1.1. These Terms and Conditions (‘Terms’) shall govern the supply of goods and/or services by Audio Active Australia Pty Ltd (ACN 138 924 811) (‘Audio Active’) to you (‘the Customer’) and shall apply to all transactions between Audio Active and the Customer.
1.2. These Terms supersede all prior understandings, arrangements and agreements relating to the above supply of goods and services. In the event that there is any inconsistency between these Terms and any other communications from Audio Active, these Terms shall prevail unless otherwise agreed by Audio Active.
1.3. ‘Goods’ means any electronic equipment, parts, accessories and other goods supplied by Audio Active to the Customer, and ‘Services’ means all services provided by Audio Active to the Customer, from time to time.
2.1. An order made by the Customer to Audio Active must be made in writing or verbally to a representative of Audio Active. By placing an order with Audio Active, the Customer agrees to be bound by these Terms.
2.2. Audio Active is not obliged to accept any order. Audio Active may accept any order by supplying the Customer with the Goods (or providing confirmation that it will supply such Goods), or the Customer paying Audio Active the price for the Goods specified in the order and such amounts being accepted by Audio Active.
2.3. No order may be cancelled except with the written consent of Audio Active and the Customer agrees to indemnify Audio Active against any cost, loss or damage incurred as a result of such cancellation.
3. Prices and GST
3.1. Prices of Goods and Services may be subject to change. Audio Active shall endeavour to notify the Customer at the time of placing an order of any price changes.
3.2. Otherwise, prices quoted in writing by Audio Active are valid for acceptance by the Customer for thirty (30) days from the date of issue. Audio Active may at its sole discretion vary a quote if it is not accepted by the Customer within this period.
3.3. Unless otherwise expressly stated, all prices quoted by Audio Active are exclusive of goods and services tax (as defined by the A New Tax System (Goods and Services Tax) Act 1999 as amended from time to time, ‘GST’). The Customer agrees that the quoted price (‘Original Cost’) is to be increased so that Audio Active receives an amount (‘Increased Cost’) which, after subtracting the GST liability of Audio Active from the Increased Cost, results in Audio Active retraining the Original Cost after payment of the GST liability.
4. Terms of Payment
4.1. Unless Audio Active has agreed to supply the Customer in accordance with credit terms, the initial trading terms shall be cash on delivery until credit terms and an account have been established with Audio Active.
4.2. Notwithstanding clause 4.1, the Customer agrees to pay any tax invoice issued by Audio Active within the date for payment as set out in a tax invoice that is issued in respect of Goods or Services supplied to the Customer by Audio Active.
4.3. If any amount owing by the Customer to Audio Active is not paid within the payment terms specified in Clause 4.1 and 4.2, then:
(a) the Customer agrees to pay to Audio Active any costs (including legal costs on a solicitor/own client basis), charges, expenses or outgoings incurred in relation to the recovery of the outstanding amount;
(b) Audio Active may, at its sole discretion, charge interest on any outstanding amount at the interest rate of three percent (3%) in excess of the Penalty Interest Rate prescribed under the Penalty Interest Rates Act 1983 (Vic) from time to time, per month until the date of payment;
(c) Audio Active may, at its sole discretion, suspend supply of any Goods or Services without notice.
4.4. Further to clause 4.3 above, if the Customer defaults in payment of any account on the due date all moneys which would become owing by the Customer to Audio Active at a later date for supply of Goods or Services shall be immediately due and payable without the requirement of any notice to the Customer.
4.5. If the Customer defaults in payment of any account on the due date, Audio Active may in its sole discretion:
(a) cease to supply further Goods and/or Services to the Customer; and
(b) suspend the provision of credit to the Customer until all amounts owing are paid for in full.
5. Customer Credit Facility
5.1. The Customer may apply to Audio Active for commercial credit in accordance with Audio Active’s Terms and Conditions of Credit by submitting a Credit Application Account form (‘Application for Commercial Credit’).
5.2. Audio Active may, at its sole discretion:
(a) agree to provide commercial credit to the Customer; and
(b) suspend or withdraw commercial credit from the Customer without notice.
6.1. Delivery of the Goods supplied by Audio Active to the Customer shall be taken to occur upon the loading of the Goods by Audio Active onto the vehicle of the delivery agent, courier, freight agent or otherperson engaged to transport the Goods to the Customer (‘Delivery’).
6.2. Unless otherwise stated in writing by Audio Active, the Customer will be charged for cartage on all deliveries of Goods.
6.3. If Goods are to be delivered to a Customer, any period or date for delivery stated by Audio Active is intended as an estimate only and is not a contractual commitment. Audio Active will use its best endeavours to meet any estimated delivery dates but Audio Active will not be liable for any loss or damage suffered by the Customer or any other person for failure to meet an estimated delivery date.
6.4. The Customer will accept Delivery of the Goods promptly and will be responsible for any demurrage and storage costs incurred as a resultof failure to do so. The customer acknowledges that it will also be responsible for all attempted Delivery charges incurred by Audio Active as a result of the Customer’s failure to accept prompt Delivery of the Goods.
7.1. Audio Active shall not be liable for any indirect or consequential losses or expenses suffered by the Customer, howsoever caused.
7.2. Conditions, warranties and other provisions which apply to or in respect of the Goods under or by virtue of the Competition and Consumer Act 2010 (Cth) as amended from time to time or any other enactment of the Commonwealth of Australia or of any State or Territory thereof and which, by or under that enactment, cannot be excluded from the contract for the supply of Goods or Services by Audio Active are declared to apply to the contract without restriction, limit or modification.
7.3. All other guarantees, warranties and conditions which would, or may, but for this clause be implied (whether by statute, law, trade usage or otherwise howsoever) into the contract for the supply of Goods or Services by Audio Active (including in particular any which may in any way relate to quality or fitness for any particular purpose) are hereby expressly excluded from the contract to the extent that they can be excluded at law.
7.4. Following Delivery, the Customer shall be required to inspect the Goods and within seven days of receipt of the Goods notify Audio Active in writing of any Goods which do not correspond with the order, contain defects, are damaged, in a state of disrepair or otherwise not merchantable and fit for purpose. Audio Active shall be entitled to inspect the Goods following receipt of such notice to verify the Customer’s claim. To the extent permitted by law, Audio Active’s liability for any Goods which do not correspond with the order, are defective, damaged, in a state of disrepair or not merchantable and fit for purpose shall be limited to either replacing the Goods, repairing
the Goods or refunding the price paid for the Goods or providing the Customer with credit for future purchases (Audio Active’s discretion).
7.5. To the extent that the Australian Consumer Law applies in relation to warranty claims arising upon the supply of any Goods by Audio Active to a Consumer as defined under the Australian Consumer Law, then the following shall apply:
(a) If there is a major failure with a Good, the Customer is entitled to:
a. reject the Good and get a refund;
b. reject the Good and get an identical replacement,
or one similar in value if reasonably available; or
c. keep the Good and obtain compensation from Audio Active
for the drop in value of the Good caused by the major failure.
(b) If there is a minor failure with the Good, the
Customer is entitled, at the election of Audio Active, to:
a. a refund of the cost of the Good;
b. replacement of the Good; or
c. have the Good repaired within a reasonable time.
(c) To issue a warranty claim, the Customer will be required to:
a. return the Good to the place of purchase;
b. present their receipt as proof of purchase;
c. identify the defect in the Good; and
d. present Good for inspection on request.
(d) Audio Active’s contact details for making
a warranty claim are as follows:
Audio Active Australia Pty Ltd
Head Office: 90 Bridport Street, Albert Park Victoria 3206
Phone: +61 (0)3 9699 8900 Fax: +61 (0)3 9699 8955
(e) Audio Active will try and meet the reasonable expenses
incurred by the Customer in making a warranty claim.
8. Passing of title to Goods, Retention of Title, Registration under Personal Property Securities Act 2009 (Cth) (‘PPSA’)
8.1. The Customer acknowledges and agrees that until payment of all monies owing to Audio Active in relation to particular Goods has been received, such Goods shall remain the property of Audio Active and no property in or title to the Goods will pass to the Customer.
8.2 These Terms and Conditions take effect from the date of the Client adopting or accepting these Terms and Conditions or placing an order as a security interest and are a security agreement within the meaning of the Act.
8.3 The Customer acknowledges and agrees that these Terms constitute a security agreement for the purposes of the PPSA and that a security interest exists in all Goods (and their proceeds) that are supplied by Audio Active to the Customer and in all future Goods supplied (and their proceeds).
8.4. The Customer agrees that Audio Active will have a first ranking Purchase Money Security Interest (as defined in the PPSA) in any Goods supplied to the Customer under these Terms or any related order or contract. Audio Active may register any security interest contemplated by these Terms and/or any related order or contract on the PPS Register (as defined in the PPSA). The Customer agrees to supply Audio Active with any information, provide Audio Active with all necessary assistance and take any steps Audio Active requires for the purposes of perfecting and enforcing such registration. The Customer will not allow a security interest to be created or registered over the Goods supplied in priority to the security interest held by Audio Active. The Customer shall not register or permit to be registered a financing statement or a financing change statement in
relation to the Goods supplied in favour of a third party without the prior written consent of Audio Active.
8.5 The parties agree that where Audio Active has rights in addition to those under Chapter 4 of the PPSA, those rights will continue to apply.
8.6 The Customer contracts out of and waives its rights to receive notices under the following provisions of the PPSA: sections 95, 120, 121(4), 123, 125, 129, 130, 134 and 135(2).
8.7 The Customer contracts out of and waives its right to receive a statement of account under s. 132.
8.8 The Customer waives its rights as a grantor and/or a debtor to redeem the Goods under s. 142 of the PPSA or reinstate the collateral under s. 143 of the PPSA, and to the extent permitted by law waives its right to receive a notice of any verification statement under s. 157 of the PPSA.
8.9 The Client agrees to reimburse the Company for all costs, expenses and other charges incurred, expended or payable by the Company in relation to the filing of a financing statement, or a financing change statement or releasing the security interest created by these terms.
8.10 The Client irrevocably authorises the Company and any of its lawful agents, at any reasonable time, to enter its premises or any premises occupied by the Client and re-take any goods sold supplied under these Terms and Conditions and then re-sell those goods and retain the proceeds of the sale without prejudice to its rights to claim the balance of all moneys due under these Terms and Conditions. The Client must indemnify the Company in respect of any such entry.
8.11 The provisions of clause 8 survive the termination of these Terms and Conditions.
8.12 For the purposes of this clause:
(i) Act meaning the Personal Property Securities Act 2009 (Cth).
(ii) Account, financing statement, financing change statement; inventory, proceeds, purchase money security interest, register, security interest, security agreement and verification statement have the meanings given to them in the Act.
8.13 Despite clauses 8.1-8.12, the Client may sell the goods to a third party in the ordinary course of its business of selling goods of the kind supplied by the Company and deliver them to that party provided that:
a) where the Client is paid by the third party and Audio Active has not been paid by the Client for the goods pursuant to these Terms and Conditions, the Client holds the whole of the proceeds of sale on trust for the Company and must pay such proceeds into a special bank account into which no other moneys other than proceeds of sale by the Client of the Company’s goods are be deposited and which shall incorporate as part of the title of the account “Proceeds of sale of Audio Active Pty Ltd Goods”;
b) where the Client is not paid by that third party, and the Company has not been paid by the Client for those goods the Client agrees, at the option of the Company that the Company may collect that account on giving the Client notice in writing to that effect. The Company shall be entitled to issue proceedings in the name of the Client against the third party for recovery of that account for the benefit of the Company; and;
c) The Client shall keep full and complete records of goods it has purchased from the Company including details of the date, price and identity of the goods.
9. Risk and Responsibility
9.1 The risk in the Goods and all insurance responsibility for theft, damage or otherwise in respect of the Goods shall pass to the Customer upon Delivery until Audio Active has been paid in full.
9.2 Further to clause 9.1, the Customer accepts upon Delivery of the Goods all risk for loss or damage to the Goods whether caused by the Customer or not, and the customer indemnifies Audio Active against all claims, demands, suits and actions for loss or damage caused by or arising from the handling, transport, storage, display,
installation, neglect or use of the Goods after Delivery. Risk in the Goods will remain with the Customer at all times unless Audio Active retakes possession of the Goods in accordance with these Terms.
10. Cancellation by Customer
10.1. Unless otherwise agreed in writing, the Customer may not cancel an order which has been accepted by Audio Active.
10.2. The Customer shall be liable for all orders placed by any person employed by the Customer, or an agent acting on behalf of the Customer.
10.3. Unless otherwise agreed between the Customer and Audio Active, upon cancellation any deposit paid by the Customer will be forfeited to Audio Active.
11. Insolvency and Default
11.1. Audio Active may by notice in writing to the Customer terminate any agreement with the Customer so far as unperformed by Audio Active forthwith if:
(a) the Customer commits any breach of any of theseTerms or any other agreement with Audio Active;
(b) the Customer or any guarantor of the Customer compounds with or negotiates for any composition with its creditors generally;
(c) being an individual the Customer dies, becomes permanently incapacitated, or has a trustee appointed or a receiving order made against him or commits any act of insolvency;
(d) a bankruptcy petition or winding up application as the case may be in respect of the Customer (whether voluntary or otherwise) is presented to Court;
(e) being a body corporate or legal person, the Customer or any guarantor of the Customer calls any meeting of its creditors or has a liquidator, provisional liquidator, official manager, mortgagee, mortgagee’s agent, receiver or administrator of all or any of its assets appointed or enters into any liquidation (other than solely for reconstruction or amalgamation while solvent) or commits any other act of insolvency;
(f) judgment is entered against the Customer for a sum in excess of twenty thousand dollars ($20,000.00) and the same remains unsatisfied or is not appealed from for a period of twenty-one (21) days; or
(g) the financial position of the Customer, or some other fact or circumstance, leads Audio Active to believe on reasonable grounds that the Customer is likely to materially fail to complete its obligations under any agreement with Audio Active.
11.2. In the event of such termination:
(a) the Customer will forthwith on demand deliver to Audio Active any Goods which are in the possession or control of the Customer but in which the property in or title to remains with Audio Active and, in default thereof, Audio Active will be entitled to repossess the same in accordance with these Terms and the Customer shall indemnify Audio Active from and against any liability to any third party in respect of any such damage and from and against all actions, proceedings, claims, demands, costs, damages and expenses howsoever arising; and
(b) Audio Active will be entitled by notice in writing to the Customer to declare immediately due and payable any amounts outstanding from the Customer to Audio Active under these Terms or any other agreement (such sums thereby becoming forthwith due and payable); and
(c) Audio Active may claim damages from the Customer for breach of contract and claim legal costs on a solicitor-own client basis.
11.3. Any termination will be without liability on the part of Audio Active for any and all direct or indirect loss or damage thereby caused to the Customer.
12. Sale Restrictions
12.1. The Customer must not sell any Good or Goods to any person unless the Good or Goods (including packaging) are in or substantially in its original condition as supplied by Audio Active. For the purposes of this clause, a Good or Goods are in its original condition if, at the date of sale by the Customer, as compared with the state of the Good or Goods at the time of Delivery:
(a) there is no alteration of the state or condition of the Good or Goods;
(b) there is no alteration or obliteration of any of the trade marks, numbers, codes or other written indicators used on or in relation to the Good or Goods or their packaging; and (c) the Good or Goods are in their original sealed packaging (if any).
12.2. The Customer agrees not to sell Goods from any location, other than the location of the Customer’s retail business premises or any other location to which the Company consents in writing.
12.3. The Customer agrees not to transact more than a reasonable percentage (as may be notified by Audio Active from time to time) of its total sales of Goods in any 12 month period over the internet. For the purposes of this clause, an internet sale is any sale initiated (whether in whole or part) and completed (whether in whole or part) by way of communications between the Customer and its customer by email or otherwise using the internet. Where the Customer offers Goods via the internet, the following shall apply:
(a) The Customer shall maintain commercial premises whereby display stock and promotional merchandising endorsed by Audio Active supports all internet based sales;
(b) Internet sales are may only be conducted through the Customer’s own website (and not via any third party website including, but not limited to, EBay);
(c) The Customer shall on request, provide to Audio Active a breakdown of retail store and the internet/phone sales, and documentary evidence in support.
12.4 The Customer agrees to procure each of its affiliates or related parties not to engage in conduct that would or could breach any of clause 12.