Terms & Conditions
In these Terms, unless the context otherwise requires:
1.1 "Change in Control" means a change in the person with effective control over the Customer when compared to immediately before the initial acceptance of these Terms (ignoring any amendments or updates), as a result of changes to the membership or beneficial ownership (whether over the shares, business or assets) of the Customer.
1.2 "Terms" means these terms and conditions between Soundcorp and the Customer for the sale of the goods.
1.3 "Customer" means the purchaser of the goods from Soundcorp.
1.4 “effective control” means the ability to control the composition of the board of directors, having the board accustomed to act in accordance with the person’s instructions, or beneficially holding more than 50% of the shares giving the right to vote at general meetings or receive distributions, and in relation to a trust, includes the holding of the position of trustee of the trust and beneficially holding more than one half of the units, securities or other rights granted by the trust giving the right to receive distributions.
1.5 "goods" means the goods and/or (unless the context otherwise requires) the services purchased from Soundcorp by the Customer.
1.6 “Insolvency Event” means any of the following events:
1.6.1 in respect of a Customer that is a corporation,
(a) a receiver, receiver and manager, trustee, other controller as defined in section 9 of the Corporations Act 2001 (Cth) or similar official is appointed over any of the assets or undertaking of the Customer;
(b) the Customer suspends payment of its debts generally;
(c) the Customer is or becomes unable to pay its debts when they are due or is or becomes unable to pay its debts or is presumed to be insolvent within the meaning of the Corporations Act 2001 (Cth); or
(d) a resolution is passed or any steps are taken to appoint, or to pass a resolution to appoint, an administrator;
(e) an application or order is made for the winding up or dissolution of the Customer or a resolution is passed or any steps are taken to pass a resolution for the winding up or dissolution of the Customer, otherwise than for the purpose of an amalgamation or reconstruction that has the prior written consent of Soundcorp; or
(f) the Customer ceases to carry on business or threatens to cease to carry on business,
1.6.2 in respect of a Customer who is an individual, the party becomes bankrupt or enters into any arrangement or composition with his or her creditors or proposes to do so.
1.7 “PPS Act” means the Personal Property Securities Act 2009 (Cth).
1.8 "Soundcorp" means Soundcorp Pty Ltd ACN 007 270 886.
2 APPLICATION OF TERMS AND CONDITIONS
2.1 These Terms shall apply to the sale of the goods from Soundcorp to the Customer and to the entire exclusion of any other terms or conditions which may be proffered by the Customer (including the Customer's order) which are in any way inconsistent with these Terms and notwithstanding that but for this provision Soundcorp would or might otherwise be regarded as having accepted or agreed to be bound by such other terms and conditions.
2.2 Victorian law applies to the contract and any dispute which may arise between Soundcorp and the Customer in relation to it will be litigated in the appropriate court in Victoria.
3.1 If the Customer wishes to vary an order already placed, the Customer must give written notice to Soundcorp of the proposed variation. Soundcorp reserves the right to adjust the purchase price and anticipated delivery date for the goods in these circumstances.
3.2 The Customer cannot cancel an order, except with Soundcorp’s written consent and on terms which will indemnify Soundcorp against all losses, damages or expenses suffered or incurred by Soundcorp as a result of that cancellation.
3.3 Goods are offered for sale subject to availability.
All prices for goods including those in Soundcorp’s current price list are exclusive of GST, unless otherwise stated. In addition to the price for the goods, the Customer must pay GST at the prevailing GST rate on those amounts, if applicable. Soundcorp’s tax invoice will include details of GST charged.
5 PAYMENT TERMS
5.1 The purchase price for the goods must, in the case of approved credit accounts, be paid in full and without deduction or set off no later than 30 days after the date of invoice. Otherwise, the purchase price for the goods must be paid on delivery of the goods.
5.2 Soundcorp reserves the right to suspend deliveries without liability where payment is not received in accordance with clause 5.1 or in accordance with an alternative arrangement agreed to in writing by Soundcorp.
5.3 Unless stated otherwise, the price of goods quoted by Soundcorp includes packaging in accordance with recognised standards but the cost of any special packing requested or required by the Customer, or deemed necessary by Soundcorp, will be paid by the Customer.
6 DELIVERY OF GOODS
6.1 Freight arrangements and costs are the responsibility of the Customer.
6.2 The Customer waives any right to claim for any alleged shortages in goods delivered unless a claim is lodged within 24 hours from the date of delivery.
6.3 All delivery times stated by Soundcorp are estimates only and shall not make Soundcorp liable for late delivery or non-delivery of the goods.
6.4 Part supplies, or delays in delivery of the goods, shall not relieve the Customer from its obligations to pay for, or to receive, the goods delivered.
6.5 Soundcorp is not liable for any damage to goods or loss of goods while the goods are in transit unless otherwise agreed to in writing with Soundcorp.
6.6 Goods may not be returned for credit, replacement or warranty repair without the prior specific approval of Soundcorp. Unauthorised return of goods will not be accepted. Freight charges on returns are to the Customer's account, unless previously authorised by Soundcorp. Where freight is to Soundcorp's account, only nominated carriers are to be used. Please request carrier particulars from Soundcorp’s office.
7 Risk and RETENTION OF TITLE
7.1 From the time of despatch from Soundcorp’s premises:
7.1.1 the goods are at the sole risk of the Customer; and
7.1.2 the risk of any loss or damage to or deterioration of the goods, however caused, will be the responsibility of the Customer.
7.2 Soundcorp remains the legal and beneficial owner of the goods until payment in full of the purchase price and all other amounts owed by the Customer to Soundcorp.
7.3 Until payment in full of the purchase price and all other amounts owed by the Customer to Soundcorp:
7.3.1 the Customer, having actual or constructive possession of the goods, will keep the goods as bailee only and owes Soundcorp the duties and liabilities of a bailee including, but not limited to, accepting all risk for loss of or deterioration of or damage to the goods;
7.3.2 the Customer must store the goods separately and not remove any of Soundcorp’s markings, tags or labels from the goods or the packaging; and
7.3.3 if the Customer receives any proceeds from the sale of the goods, the Customer receives those proceeds on trust for Soundcorp to be applied in payment of the purchase price for the goods and other amounts owed by the Customer to Soundcorp (to be applied first in payment of the purchase price, then interest and then other amounts owed by the Customer). Such proceeds must be kept separate and dealt with separately by the Customer at all times until all amounts owing have been duly paid to Soundcorp.
8 SECURITY INTEREST
8.1 Expressions used in this clause 8 and in the PPS Act have the same meanings as when used in the PPS Act.
8.2 If Soundcorp already has a perfected security interest in goods previously supplied to the Customer together with their proceeds, that security interest continues in relation to those goods and the goods supplied or to be supplied under these Terms. Otherwise, the Customer grants to Soundcorp a security interest in the goods supplied on credit and any proceeds in the Goods suppled on credit and all the Customer’s present and future rights in those goods and any proceeds as security for payment of all amounts the Customer owes Soundcorp, and
8.2.1 Soundcorp may register this security interest with the Registrar of Personal Property Securities pursuant to the PPS Act in order to perfect its security interest;
8.2.2 the Customer agrees the security interest granted to Soundcorp pursuant to these Terms may be registered as a purchase money security interest in relation to the goods and the proceeds of the goods;
8.2.3 if requested, the Customer must pay or reimburse the costs of registering the security interest, and provide Soundcorp with all assistance reasonably required in order for Soundcorp to register the security interest; and
8.2.4 for the purpose of section 115 of the PPS Act, the following sections of the Act do not apply to these Terms and Conditions: sections 125, 132(3)(d) and 132(4), and Soundcorp need not give any notice under the PPS Act (including notice of a verification statement) unless the notice is required by the PPS Act to be given.
8.3 The Customer agrees to do anything which Soundcorp requires for the purposes of ensuring the security interest is perfected and to enable Soundcorp to exercise any of its rights in relation to that security interest.
8.4 If goods that Soundcorp has supplied to the Customer become an accession of or comingle with other goods supplied by other persons whether of an equivalent type and quality or not, it:
8.4.1 must, upon becoming aware, immediately notify Soundcorp; and
8.4.2 grants Soundcorp a security interest in the comingled or converted goods to the value of the goods that Soundcorp has supplied to the Customer but which have not yet been paid for.
8.5 The Customer consents to Soundcorp searching the Personal Property Securities Register at any time for any information about the Customer.
8.6 The Customer waives its right to receive a copy of the verification statement confirming registration of a financing statement or financing change statement relating to the security interest granted under these terms and conditions.
8.7 In the event a third party has registered a security interest that has priority over the goods, the Customer must procure that the third party enters into a deed of priority with Soundcorp to ensure that Soundcorp’s security interest in the goods has first priority.
8.8 Everything the Customer is required to do under this clause 8 is at the Customer’s expense.
9.1 Interest on default
If the Customer fails to pay an amount due under this contract after the due date, Soundcorp reserves the right to charge interest on all overdue payments at the rate for the time being fixed under section 2 of the Penalty Interest Rates Act 1983 (Vic) from and including the due date until but excluding the date of payment. Any funds received from the Customer by Soundcorp will first be applied in payment of the purchase price, then interest and then other amounts owed by the Customer
9.2 Events of default
9.2.1 the Customer defaults in payment of any amount owed by the Customer to Soundcorp;
9.2.2 the Customer fails to comply with any provision of this contract;
9.2.3 without Soundcorp’s prior written consent the Customer, being a corporation not listed on the Australian Stock Exchange (or a subsidiary of one), undergoes a Change of Control;
9.2.4 without Soundcorp’s prior written consent the Customer changes its business or corporate structure in any material way;
9.2.5 the Customer, being an individual, dies or becomes of unsound mind; or
9.2.6 an Insolvency Event occurs in relation to the Customer;
then, except as otherwise provided by law, the Customer is in default.
9.3 Effect of default
Upon an Event of default occurring under clause 9.2 of this contract:
9.3.1 Soundcorp or its duly authorised agents or both may, without affecting any of its other rights or remedies and without notice to the Customer, enter the Customer’s premises or any other premises where goods being the subject of a retention of title under clause 7.2 are situated for the purpose of recovering possession of the goods (without liability for trespass or any resulting damage) and recover possession of and retain or resell the goods;
9.3.2 if the Customer has sold the goods, or products manufactured using the goods are sold, or utilised, comingled, assimilated into any other products or disposed of or stored the goods in such a manner as to render the goods irrecoverable or unidentifiable, the cost of the goods will immediately be a debt due by the Customer and recoverable by an action in law; and
9.3.3 the Customer appoints Soundcorp as its attorney, in connection with Soundcorp’s rights and remedies pursuant to these Terms and any other rights or remedies which may accrue to Soundcorp, to do all things, execute all documents and otherwise act in place of the Customer for the purposes of giving effect to these Terms. Without limiting this provision, the attorney may recover possession of the goods and recover the proceeds of the sale of the goods which may at any time be received or receivable by the Customer.
9.4 Rights of Soundcorp not affected
The rights of Soundcorp under this clause 9 are in addition to any other rights or remedies that Soundcorp may have at law or otherwise.
10 SOUNDCORP WARRANTIES
10.1 Subject to clause 10.2, and with the exception of warranties expressly provided by Soundcorp, and so far as it is legally able to do so, Soundcorp assigns to the Customer the benefit of any warranties, guarantees and conditions given by the manufacturer of the goods, but otherwise gives no warranties, guarantees or conditions or makes any representations in relation to supply and sale of the goods and the Customer releases Soundcorp from all liability for any loss, claim, damage or injury suffered in connection with the supply of the goods.
10.2 Soundcorp's liability to the Customer in respect of any non-excludable warranty or condition shall be limited to the maximum extent possible to:
10.2.1 in the case of the goods supplied by Soundcorp, either of the following (as Soundcorp may decide):
(a) the replacement of the goods or the supply of equivalent goods;
(b) the repair of the goods;
(c) the payment of the cost of replacing the goods or of acquiring equivalent goods; or
(d) the payment of the cost of having the goods repaired; and
10.2.2 in the case of any services provided by Soundcorp, either of the following (as Soundcorp may decide);
(a) the supply of the services again, or
(b) the payment of having the services supplied again.
10.3 Except as provided for in these Terms or Soundcorp’s product catalogue, all express and implied warranties, guarantees and conditions under statute, general law or trade usage, as to merchantability, description, quality, suitability or fitness of the goods for any purpose, or as to design, assembly, installation, materials, workmanship or otherwise are to the maximum extent permitted by law,expressly excluded.
10.4 Any warranty in relation to any defect concerning the goods will not apply and is expressly excluded if the defect is due to or caused by:
10.4.1 the misapplication, abuse or (except where goods are installed by Soundcorp) improper installation of goods;
10.4.2 abnormal or extreme temperatures outside the operating range of goods, abnormal power source or power disturbance;
10.4.3 other abnormal conditions including the presence of dirt, water or corrosive materials;
10.4.4 the use or operation of goods above their rated capacity or in any other improper or unsuitable manner;
10.4.5 tampering with goods, other than by Soundcorp;
10.4.6 unauthorised modification of goods;
10.4.7 the unauthorised use of goods in conjunction with other equipment not supplied by Soundcorp for use with the goods;
10.4.8 damage during transportation of goods without fault on the part of Soundcorp; or
10.4.9 the Customer’s failure to ensure proper storage, operation and maintenance of goods.
10.5 To the extent permitted by law, Soundcorp is not liable and the Customer must indemnify Soundcorp in respect of all claims for physical or financial injury, loss or damage, or for consequential loss or damage of any kind arising out of the supply, layout, assembly, installation or operation of the goods or arising out of the Customer’s negligence or in any way whatsoever.
10.6 To the maximum extent permitted by law, Soundcorp makes no warranties or representation and the Customer releases Soundcorp from all liability for any loss, claim, damage or injury suffered in connection with the supply of the goods.
11 Customer Warranties
11.1 The Customer warrants and represents to Soundcorp that:
11.1.1 all information provided by the Customer to Soundcorp is true and correct, and not misleading in any way;
11.1.2 the execution and delivery of this contract has been duly and validly authorised by all necessary action on behalf of the Customer;
11.1.3 the Customer has full power and lawful authority to execute and deliver this contract and to perform or cause to be performed its obligations under this contract;
11.1.4 this contract constitutes a binding obligation of the Customer enforceable in accordance with its terms by appropriate legal remedy; and
11.1.5 the entry into and performance of this contract does not breach:
(a) any obligation (including any statutory, contractual or fiduciary obligation) of the Customer;
(b) any law; or
(c) the constitution (or any trust deed of the Customer).
(collectively, the “Customer’s Warranties”).
11.2 No merger
Each of the Customer’s Warranties will not be extinguished or affected by any investigation made by or on behalf of Soundcorp into the affairs of the Customer or any other event or matter except a specific and duly authorised written waiver or release by Soundcorp.
11.3 Warranties true
The Customer represents, warrants and undertakes to Soundcorp that the Customer Warranties are, and will continue up to be, true and correct in all material respects.
The Customer indemnifies Soundcorp in respect of any claim that Soundcorp pays, suffers, incurs or is liable for because any warranty or representation made or given by the Customer is untrue or inaccurate.
11.5 Separate promises
Each the Customer’s Warranties is a separate representation and warranty, the interpretation of which is not limited or restricted by any other of the Customer Warranty.
12.1 The Customer authorises Soundcorp to obtain credit reports from credit reporting agencies and trading information from references supplied, and to disclose trading information to other suppliers.
12.2 The Customer must pay or reimburse Soundcorp on request all reasonable costs (including legal costs and disbursements) incurred by Soundcorp in connection with the exercise, enforcement or preservation, or attempted exercise, enforcement or preservation, by Soundcorp of any rights or remedies under this contract, including without limitation any debt collection expenses incurred by Soundcorp.
12.3 A Customer that is a trustee is bound both personally and in its capacity as trustee.
12.4 Soundcorp may vary or replace these Terms from time to time on 30 days notice to the Customer. If the Customer continues to order goods from Soundcorp after receipt of the notice of variation, the Customer is deemed to have agreed to the variations.
12.5 No rule of contract interpretation must be applied in the interpretation of this contract to the disadvantage of one party on the basis that it prepared or put forward this contract or any document comprising part of this contract.
If you have any questions regarding any of the above Terms, please contact Soundcorp's office before purchasing any goods because when you place an order for goods, you will be bound by these Terms.