name, address, D.O.B, occupation, driver’s license details, electronic contact (email, Facebook or Twitter details), medical insurance details or next of kin and other contact information (where applicable), previous credit applications, credit history) about the Client in relation to credit provided by 3 Monkeys AV.
• The Client agrees that 3 Monkeys AV may exchange information about the Client with those credit providers and with related body corporates for the following purposes:
  • to assess an application by the Client; and/or
  • to notify other credit providers of a default by the Client; and/or
  • to exchange information with other credit providers as to the status of this credit account, where the Client is in default with other credit providers; and/or
  • to assess the creditworthiness of the Client including the Client’s repayment history in the preceding two (2) years.
• The Client consents to 3 Monkeys AV being given a consumer credit report to collect personal credit information relating to any overdue payment on commercial credit.
• The Client agrees that personal credit information provided may be used and retained by 3 Monkeys AV for the following purposes (and for other agreed purposes or required by):
  • the provision of Goods/Equipment; and/or
  • analysing, verifying and/or checking the Client’s credit, payment and/or status in relation to the provision of Goods/Equipment; and/or
  • processing of any payment instructions, direct debit facilities and/or credit facilities requested by the Client; and/or
  • enabling the collection of amounts outstanding in relation to the Goods/Equipment.
• 3 Monkeys AV may give information about the Client to a CRB for the following purposes:
  • to obtain a consumer credit report; and/or
  • allow the CRB to create or maintain a credit information file about the Client including credit history.
• The information given to the CRB may include:
  • Personal Information as outlined in 3 above;
  • name of the credit provider and that 3 Monkeys AV is a current credit provider to the Client;
  • whether the credit provider is a licensee;
  • type of consumer credit;
  • details concerning the Client’s application for credit or commercial credit (e.g. date of commencement/termination of the credit account and the amount requested);
  • advice of consumer credit defaults (provided 3 Monkeys AV is a member of an approved OAIC External Disputes Resolution Scheme), overdue accounts, loan repayments or outstanding monies which are overdue by more than sixty (60) days and for which written notice for request of payment has been made and debt recovery action commenced or alternatively that the Client no longer has any overdue accounts and 3 Monkeys AV has been paid or otherwise discharged and all details surrounding that discharge(e.g. dates of payments);
  • information that, in the opinion of 3 Monkeys AV, the Client has committed a serious credit infringement; and/or
  • advice that the amount of the Client’s overdue payment is equal to or more than one hundred and fifty dollars ($150).
• The Client shall have the right to request (by e-mail) from 3 Monkeys AV:
  • a copy of the Personal Information about the Client retained by 3 Monkeys AV and the right to request that 3 Monkeys AV correct any incorrect Personal Information; and
  • that 3 Monkeys AV does not disclose any Personal Information about the Client for the purpose of direct marketing.
• 3 Monkeys AV will destroy Personal Information upon the Client’s request (by e-mail) or if it is no longer required unless it is required in order to fulfil the obligations of this Contract or is required to be maintained and/or stored in accordance with the law.
• The Client can make a privacy complaint by contacting 3 Monkeys AV via e-mail. 3 Monkeys AV will respond to that complaint within seven (7) days of receipt and will take all reasonable steps to make a decision as to the complaint within thirty (30) days of receipt of the complaint. In the event that the Client is not satisfied with the resolution provided, the Client can make a complaint to the Information Commissioner at oaic.gov.au.

18. Service of Notices
    • Any written notice given under this Contract shall be deemed to have been given and received:
      • by handing the notice to the other party, in person;
      • by leaving it at the address of the other party as stated in this Contract;
      • by sending it by registered post to the address of the other party as stated in this Contract;
      • if sent by facsimile transmission to the fax number of the other party as stated in this Contract (if any), on receipt of confirmation of the transmission; or
      • if sent by email to the other party’s last known email address.
    • Any notice that is posted shall be deemed to have been served, unless the contrary is shown, at the time when by the ordinary course of post, the notice would have been delivered.

19. Trusts
    • If the Client at any time upon or subsequent to entering in to the Contract is acting in the capacity of trustee of any trust or as an agent for a trust (“Trust”) then whether or not 3 Monkeys AV may have notice of the Trust, the Client covenants with 3 Monkeys AV as follows:
      • the Contract extends to all rights of indemnity which the Client now or subsequently may have against the Trust, the trustees and the trust fund;
      • the Client has full and complete power and authority under the Trust or from the Trustees of the Trust as the case may be to enter into the Contract and the provisions of the Trust do not purport to exclude or take away the right of indemnity of the Client against the Trust, the trustees and the trust fund. The Client will not release the right of indemnity or commit any breach of trust or be a party to any other action which might prejudice that right of indemnity; and
      • the Client will not during the term of the Contract without consent in writing of 3 Monkeys AV (3 Monkeys AV will not unreasonably withhold consent), cause, permit, or suffer to happen any of the following events:
        • the removal, replacement or retirement of the Client as trustee of the Trust;
        • any alteration to or variation of the terms of the Trust;
        • any advancement or distribution of capital of the Trust; or
        • any resettlement of the trust fund or trust property.

20. General
    • Any dispute or difference arising as to the interpretation of these terms and conditions or as to any matter arising herein, shall be submitted to, and settled by, mediation before resorting to any external dispute resolution mechanisms (including arbitration or court proceedings) by notifying the other party in writing setting out the reason for the dispute. The parties shall share equally the mediator’s fees. Should mediation fail to resolve the dispute, the parties shall be free to pursue other dispute resolution avenues.
    • The failure by either party to enforce any provision of these terms and conditions shall not be treated as a waiver of that provision, nor shall it affect that party’s right to subsequently enforce that provision. If any provision of these terms and conditions shall be invalid, void, illegal or unenforceable, that provision shall be severed from this Contract, and the validity, existence, legality and enforceability of the remaining provisions shall not be affected, prejudiced or impaired.
    • These terms and conditions and any Contract to which they apply shall be governed by the laws of Western Australia and are subject to the jurisdiction of the Perth courts in that state. These terms prevail over all terms and conditions of the Client (even if they form part of the Client’s purchase order).
    • 3 Monkeys AV may licence and/or assign all or any part of its rights and/or obligations under this Contract without the Client’s consent provided the assignment does not cause detriment to the Client.
    • The Client cannot licence or assign without the written approval of 3 Monkeys AV.
    • 3 Monkeys AV may elect to subcontract out any part of the Services but shall not be relieved from any liability or obligation under this Contract by so doing. Furthermore, the Client agrees and understands that they have no authority to give any instruction to any of 3 Monkeys AV’s sub-contractors without the authority of 3 Monkeys AV.
    • The Client agrees that 3 Monkeys AV may amend their general terms and conditions for subsequent future Contracts with the Client by disclosing such to the Client in writing. These changes shall be deemed to take effect from the date on which the Client accepts such changes, or otherwise at such time as the Client makes a further request for 3 Monkeys AV to provide Goods/Equipment to the Client.
    • Neither party shall be liable for any default due to any act of God, war, terrorism, strike, lock-out, industrial action, fire, flood, storm, national or global pandemics and/or the implementation of regulation, directions, rules or measures being enforced by Governments or embargo, including but not limited to, any Government imposed border lockdowns (including, worldwide destination ports), etc, (“Force Majeure”) or other event beyond the reasonable control of either party. This clause does not apply to a failure by the Client to make a payment to 3 Monkeys AV, once the parties agree that the Force Majeure event has ceased.
    • Both parties warrant that they have the power to enter into this Contract and have obtained all necessary authorisations to allow them to do so, they are not insolvent and that this Contract creates binding and valid legal obligations on them.
    • The rights and obligations of the parties will not merge on completion of any transaction under this Contract, and they will survive the execution and Delivery of any assignment or other document entered, for the purpose of, implementing any transaction under this Contract.
    • If part or all of any term of this Contract is or becomes invalid, illegal or unenforceable, it shall be severed from this Contract and shall not affect the validity and enforceability of the remaining terms of this Contract.