Terms and Conditions:
These terms and conditions apply to all goods and services supplied by SoundFix Acoustics Pty Ltd ACN 665 414 773 of Level 7/19 William St, Cremorne VIC 3121 (”Supplier”) to a customer (“Customer”) and, where a quotation is provided by the Supplier to a Customer, shall form part of that quotation and any order arising from acceptance of that quotation. If a quotation is accepted with variations these terms for part of the variation and a contract is not formed until the Supplier agrees to the variations in writing.
1. Sale and purchase
The Supplier sells to the Customer and the Customer buys from the Supplier its goods and services on these terms and conditions
2. Delivery and installation
The Supplier will deliver the goods to the address agreed by the parties. Quoted delivery dates are estimates and subject to confirmation prior to delivery. The Supplier may provide installation services, which may include without limit, initial designs, installation plans, labour for installation, access to quality contractors for property alteration elements and where required, complete project management, on dates and at locations as are more specifically defined and confirmed in the order.
Unless the Supplier has agreed to carry out the installation as part of the services contained in the order, the Customer is responsible for entering into contracts with any contractors directly for installation. The Supplier does not accept liability for problems arising during or from installation, including from the actions or inactions of any contractors engaged by the Customer.
3. Risk and title
The risk in the goods remains the Supplier’s until delivery of the goods to the Customer. The legal and equitable title in the goods will only pass to the Customer when all moneys owing by the Customer to the Supplier on any account whatsoever have been paid in full.
4. Return of the goods
The Customer must not return the goods to the Supplier unless the Supplier consents to the return of the goods in writing.
5. Price and payment
Pricing for goods and services is based on quoted prices from
the Supplier’s suppliers and as such, variations in price can occur. Where an increase in the cost of materials or labour occurs before or after acceptance of the quote, the Customer will be advised of such a price rise and be given the option to either accept the variations in writing and proceed or cancel the order without further costs other than those already incurred.
The Customer acknowledges that the amount stipulated on each quote the Supplier provides to it is an estimate only and may be subject to change if there is a change in the scope of work or quantity of materials required. The Supplier agrees to give the Customer reasonable notice of any such changes.
Unless otherwise stated all prices exclude all duties and taxes including GST payable in respect of the goods and services. The Customer agrees to pay all such duties and taxes and to reimburse the Supplier for payment of same.
Unless otherwise agreed in writing, payment terms are 50% at acceptance of quote, and 50% on completion of the install or in the instances of supply only the remining 50% payable immediately prior to delivery.
6. Customer’s responsibilities
The Customer is responsible for:
a) any additional costs arising from changes to the design or differences between the design and the structure;
b) ensuring that the Supplier has access to the site and to power and light on the dates required;
c) notifying the Supplier of any special considerations the site may have; and
d) ensuring the site is free of hazards, including without limit, animals and children.
7. Specifications and Samples
All samples, drawings, descriptive matter and specifications issued by the Supplier are issued for illustration only and do not form part of its quotation for the goods or services unless specifically referred to therein.
The Supplier will not be liable for any losses or damage, either directly or indirectly incurred by use of or in reliance upon such information or for any errors, omissions or inaccuracies in samples, drawings, descriptive matter and specifications which does not form part of its quote.
The Supplier will only comply with a specification or drawing where such specification or drawing is referred to in the quotation or has been produced to the Supplier prior to ordering the goods and signed by the Supplier. Otherwise the Supplier does not warrant or represent that the goods are fit for a particular purpose and the Customer agrees that it does not rely on the skill and judgment of the Supplier in relation to the suitability of the goods for a particular purpose. All such warranties are hereby excluded to the maximum extent permitted by law.
If applicable, the Supplier assigns to the Customer any warranty received from the original manufacturer of the goods so far as the Supplier is permitted to do so.
9. Limitation of Liability and Indemnity
To the extent permitted by law, the Supplier excludes all statutory or implied conditions and warranties and any other liability it has to the Customer (including liability for indirect or consequential loss) that may arise under statute or at law including without limitation for breach of contract, in tort (including negligence) or under any other cause of action
To the extent permitted by law, the Supplier limits its liability which cannot be legally excluded under all statutory or implied conditions and warranties and any other liability it has to the Customer (including liability for indirect or consequential loss) that may arise under statute or at law including without limitation for breach of contract, in tort (including negligence) or under any other cause of action, to whichever of the following the Supplier determines at its discretion:
a) supplying equivalent goods or services again; or
b) paying of the cost of acquiring equivalent goods or services again
The Customer must give the Supplier written notice of any claim it may have against the Supplier in connection with the goods or services the Supplier supplies to the Customer within 1 month of when it supplies them to the Customer failing which it will not be liable for that claim.
This clause 8 does not alter the Supplier’s liability for defective work under the provisions of any express warranty the Supplier provides to the Customer or under the Building Act 1993 (Vic) or the Australian Consumer Law which cannot be limited or excluded.
The Customer indemnifies the Supplier against all costs (including legal costs), expenses, damages, accounts or other losses or liability, including those arising from any actions, suits, proceedings, claims or demands, made against or suffered by the Customer, arising out of the Supplier supplying the goods or services in accordance with these Conditions or arising out of the Customer breaching any of the Customers obligations (which includes any negligent act or omission by the Customer or its agents) under these Conditions.
10. Force Majeure
Without prejudice to any other provision hereof the Supplier will not be liable for any failure to fulfil any terms of any agreement or inability to supply any goods or services if such fulfilment is delayed, hindered or prevented by any circumstances not within its direct control including without limiting the generality of the foregoing strikes or lock-outs, material shortages, its suppliers’ failure to supply, labour disputes, war, hostilities or the threat or apprehension thereof or compliance with any order or request of any competent government authority or department or court of law.
11. Default of Customer
The Customer agrees that if it fails to pay the Supplier the invoiced price of any goods and services by the due date for payment, then the Supplier:
a) has the immediate right to bring an action against the Customer for payment of the invoiced price of the goods and services, notwithstanding that ownership and property in the said goods and services shall not have passed to the Customer;
b) may refuse to supply any other goods and services to the Customer;
c) may claim the return of any goods in the possession of the Customer where title in the goods has not passed to the Customer;
d) may terminate the contract and/or suspend manufacture or delivery, installation, commissioning or testing of any goods then outstanding;
e) may retain any security given or money paid by the Customer or available through enforcement of guarantee or security bonds lodged and may apply such security or money against the loss and damages incurred by the failure of the Customer to pay;
f) may withdraw or vary any credit extended to the Customer without notice to the Customer;
g) may without notice make all moneys owing by the Customer to the Supplier on any account immediately due and payable;
h) may take such steps as it deems necessary to mitigate any damage suffered including the putting to use, hiring out, sale or disposal of any goods in its possession supplied or to be supplied to the Customer; and
i) may charge interest on overdue accounts at the rate not exceeding the standard overdraft rate offered by the Commonwealth Bank of Australia on the day of calculation.
11. Retention of Title
12.1 Defined terms used in this clause have the same meaning as given to them in the Personal Property Securities Act 2009 (Cwth,)(“PPSA”).
12.2 The Supplier and the Customer acknowledge that their contract constitutes a Security Agreement and gives rise to a Purchase Money Security Interest (PMSI) in favour of the Supplier over the goods supplied to the Customer, as Grantor, pursuant to their contract, and over the Proceeds (including any sale monies or an account for such monies and insurance monies).
12.3 The goods supplied or to be supplied under their contract fall within the PPSA classification of “other Goods” acquired by the Customer pursuant to these terms and conditions.
12.4 The Customer acknowledges that the Supplier, as Secured Party, is entitled to register its interest in the goods supplied or to be supplied to the Customer, as Grantor, under a contract on the PPSA Register as Collateral.
12.5 The Customer waives its right to any of the following under the PPSA:
a) receive notification of or a copy of any Verification Statement confirming registration of a Financing Statement or a Financing Change Statement relating to a Security Interest granted by the Customer, as Grantor, to the Supplier;
b) receive notice of removal of an Accession under section 95;
c) receive notice of an intention to seize Collateral under section 123;
d) receive notice of disposal of Collateral under section 130;
e) receive a Statement of Account if there is no disposal under section 130(4);
f) receive notice of retention of Collateral under section 135;
g) redeem the Collateral under section 142;
h) reinstate the Security Agreement under section 143;
i) object to the purchase of the Collateral by the Secured Party under section 129; and
j) receive a Statement of Account under section 132(3)(d) following a disposal showing the amounts paid to other Secured Parties and whether Security Interests held by other Secured Parties have been discharged.
12.6 The Customer agrees that, to the extent permitted by law, nothing in sections 130 to 143 of the PPSA will apply to, or the Security under, these terms and conditions.
12.7 The Customer must not do or permit anything to be done which may result in the purchase money security interest granted to the Supplier ranking in priority behind any other security interest.
12.8 Until the goods have been paid for in full, the Customer acknowledges that the goods are held by the Customer as Bailee for the Supplier and that a fiduciary relationship exists between the Supplier and the Customer in relation to the goods, which must be stored separately as a fiduciary of the Supplier in good condition and in such a way which clearly indicates the ownership of the Supplier in the goods.
12.9 While the Supplier retains title in the goods the Customer shall not bail, pledge, mortgage, charge, obtain or grant a lien over, lease or assign by any other way the goods or any security in the goods.
12.10 The Customer irrevocably authorizes the Supplier by its servants or agents to enter upon any site where the goods are located to take possession of the goods without any prior notice or for any purpose connected with or in relation to the protection or enforcement of the rights of the Supplier to the goods. The Supplier will not be liable for any damage caused or incurred as a result of the removal of the goods pursuant to this clause.
12.11 The Customer shall be liable for the payment of all costs, charges and expenses incurred by the Supplier on a full indemnity basis (including legal costs, repossession costs and the cost of any mercantile agent) in the recovery or attempted recovery of the goods or of payment of any moneys owing by the Customer to the Supplier or in the protection or enforcement of its rights in relation to the goods.
12.12 To secure payment of all moneys which may become payable by the Customer to the Supplier on any account whatsoever the Customer hereby charges with the due payment of all moneys payable by the Customer to the Supplier all of the Customer’s beneficial interests in freehold property held by it now or in the future as security for payment of money payable to the Supplier. The Customer consents to the Supplier lodging a caveat noting its interest in such property.
If the Customer disputes any charge appearing on an invoice, then the Customer shall give written notice of such dispute to the Supplier immediately upon receipt of invoice and shall pay all other charges not in dispute on the invoice pending an investigation of the dispute.
If the Customer comprises 2 or more people (whether natural, corporate or a combination of the two) any obligation imposed by these terms binds them jointly and each of them severally.
The Customer may not, without the Supplier’s consent, raise a set off or counterclaim available to it against the Supplier in reduction of the Customers liability under these terms;
A waiver by the Supplier of a default by the Customer under these terms will not constitute a waiver of another or continued default of the same nature or any other provision of these terms.
These terms embody the entire agreement and understanding between the parties concerning its subject matter, and succeeds and cancels all other agreements, understandings and representations concerning the subject matter of these terms.
No variation or cancellation of any of these terms and conditions are binding on the Supplier unless agreed in writing.
If any part of these terms and conditions are found to be void or unenforceable by any Court of competent jurisdiction, such part shall be severed from these terms and conditions which will otherwise remain in full force and effect.
These terms and conditions are governed by and interpreted according to the law of Victoria and the parties submit to the exclusive jurisdiction of the Victorian courts.
This document is embedded in SoundTech Acoustics Pty Ltd and or SoundFix Acoustics Pty Ltd Quote and Invoice. These Terms and Conditions become enforceable upon written acceptance of SoundTech Acoustics Pty Ltd ACN 657 686 792 or SoundFix Acoustics Pty Ltd Quote(s).