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Sound And Music TERMS AND CONDITIONS OF SALE
It is hereby agreed that the Goods are supplied to the Customer by the Supplier on the following terms and conditions;-
In this document, unless the contrary is apparent:- Agreement means these terms and conditions; Customer means the person(s), corporation, association or other entity purchasing the Goods from the Supplier; Delivery Docket means the docket provided to the Customer by the Supplier upon delivery of the Goods; Goods means all goods supplied by the Supplier to the Customer; Invoice means the invoice provided to the Customer by the Supplier for the Goods; Invoice Amount means the total amount due for the Goods as reflected on the Invoice; Outstanding Amount means all amounts due and payable to the Supplier by the Customer; Price means the amount due to the Supplier by the Customer for the Goods excluding (without limitation) all GST, delivery costs and packaging costs; Products means all products or new objects or materials made from the Goods, mixes of the Goods with other materials or where the Goods become part of other objects or materials; Quote means a written quote provided by the Supplier at the request of the Customer; Supplier means Audio Supermarket Pty Ltd (ABN 41 076 791 654) (“Trading as Sound And Music”) and its related entities and includes their successors in title and assigns.
2. CONTRACT OF SALE
Each supply of Goods by the Supplier to the Customer shall be a separate contract of sale on the terms and conditions set out in this Agreement. Each order for Goods made by the Customer (whether in writing or not) shall constitute an offer to purchase Goods at the then prevailing Price. The Supplier may, but is not obliged to, accept orders for Goods made by the Customer. Acceptance may be communicated to the Customer by written order confirmation or by such other means as the Supplier deems appropriate in the circumstances.
A Quote is valid for 14 days from the date of issue.
Prices of Goods may vary without notice and will be the Supplier’s current price for the Goods as at the date of delivery, except where a Quote has been provided. The Customer must pay the cost of delivery and any special packing and packaging materials used in relation to the Goods. Unless otherwise stated, Prices quoted by the Supplier are exclusive of GST, discounts and/or delivery charges. Unless otherwise agreed between the Supplier and Customer, an Invoice will be issued to the Customer after the Goods have been delivered to ensure that accurate delivery and packaging costs are invoiced.
The Customer must pay the Supplier the Invoice Amount within thirty (30) days of the date of the Invoice unless otherwise agreed in writing. Payment must be made either by cash, credit card or direct deposit or as otherwise specified by the Supplier. All credit card payments attract a 2% credit card surcharge. If the Customer fails to make payment of the Invoice Amount by the due date, the Customer:- agrees to pay interest on the Invoice Amount from the day the Invoice Amount was due at a rate 4% higher than the current penalty rate pursuant to the Penalty Interest Rates Act (Vic)1983 until the date of payment; and agrees to pay any costs and legal fees (on a full indemnity basis) incurred by the Supplier in connection with recovery of the Outstanding Amount. The Supplier may transfer or assign any amount owing to the Supplier by the Customer to any third party without the prior notification or approval of the Customer. The Supplier reserves the right, at any time and in its absolute discretion, to withdraw credit facilities or impose conditions on them. The Customer shall pay any moneys owing to the Supplier under these terms in full, and shall not set off such moneys against debts or liabilities owed or allegedly owed by the Supplier to the Customer.
The Supplier will deliver the Goods to the address specified in the Customer’s Credit Application or to an address otherwise agreed by the Supplier in writing. If the Customer requires the Goods to be supplied by a specific date, the Supplier will use its reasonable endeavours to comply with that request. The Supplier is not liable for any loss, damage or delay whether direct or indirect arising from late delivery or non-delivery of Goods. The Supplier may at its discretion deliver the Goods to the Customer in any number of instalments unless the Customer has specifically requested no instalment delivery of the Goods. If any of the Goods delivered by instalment are defective for any reason, the defective instalment shall be a severable breach and shall not constitute grounds for termination of the contract of sale in respect of the Goods. The Customer shall have no claim for shortage of any Goods delivered unless the Customer has lodged notice in respect of shortage with the Supplier within seven (7) days from the date of delivery of the Goods.
7. LOSS & DAMAGE IN TRANSIT
If the Customer uses the Supplier’s preferred delivery carrier, risk of loss or damage to the Goods passes to the Customer as and from the point the Goods are delivered to the Customer’s address and, subject to the terms of this agreement, all claims against the Supplier arising from any loss or damage after the Goods have been delivered are hereby waived. If the Customer uses their own delivery carrier, the Supplier is not responsible for any loss or damage to Goods in transit. Risk of loss or damage to the Goods passes to the Customer as and from the point of its departure from the Supplier’s premises and all claims against the Supplier arising from any loss or damage in transit are hereby waived.
8. RECEIPT OF GOODS
It is the absolute responsibility of the Customer to check all Goods upon receipt. Subject to the Competition and Consumer Act 2010 (Cth), the Fair Trading Act 2012 (Vic) or any other applicable consumer protection legislation, no claims in respect of the Goods will be accepted by the Supplier after the Goods have been signed for by the Customer (or its authorised company or agent) unless specific details of any damage have been noted on the Delivery Docket and such damage is acknowledged by the Supplier as being attributable to it or its agents. Any claims will be limited to the value of Goods supplied. Acceptance of the Goods by the Customer, waives any future rights to claims of damage against the Supplier to the maximum extent permitted by law.
9. EXCLUSION OF LIABILITY
Except as is provided herein, and to the maximum extent permitted by law, all express and implied warranties, guarantees and conditions under statute or general law in respect of the Goods are expressly excluded and the Supplier is not liable for injury, death, loss or damage of any kind to any person arising out of from or in connection with the supply or use of the Goods or in any way whatsoever.
10. WARRANTIES & GUARANTEES
Sound & Music – Limited 1 Year Warranty – Effective 1st January 2013
CONSUMER PRODUCT WARRANTY
When you purchase any Sound & Music distributed product, you have the peace of mind in knowing that your product is covered by the Sound & Music standard warranty. The Sound & Music standard warranty is provided by Audio Supermarket Pty Ltd, W25, 26-28 Roberna St, Moorabbin, Victoria 3189.
GENERAL WARRANTY TERMS AND CONDITIONS
10.1 The benefits given to you in the Sound & Music standard warranty are in addition to other rights and remedies you have under a law in relation to the products to which Sound & Music standard warranty relates. All Sound & Music products come with guarantees that cannot be excluded under the Australian Consumer Law. You are entitled to a replacement or refund for a major failure and for compensation for any other reasonably foreseeable loss or damage. You are also entitled to have the products repaired or replaced if the products fail to be of acceptable quality and the failure does not amount to a major failure.
10.2 Subject to section 1.1 and the terms below, as your standard warranty Sound & Music agrees to repair or replace at Sound & Music cost any Sound & Music product, and any accessory supplied with the product, purchased by you in Australia from a Sound & Music authorised dealer when the product does not perform in accordance with the manufacturer’s specifications during the warranty term specified for the product in the warranty table below, commencing from the date of purchase.
10.3 To make a claim under the standard warranty you will need to:
(a). Return the product, within the period of the warranty to the place of original purchase.
(b). Please note, you will need to submit proof of purchase (e.g. bill of sale, invoice or purchase receipt) with your claim.
10.4 Products presented for repair may be replaced by refurbished products of the same type rather than being repaired. Refurbished parts may be used to repair the products. Replacement of the product or a part does not extend or restart the Warranty Term.
10.5 If the product presented for repair is capable of retaining user-generated data, you are advised that repair of the product may result in loss of the data.
10.6 The product will be at the owner’s risk whilst in transit to and from all Sound & Music authorised service centres, unless transported by Sound & Music or its authorised representatives.
10.7 Sound & Music and its authorised service centres may seek reimbursement of any costs incurred by them when the product is found to be in good working order.
10.8 The cost of claiming under this warranty, including return of any product to Sound & Music is to be borne by the consumer.
GENERAL EXCLUSIONS AND LIMITATIONS
10.9. To the full extent permitted by law, but subject always to 10.1, the Standard Warranty will not apply:
10.10 If the product has not been installed, operated, maintained or used in accordance with the manufacturer’s instructions or specifications provided with the product.
10.11 If the factory-applied serial number has been altered or removed from the product.
10.12 To damage, malfunction or failure resulting from alterations, accident, misuse, abuse, fire, liquid spillage, misadjustment of customer controls, use on an incorrect voltage, power surges and dips, thunderstorm activity, acts of God, voltage supply problems, tampering or unauthorised repairs by any persons, use of defective or incompatible accessories, the operation of a computer virus of any kind, exposure to abnormally corrosive conditions or entry by any insect, vermin or foreign object in the product, modification, setups, adjustments or routine maintance of any kind, damages to finishes or cracks, splitting or warpage due to changes in temperature or humidity, exposure to or contact with sun, fire or chemicals of any kind.
10.13 To damage arising during transportation, installation or while moving the product, or to any transportation costs of the product or any parts thereof to and from the owner, unless otherwise specified in these warranty terms.
10.14 To any third-party software or hardware not contained in the product as originally configured by the manufacturer.
10.15 To any failure, to the extent that the failure is not a failure of the product to perform in accordance with its specifications.
10.16 Product that has been hired out.
10.17 To service of any product whilst it is outside Australia and New Zealand.
10.18 To the full extent permitted by law but subject always to section 10.1:
10.19 Sound & Music will not be liable for any loss, damage or alterations to (1) third party hardware or software; or (2) programs, data or information stored on any media or any part of the product, no matter how occurring; or for any loss or damage arising from loss of use, loss of profits or revenue, or for any resulting indirect or consequential loss or damage.
The Customer acknowledges to the Supplier that (except for the specific warranties and representations made by the Supplier in this Agreement) the Customer:- has entered into this Agreement relying entirely upon its own independent appraisal and assessment of the Goods; does not rely upon any warranty, statement or representation made or given by or on behalf of the Supplier; is fully aware of the contents of this Agreement; and to the maximum extent permitted by law waives any and all causes of action or rights the Customer may have against the Supplier touching or concerning the Goods or this Agreement and releases and indemnifies the Supplier from and against (as the case may be) any claim or liability (if any) arising out of or incidental to any such cause of action or right or any like cause of action or right of any person or entity whatsoever.
12. LIMITATION OF LIABILITY
To the maximum extent permitted by law, the Supplier’s liability for a breach of a guarantee, condition or warranty implied by law (including guarantees implied by the Australian Consumer Law (as set out in Schedule 2 to the Competition and Consumer Act 2010)) is hereby limited to the lowest of the following: the cost of replacing the Goods; the cost of obtaining equivalent goods; or the cost of having the Goods repaired. Further, the Supplier’s liability for any injury, death, loss or damage of any kind arising out of, from or in connection with the Goods having a safety defect (as that term is defined in the Australian Consumer Law) is limited to the compensation recoverable against the Supplier under the Australian Consumer Law and, in the case of death, the applicable State or Territory law.
13. RETENTION OF TITLE
Notwithstanding delivery of the Goods to the Customer, all right title and interest in the Goods remains with the Supplier until the Customer has made full payment to the Supplier of the Outstanding Amount. If the Goods are re-sold prior to payment to the Supplier of the Outstanding Amount, the Customer holds the proceeds from the sale of Goods on trust for the Supplier. Where the Customer has mixed or used the Goods and other materials to create Products, all right title and interest in the Products shall immediately pass to the Supplier until the Customer has made full payment to the Supplier of the Outstanding Amount.
The Customer shall keep the Goods or Products constructed from the Goods in a fiduciary capacity as bailee for the Supplier. The Supplier hereby grants a licence to the Customer to dispose of the Goods in the normal course of the Customers’ business. Until the date of full payment of the Outstanding Amount the Customer must store the Goods clearly identified as the property of the Supplier and if requested, must supply, within the time specified by the Supplier, an inventory of all Goods in the Customer’s possession. The Customer must allow any representative of the Supplier access to its premises to conduct any stocktake of its Goods without notice.
In the event of a default by the Customer in respect of any of the terms of this Agreement including the payment of any Outstanding Amount under this Agreement, the Supplier has the right (without giving notice) to retake possession of the Goods or Products and the Customer authorises the Supplier or its representative, servant, agent or employee to enter the Customer’s premises upon which the Goods are housed or stored for the purpose of retaking possession of same; and the Supplier is not liable for any cost, losses, damages, expenses or other monies incurred or lost by the Customer as a result directly or indirectly of the Supplier retaking possession of the Goods.
In the event the Supplier retakes possession of the Goods the Supplier is entitled to sell the Goods free of any claim from the Customer.
As security for the due performance of the Customer’s obligations under this Agreement, the Customer charges with the payment of all money which may be due to the Supplier, all of its property, fixed and movable, real and personal, both present and future and wherever it may be found.
For the purposes of this clause “PPSA” means the Personal Property Securities Act 2009 (Cth) and all regulations made under that Act. All references to sections are to sections of that Act.
(a) The Customer acknowledges and agrees with the Supplier that:
- (i) this Agreement constitutes a security agreement for the purposes of PPSA; and
- (ii) the Supplier may at its discretion register a financing statement in respect of any security interest created by this Agreement; and
- (iii) a security interest is taken in all Goods previously supplied by the Supplier to the Customer (if any) and all Goods that will be supplied in the future by the Supplier to the Customer during the continuation of the parties relationship.
(b) The Customer undertakes to:
- (i) sign any and all further documents and provide any and all further information, such information to be complete, accurate and up to date in all respects, which the Supplier may reasonably require to register a financing statement or a financing change statement on the Personal Property Securities Register established under the PPSA;
- (ii) indemnify and upon demand reimburse the Supplier for all expenses incurred in registering a financing statement or financing change statement on the Personal Property Securities Register or releasing any property charged thereby;
- (iii) not register a financing change statement or an amendment demand in relation to any security interest created by this Agreement without the prior written consent of the Supplier; and
- (iv) give the Supplier not less than fourteen (14) days prior written notice of any proposed changes in the Customer’s name or any other change in the Customer’s details.
(c) The Customer agrees that nothing in sections 130 or 143 of the PPSA will apply to this Agreement, or the security under this Agreement.
(d) The Customer waives its right to do any of the following:
- (i) receive notice of removal of an accession under s.95 of the PPSA;
- (ii) receive notice of an intention to seize collateral under s.123 of the PPSA;
- (iii) receive notice of disposal of collateral under s.130 of the PPSA;
- (iv) receive a statement of account if there is no disposal under s.130(4) of the PPSA;
- (v) receive notice of retention of collateral under s.135 of the PPSA;
- (vi) redeem the collateral under s.142 of the PPSA;
- (vii) reinstate the security agreement under s.143 of the PPSA;
- (viii) object to the purchase of the collateral by the secured party under s.129 of the PPSA; and
- (ix) receive a statement of account under s.132(3)(d) of the PPSA following a disposal showing the amounts paid to other secured parties and whether security interests held by other secured parties have been discharged.
(e) The Customer unconditionally ratifies any actions taken by the Supplier under this clause 0.
16. DEFECTIVE GOODS
If the Customer believes any of the Goods are defective the Customer must notify the Supplier in writing of the defect within 14 days of receipt of the Goods and return the defective Goods to the Supplier within a reasonable time. The Customer will be deemed to have accepted the Goods unless it notifies the Supplier otherwise in writing within 14 days of delivery of the Goods. If upon inspection of the defective Goods the Supplier is satisfied that the Goods are defective, then the Supplier may either replace the Goods or refund the Customer the Price of the Goods supplied.
17. CHANGE OF POSITION
The Customer must advise the Supplier of any change of controlling ownership, legal status or financial position within 7 days of the change occurring.
18. FORCE MAJEURE
If as a direct or indirect result of natural disaster, industrial dispute, accident, government restriction, war, civil disturbance or any other cause, of whatever nature, outside of the Supplier’s control the Supplier is unable to perform its obligations under this Agreement, the Supplier is released from those obligations to the extent of such inability, and the Customer shall not be entitled to claim compensation for any such failure by the Supplier to perform its obligations.
Failure by the Supplier to enforce any of these terms in respect of any breach by the Customer shall not be construed as a waiver of any of the Supplier’s rights or a waiver of the Supplier’s right to enforce the term in respect of that breach in the future. The only persons authorised to waive a breach by the Customer are the Managing Director or Chief Financial Officer of the Supplier and the Customer shall not seek to rely upon a waiver purportedly given on behalf of the Supplier by any other person.
20. GOVERNING LAW
These terms shall be governed by and construed in accordance with the laws in force in Victoria, Australia and the Customer submits to the jurisdiction of the courts of Victoria, Australia.
If any provision of this Agreement is contrary to any State or Federal legislation (for example by being illegal, void or unenforceable) that provision shall be read down to the extent necessary to become valid and enforceable or, if this is not possible, shall be deemed to be severed from this Agreement, without affecting the remaining provisions of this Agreement.
22. ASSIGNMENT AND NOVATION
Any rights and benefits arising from this Agreement must not be assigned by the Customer without the Supplier’s prior written consent. Subject only to notice being given to the Customer, the Customer consents to the assignment or novation of this Agreement by the Supplier.