By submitting a credit application and/or ordering goods or services from Factory Sound Sales Pty Ltd (ABN 51 067 110 098) (“Factory Sound”), the Customer agrees that the following terms and conditions of sale (“Conditions” or “Terms and Conditions of Sale”) will apply to the supply. 

1. DEFINITIONS AND INTERPRETATION 

In these conditions, and any other associated or collateral documents (unless a contrary intention is stated): 

“Anti-Corruption Law” means any law prohibiting or relating to bribery, corruption, kickbacks, secret commissions or money laundering; 

“Australian Consumer Law” means the Australian Consumer Law in the Competition and Consumer Act 2010 (Cth); 

“Consumer” means a consumer as defined in the Australian Consumer Law; 

“Consumer Contract” means a contract for the supply of goods or services to an individual whose acquisition of the goods or services is wholly or predominantly for personal, domestic or household use or consumption. However, if the relevant parts of the definition of ‘Consumer Contract’ under the Australian Consumer Law are amended at any time, this definition is also amended accordingly;

“Contract” has the meaning given to that term in clause 4; 

“Conditions” means the terms of these Conditions of Sale: 

“Customer” means a person (or its successor or assignee), firm or corporation seeking to acquire goods or services from the Supplier, and whose order for the purchase of goods or services is accepted by the Supplier;

“Factory Sound” means Factory Sound Sales Pty Ltd (ABN 51 067 110 098); 

“Force Majeure Event” means any event outside a party’s reasonable control including acts of God, declared or undeclared war, act of terrorism, fire, flood, storm, earthquake, hurricane, cyclone, riot, power failure, industrial action, pandemic, epidemic, change of law, defaults of manufacturers or suppliers, the inability to obtain equipment, supplies or other facilities that are not caused by a failure to pay, labour disputes, theft, any criminal act or other similar events beyond a party’s control that may prevent or delay a party from performing their obligations under any Contract; 

“Goods” means all goods supplied by the Supplier to the Customer; 

“Guarantor” means each of the persons who executes a credit agreement between the Customer and the Supplier as guarantor;

“Interest Rate” means the rate of 8% above the cash rate last published by the Reserve Bank of Australia (as at the due date); 

“Law” means any Commonwealth or Australian state or territory legislation regulations and the general law and includes in particular the Competition and Consumer Act 2010 (Cth) and regulations as amended from time to time and the PPSA and regulations as amended from time to time; 

“Personal Information” has the meaning given in the Privacy Act 1988 (Cth);

“PPSA” means the Personal Property Securities Act 2009 (Cth);

“Purchase Monies Securities Interest” or “PMSI” has the meaning given in section 14 of the PPSA as amended from time to time;

“Services” means any service supplied by the Supplier to the Customer.

“Small Business Contract” has the meaning given in the Australian Consumer Law;

“Supplier means Factory Sound Sales Pty Ltd (ABN 51 067 110 098) of 75 –85 York St, South Melbourne, Victoria.

2. INTERPRETATION 
   1. The headings used do not form part of the Conditions and are for convenience only.
   2. Where the context admits or requires words importing the singular number will include the plural number, those denoting a given gender will include all other genders and those denoting natural persons will include corporations.
   3. “Including” is not a term of limitation.

3. APPLICATION OF THE CONDITIONS
   1. Unless otherwise agreed in writing, the Conditions (and the application completed by the Customer, together with any guarantee/s) will apply exclusively to every contract for the sale of goods by the Supplier to the Customer and cannot be varied or supplanted by any other conditions without the prior written consent of the Supplier.
   2. Any written quotation provided by the Supplier to the Customer concerning the proposed supply of goods is valid for 30 days, unless otherwise stated in the quotation, and is an invitation only to the Customer to place an order based upon that quotation. The quotation may include additional terms which are not inconsistent with the Conditions.
   3. The Customer will comply with the procedure (if any) prescribed by the Supplier for the placing of orders.
   4. The Supplier will not be deemed to have accepted an order by the customer unless it has confirmed its acceptance to the Customer in writing or has delivered the goods stated in the order.
   5. In the event of any conflict between these Terms and Conditions of Sale and any other agreement, terms, conditions or understandings that may be applicable, these Terms and Conditions of Sale shall take precedence unless otherwise stated in writing. 

4. CONTRACTS AND QUOTES     
   1. The contract between the Customer and the Supplier is constituted by: 

1. the Conditions; 
2. the terms of any credit agreement between the Customer and the Supplier (“Credit Terms”); and 
3. the extent to which the Supplier accepts an order. 

(Collectively, the Contract)

3. The Conditions, the Credit Terms and the extent to which the Supplier accepts the order govern all contracts for the supply of goods and/or services by the Supplier to the Customer and constitute the entire agreement in connection with the supply of goods and/or services between the Supplier and the Customer. All prior representations, trade custom or previous dealings between the Supplier and the Customer are excluded and are not applicable in the interpretation of the Contract. No modification or variation to the Conditions or the Credit Terms, any additional terms or conditions or any terms inconsistent with the Conditions or the Credit Terms provided by the Customer (whether put forward in the order, the Customer’s specification or otherwise) will bind the Supplier, unless expressly and specifically agreed to in writing by the Supplier. The Conditions and the Credit Terms supersede any terms and conditions which have previously governed a contract for the sale of goods or services by the Supplier to the Customer. The Conditions and Credit Terms will prevail to the extent of any inconsistency between them and any quotation, order or other documents from the Customer. The Conditions and Credit Terms bind the Customer even if the Supplier or the Customer does not sign them promptly or at all.
4. A quotation will not constitute an offer to sell goods or services to the Customer. No contract for the supply of goods or services will exist between the Supplier and the Customer until a Customer’s order for goods or services has been accepted by the Supplier (such acceptance of the Customer’s orders may be made and communicated by the Supplier in writing or by overt act of acceptance and acceptance may be made without notification to the Customer). If only part of an order is accepted, the Supplier will notify the Customer of this. The Customer is deemed to have agreed to only part of the order being accepted unless written notice is received by the Supplier that the Customer wishes to cancel the whole order within 1 business day of the date of issue of the Supplier’s notice. The Customer will be under no obligation to place an order with the Supplier. The Supplier may accept or refuse any order for goods or services in its absolute discretion and may make its acceptance of an order conditional upon it receiving a satisfactory credit assessment of the Customer. 
5. The Customer is liable for all purchases made under its account number and/or account name. It is not the responsibility of the Supplier to confirm authority for the purposes of supplying goods or services to the Customer, its agent(s) or those who the Supplier deems to be its agents. It is the sole responsibility of the Customer to ensure there is no unauthorised use of their account number or name. Any person purporting to act on behalf of the account holder represents to the Supplier that they are duly authorised to be the Customer’s agent and/or representative. 
6. In the event that the Customer supplies incorrect payment and delivery details, the Supplier will take reasonable steps to contact the Customer using the personal details that the Customer has provided. In the event that the Customer has supplied incorrect contact details, the Supplier does not accept responsibility for the inability to fulfil the Customer’s  order, or for not being able to advise the Customer that this is the case. 
7. The Supplier may vary the Conditions or Credit Terms by notice in writing to the Customer. If the Contract is a Consumer Contract or a Small Business Contract, then the Customer may consider the variation and, if not acceptable, may elect not to proceed with the purchase of the goods or services ordered before the date of the variation but which are intended to be subject to the variation. If the Contract is not a Consumer Contract or a Small Business Contract, the Customer agrees that goods delivered, and services performed and/or ordered after the date of the notice of the variation will be subject to the variation and acceptance of the goods or services or the placing of the order will be deemed to be an acceptance of such varied terms and conditions.
8. Should there be any variation to any of the information supplied by the Customer to the Supplier in any credit application or there has been a change of control of the Customer or in the structure or nature of the Customer’s business (such as a conversion to or from a company or trust) the Customer will notify the Supplier in writing within 28 days of the variation occurring. 
9. The Conditions and all obligations under any Contract will be binding on the Customer’s personal representatives, successors and permitted assigns and will be for the benefit of the Supplier’s successors and assigns. 

5. PRICING/PAYMENT 
   1. A minimum value of $10.00 AUD applies to all of the Supplier’s internet orders.
   2. Subject to these Conditions, the amount payable for goods and services will be the agreed price at the time of acceptance of the Customer’s order by the Supplier. The price is exclusive of any freight charges, payment surcharges, customs duty and GST or similar taxes, which the Customer will pay in addition to the price at the same time and in the same manner as the price. 
   3. Except where expressly agreed otherwise, at any time prior to delivery, the Supplier may, upon giving the Customer not less than 5 days prior written notice (which the Customer agrees may be given by electronic direct mail), vary the prices specified on the Supplier’s quotation, order confirmation or invoice (as applicable) to reflect the Supplier’s new updated prices. The Customer may consider such price variation and, if it is not acceptable, may elect by written notice to the Supplier within 5 days of receipt of the written notice of the variation, not to proceed with the purchase of the goods and/or services affected by the price variation. If no such written notice is received by the Supplier during the relevant 5 days, the Customer is deemed to accept the relevant price variation(s). The Supplier may at its discretion pause or suspend orders impacted by price variation under this clause until the Supplier has received confirmation from the Customer that the price variation is accepted by the Customer or the requisite 5 days have passed. The Supplier shall not be liable to the Customer for any delays such pause or suspension may have on the Customer.
   4. Any variations in the invoice or contract price as a consequence of currency fluctuations, taxes, customs duty or other imposts will be to the Customer’s account. Any such price change will only be applicable to Customer orders not yet accepted by the Supplier, provided the Customer is given 5 days prior notice of the price change.
   5. The Customer must not assert any right of set off against the Supplier and will pay all amounts owing to the Supplier without deduction.
   6. Where credit is extended to the Customer, all account invoices and statements will be submitted by the Supplier electronically (“E-invoice”) to the Customer via the Customer’s nominated email address. 
   7. The Supplier will not, generally, send a paper copy of the invoice or statement unless the Customer requests it. The Customer can obtain a paper copy of the invoice or statement by sending a written request to the Supplier. The Customer acknowledges that the Supplier will charge a $5 service fee for the delivery of paper copies of invoices or statements (“Service Fee”) and agrees to pay such fee on demand. The Supplier may vary the Service Fee to reflect changes in administration costs from time to time by written notice to the Customer.
   8. Where the Supplier submits an E-invoice to the Customer’s nominated email address, the E-invoice will be deemed to have been received by the Customer on the date it was sent unless the Supplier receives a notification that the email did not reach its intended recipient and the records of the Supplier will be conclusive in this regard.
   9. It is the Customer’s responsibility to ensure that the contact information provided to the Supplier is current and accurate including the Customer’s nominated email address, which the Supplier will use to submit the E-invoice. The Customer agrees to promptly notify the Supplier of any changes to the Customer’s contact information.
   10. Unless otherwise agreed to by the Supplier, payment for goods can be made via the Supplier’s secure checkout pages on their website using Visa, MasterCard or PayPal. Card charges will appear on statements as “Factory Sound Sales P/L”. 
   11. Any credit card payment will be processed at the time of order placement. In the event of any supply issues, the payment method will be refunded as swiftly as possible. The Customer acknowledges that it may take a day or two for the refund to show as cleared funds in the Customer’s account, depending on the payment provider. 
   12. In cases where part of an order cannot be immediately fulfilled, the Supplier will dispatch the available items as soon as possible. If any part of the Customer’s order cannot be fulfilled at all, the Supplier will promptly notify the Customer  via email or telephone details provided by the Customer. All products with a limited sales period displayed in the Supplier’s online shop will have the end date clearly shown.
   13. In the event that a product does not have a specified sales period and becomes unavailable due to unexpected or high demand, and that item is ordered by the Customer before the Supplier has withdrawn that item from the Supplier’s online shop, the Supplier will not be held responsible for any inability to complete that order. The Supplier will, however, assist the Customer in finding suitable alternatives or processing a refund under Australian Consumer Law.
   14. Items marked as ‘special order items’ will be ordered especially for the Customer. Once the order has been placed with the Supplier’s relevant supplier, the Customer’s order cannot be cancelled, nor can any refund be made for change your mind. 
   15. If a supplier invoice is provided, payment for goods must be made within the number of days or date specified on the invoice.
   16. The Supplier may withdraw any credit terms or require the provision of security at any time in its sole and absolute discretion without the requirement to give reasons or act in good faith. 

6. DEFAULT 
   1. Events of default:

1. there is any default or failure by the Customer in making a payment to the Supplier; or 
2. the Customer fails to take delivery of the goods; or 
3. an administrator, restructuring practitioner, liquidator or provisional liquidator or external manager is appointed in respect of the Customer; or 
4. a receiver, receiver and manager, administrator or controller is appointed in respect of any assets or group of assets of the Customer; or 
5. the Customer goes into bankruptcy or is wound up; or
6. the Customer becomes, admits in writing that it is, or is declared by a court to be unable to pay its debts as and when they fall due; or
7. subject to clause 6.1(a), there is a material breach by the Customer of the Contract or any other agreement between the Customer and the Supplier or any other Factory Sound Member,

then: 

1. all monies payable by the Customer to the Supplier may, at the Supplier’s election, become immediately due and payable notwithstanding the due date for payment will not have expired; and
   
2. the Supplier and any Factory Sound Member may, without prejudice to any other rights it may have, do any or all of the following:
   1. suspend or withdraw any credit facilities which may have been extended to the Customer; 
   2. immediately terminate or suspend the whole or any outstanding part of any Contract; 
   3. withhold any further delivery of goods or performance of services; 
   4. in respect of goods already delivered, and which title has not yet passed to the Customer, require the Customer to return the goods to it on demand or enter onto the Customer’s premises to recover and resell the goods for its own benefit; 
   5. recover from the Customer the cost incurred by the Supplier for materials or goods acquired for the purpose of future deliveries of goods or the performance of services which the Supplier will not otherwise be able to recover from refunds or future sale to other customers; 
   6. exercise such rights as are afforded to the Supplier under the PPSA; and 
   7. register a default with any credit reference facility. 
3. If the Contract is a Consumer Contract or Small Business Contract and either: 

1. an administrator, liquidator, provisional liquidator or external manager is appointed in respect of the Supplier; 
2. a receiver, receiver and manager, administrator or controller is appointed in respect of any assets or group of assets of the Supplier; or 
3. the Supplier commits a breach of a material term of the Contract which is not rectified within 5 days of such breach,
4. the Customer may immediately terminate or suspend the whole or any outstanding part of any Contract.
5. If the Customer defaults in payment by the due date of any amount payable by the Customer to the Supplier, the amount outstanding becomes immediately due and payable without the requirement of any notice to the Customer, and the Supplier may, without prejudice to any other remedy available to it:
   1. Initiate a direct debit payment from the Customer’s designated bank account for any outstanding amounts. The Supplier is authorised to take payment directly from the Customer’s account using the direct debit process (as per Annexure B), which will include any applicable interest and costs associated with the overdue payment. 
   2. Charge the Customer interest on any sum due at the prevailing rate pursuant to the Penalty Interest Rates Act 1983 plus monthly 2 percent for the period from the due date until the date of payment in full;
   3. Charge the Customer for all expenses and costs (including legal costs) incurred by the Supplier resulting from the default and in taking whatever action it deems appropriate to recover any sum due;
   4. cease or suspend for such period as the Supplier thinks fit, supply of any further goods to the Customer without additional notice; 
   5. by notice in writing to the Customer, terminate any contract with the Customer so far as unperformed by the Supplier, without effect on the accrued rights of the Supplier under any contract; 
   6. where the Customer is an individual and becomes bankrupt or enters into any scheme of arrangement or any assignment or composition with or for the benefit of his or her creditors or any class of his or her creditors generally; or
   7. where the Customer is a corporation and, it enters into any scheme of arrangement or any assignment or composition with or for the benefit of its creditors or any class of its creditors generally, or has a liquidator, administrator, receiver or receiver and manager appointed, or any action is taken for, or with the view to, the liquidation (including provisional liquidation), winding up or dissolution without winding up of the Customer.
   8. In the event of a dispute, the Customer will not be entitled to withhold payment of any undisputed amount due to the Supplier. 

7. CREDIT ASSESSMENT 
   1. The Supplier reserves the right to conduct credit checks on the Customer at any time, either prior to, or during the term of the agreement. By placing an order, the Customer consents to the Supplier obtaining and using the Customer’s credit history from any credit reporting agency for the purposes of assessing the Customer’s creditworthiness. 
   2. The Supplier may, impose credit limits or modify the payment terms based on the results of such assessments. If the Supplier determines the Customer is at risk of default or is financially unstable, the Supplier may, at its discretion, refuse to accept further orders or require advance payment or other forms of security. The Customer acknowledges that credit assessments are part of the Supplier’s risk management practices and agrees to cooperate with the Supplier’s reasonable requests for information. 
   3. If the Supplier requires payment in advance or imposes stricter payment terms due to the results of the credit check, the Supplier will notify the Customer in writing. The Supplier is under no obligation to continue extending credit under the terms initially agreed upon.
   4. The Customer acknowledges receiving the Credit Reporting Policy at Annexure C and the Privacy Policy at Annexure D. 

8. PROPERTY AND RISK 
   1. Risk in the goods ordered by the Customer will pass to the Customer as soon as they are collected from the Supplier’s premises or delivered by the Supplier to the Customer’s nominated delivery location or to the Customer’s agent.
   2. Until full payment in cleared funds is received by the Supplier for all goods supplied by it to the Customer, as well as all other amounts owing to the Supplier by the Customer:- 

1. title of property in all goods remain vested in the Supplier and do not pass to the Customer;
2. the Customer must hold the goods at its risk and as fiduciary bailee and agent for the Supplier;
3. the Customer must keep the goods separate from its goods and maintain the labelling and packaging of the Supplier;
4. the Customer is required to hold the proceeds of any sale of the goods on trust for the Supplier in a separate account;
5. The Customer must deliver up all goods to the Supplier immediately upon service of a written demand;
6. The Customer acknowledges that the Supplier may register a security interest in the goods pursuant to the Personal Property Securities Act 2009 (Cth);
7. the Supplier may without notice, enter any premises where it suspects the goods may be and remove them, notwithstanding that they may have been attached to other goods not the property of the Supplier, and for this purpose the Customer irrevocably licences the Supplier to enter such premises and also indemnifies the Supplier from and against all costs, claims, demands or actions by any party arising from such action.

9. PRICE
   1. Prices charged for the Goods will be the price listed on the Supplier’s online store website at the time of purchase or the price agreed between the parties.
   2. Prices of the supply of goods exclude the cost of freight, insurance and other charges arising from the point of dispatch of the goods to the Customer or to the point of delivery.
   3. Where there is any change in the costs incurred by the Supplier in relation to the goods, the Supplier may vary its price for goods in order to take account of any such change.

10. DELIVERY OF THE GOODS
    1. Any period or date for delivery of goods stated by the Supplier is intended as an estimate only and is not a contractual commitment. The Supplier will use its reasonable endeavours to meet any estimated dates for delivery of the goods.
    2. The Customer will pay to the Supplier packing, crating and delivery charges in accordance with the Supplier’s current rates as at the date of dispatch. If there is no current rate, then a reasonable delivery charge will be paid by the Customer. 
    3. If the Customer is unable to or fails to accept delivery of the goods, the Customer will be liable for all costs incurred by the Supplier due to storage, detention, double cartage, travel expenses or similar causes. 
    4. The Supplier reserves the right to charge the Customer a reasonable fee for storage if delivery instructions are not provided by the Customer within 14 days of a request by the Supplier for such information.
    5. The Customer authorises the Supplier to deliver goods to the place nominated by the Customer and to leave the goods at such place whether or not any person is present to accept delivery. Subject to the other terms of the Contract, the Supplier will not be liable on any basis whatsoever for loss suffered by the Customer after delivery to the nominated delivery place. 
    6. The Supplier will not be obliged to obtain a signed receipt or other acknowledgment from any person at the nominated place for delivery but if a signed receipt or other acknowledgment is obtained from someone believed by the Supplier to be authorised by the Customer to sign or otherwise take delivery, then such signed receipt or other acknowledgement will be conclusive evidence of the Customer’s acceptance of the goods delivered.
    7. Any times quoted for delivery are estimates only and the Supplier will not be liable to the Customer for any failure to deliver or for delay in delivery of goods or performance of services occasioned by any cause whatsoever whether or not beyond the control of the Supplier provided such goods are delivered and services performed (as applicable) within a reasonable time. 
    8. Provided delivery or performance (as applicable) is made within a reasonable time, the Customer will not be relieved of any obligation to accept or pay for goods or services by reason of any delay in delivery or performance.
    9. The Supplier reserves the right to deliver goods by instalments and each instalment will be deemed to be sold under a separate Contract. Failure to deliver any instalment, or deliver any instalment on time, will not entitle the Customer to repudiate the Contract in whole or in part.
    10. The Supplier will deliver goods to a ground floor location only at a nominated delivery place that is safely accessible from a location where the delivery vehicle can park (without incurring a parking charge or otherwise). This includes smooth, stable ground that can be safely traversed with a trolley or walked to with an unobstructed view. Failure to nominate such a delivery place within a reasonable time may result in delivery delays, return of the goods to the Supplier’s premises (at the Customer’s cost), the Supplier declining delivery and requiring Customer pick up from the Supplier’s premises or additional delivery charges. 
    11. The Supplier can and will only supply to individuals, companies, schools, government departments, bands, houses of worship, etc within Australia. No overseas orders are permissible, nor will such orders be processed. 
    12. The Supplier does not engage in the processing, shipping, or handling of international orders. As a result, the Supplier will not be responsible for any costs or liabilities incurred by customers who attempt to place international orders. These potential costs may include, but are not limited to, customs duties, taxes, currency conversion fees, and any other expenses associated with international transactions. 

11. PROPERTY, RISK AND INSURANCE
    1. All risk in the goods and all insurance responsibility for theft, damage or otherwise in respect of the goods will pass to the Customer immediately upon delivery of the goods to the Customer irrespective of when payment is made.
    2. The Customer will insure the goods against theft or any damage until such goods have been paid for or until they are sold by the Customer whichever occurs first and the Supplier will be entitled to call for details of the insurance policy. Excluding Consumer Contracts and Small Business Contacts, if the Customer does not insure the goods or fails to supply details of its insurance policy, the Customer will reimburse the Supplier for the cost of any insurance which the Supplier may reasonably arrange in respect of the goods supplied to the Customer.

12. RESALE OF GOODS
    1. Unless the Supplier has otherwise agreed in writing, the Customer may not resell the Goods to any third party except as part of services the Customer provides on a time and materials basis and not a wholesale, distributor or large scale vendor. 
    2. If the Customer resells Goods or Services, then the Customer and/or their agents, contractors, employees and representatives must:
       1. provide to the purchaser any instructions or information about the use or care of the Goods or services, information about repairs and any express warranties intended for the purchaser which are provided by the Supplier to the Customer for the purpose of being provided to the purchaser;
       2. not make any statement or representation about the goods or services which is not consistent with information provided by the Supplier or make any representation on behalf of the Supplier;
       3. not make any false, misleading or deceptive statements, or any statement that is likely to mislead or deceive, about the Goods, services or the Supplier;
       4. if the Customer and/or their agents, contractors, employees and representatives also provide related installation or other services,  the Customer must perform those services in accordance with any instructions and guidelines provided by the Supplier;
       5. promptly notify the Supplier of any claims that the Goods or Services do not comply with the mandatory guarantees under the Australian Consumer Law or which involve safety issues or serious injury or death, and then co-operate with the Supplier in relation to the handling of those claims;
       6. comply with your obligations under the Australian Consumer Law in relation to mandatory guarantees; and
       7. not tamper with, alter, obscure or remove any trademarks which appear on the Goods or alter the labels or packaging in which they are intended to be offered to purchasers.
    3. The Customer indemnifies the Supplier against all liability, loss, costs, damages or expense (including legal costs and expenses) incurred or suffered by the Supplier on a full compensation basis to the extent that it arises from a breach of this clause by the Customer and/or their contractors.

13. RETURNS AND CREDITS
    1. If the Customer is a Consumer, the provisions of this clause 13 applies:
       1. To the fullest extent permitted by law, the Customer shall not return goods to the Supplier without the prior written approval of the Supplier.
       2. All goods approved for return shall be in the original packaging and in an undamaged, re-saleable condition accompanied by a delivery docket stating the original invoice number of the Supplier, the date of purchase and the reason for the return. 
       3. The proof of purchase from the Customer must accompany all goods returned to the Supplier. 
       4. All goods returned may be subject to a minimum 25% restocking fee at the discretion of the Supplier. 
       5. Goods adjusted to Customer’s requirements will not be accepted back for credit. If the Customer believes the goods or services do not comply with the statutory guarantees, they must contact the Supplier and the parties may make arrangements for the return of the goods. 
       6. If the Supplier agrees that the goods or services do not comply with the statutory guarantee the Supplier will refund the costs of returning the goods to the Supplier and, in all other respects, act in accordance with its obligations under the Australian Consumer Law. 
       7. Subject to the guarantees given by the Supplier under the Australian Consumer Law, if the Customer believes the goods or services do not comply with the statutory guarantees, they must contact the Supplier and the parties may make arrangements for the return of the goods. Any returned goods must be accompanied by proof of purchase. If the Supplier agrees that the goods or services do not comply with the statutory guarantee the Supplier will refund the costs of returning the goods to the Supplier and, in all other respects, act in accordance with its obligations under the Australian Consumer Law.

14. PERSONAL PROPERTY SECURITIES ACT
    1. The Customer agrees that the Conditions may create a PMSI in the goods (and their proceeds) supplied presently and in the future by the Supplier to the Customer and a security interest in the personal property of the Customer. 
    2. The Customer agrees to do all things necessary and execute all documents reasonably required to register the security interests granted by the Customer under the Conditions and to ensure that the Supplier acquires perfected security interests under the PPSA. 
    3. The Customer will, upon demand, pay all of the Supplier’s expenses and legal costs on the indemnity basis in relation to or in connection with the registration of the Supplier’s security interests and all other costs associated with protection and enforcement of the Supplier’s security interests created by the Conditions or by undertaking an audit under the provisions of the PPSA which the Supplier considers reasonably necessary in order to protect its legitimate interests under the Contract, or the repossession of the goods the subject of the Conditions or the exercise, enforcement or preservation of any right or interest under the Conditions or any contract that the Supplier has with the Customer. 
    4. This PMSI does not lose its priority as a result of the renewal, refinance, consolidation or restructure of the subject matter of the Conditions and any purchase money obligations. 
    5. The Customer waives its rights under the following provisions of the PPSA, to the extent that it is permitted by Law to:
       1. receive a notice of intention of removal of an accession (s95);      
       2. receive a notice that the Supplier has determined to enforce its security interest in accordance with land law (s118); 
       3. receive a notice of enforcement action against liquid assets (s121(4));
       4. receive a notice of disposal of goods by the Supplier purchasing the goods (s129).
       5. receive a notice to dispose of the goods (s130); 
       6. receive a statement of account following disposal of the goods (s132(2)); 
       7. receive a statement of account if no disposal of the goods, six monthly (s132(4)); 
       8. receive notice of any proposal by the Supplier to retain the goods (s135(2));
       9. object to any proposal by the Supplier to either retain and dispose of the goods (s137(2)); 
       10. redeem the goods (s142); 
       11. reinstate the security agreement (s143); and 
       12. receive a notice of any verification statement (s157(1) and 157(3)). 
    6. To the extent permitted by the PPSA, the Conditions exclude any provisions of the PPSA which may be excluded in the Supplier’s discretion and which would otherwise confer rights on the Customer. 
    7. The Customer further agrees that where the Supplier has rights in addition to those under Parts 2.2 and 4 of the PPSA, those rights will continue to apply. 
    8. The Customer’s right to possession of goods still owned by the Supplier under the Conditions will cease if:
       1. where the Customer is an individual, the Customer commits an act of bankruptcy; 
       2. where the Customer is a company, circumstances arise where a receiver, manager, administrator or controller becomes entitled to take possession of any of the Customer’s assets, any proceedings are instituted for winding up of the Customer or the Customer enters into a Deed of Company Arrangement; 
       3. the Customer ceases or threatens to cease conducting business in the normal manner or applies for deregistration or receives a deregistration notice;
       4. any cheque the Customer provides to the Supplier or any Factory Sound Member is dishonoured for payment; 
       5. the Customer fails to comply with any demand for payment issued by the Supplier or any Factory Sound Member for an amount which is overdue under the Contract; or
       6. the Customer materially breaches any of the Conditions and/or any other agreement between the Supplier or any other Factory Sound Member and the Customer. 
    9. The Customer expressly and irrevocably agrees that, until such time as title in the goods passes to the Customer, the Supplier may require the Customer to return the goods to it on demand and is entitled to enter any premises where the goods supplied by the Supplier are located to repossess, remove and sell such goods. The Customer (its successors and assigns, including any external manager or administrator) will not object to the Supplier, or its agents, entering any premises for the purpose of this clause and agrees to indemnify and keep the Supplier indemnified in respect of any claims, actions and costs that may arise against the Supplier in relation to the removal, repossession and sale of the goods pursuant to the Conditions including any claims brought by third parties.
    10. The Customer agrees that repossession and retention of the goods pursuant to the PPSA will only satisfy so much of the monies which may become payable to the Supplier by the Customer as is equivalent to the Supplier’s estimation of the market value of the goods as it is at the date of repossession and the repossession and retention will immediately extinguish any rights for interest the Supplier has on the value of the goods recovered. 
    11. Until ownership of the goods passes, the Customer must not give the Supplier a written demand or allow any other person to give the Supplier a written demand requiring the Supplier to register a financing change statement under the PPSA or enter into or allow any other person to enter into the personal property securities register a financing change statement under the PPSA. 
    12. The Customer agrees not to change the Customer name or undertake any changes to any documents that the Supplier has registered, requires to be registered or are capable of being registered without the prior written consent of the Supplier. 

15. WARRANTY
    1. All goods supplied shall be free from defect in materials and workmanship for a period specified by the Supplier, from the date of delivery.  The warranty does not apply in circumstances where:
       1. the goods are not defective;
       2. the goods were used for a purpose other than for which they were intended;
       3. the goods were repaired, modified or altered by any person unauthorised by the Supplier;
       4. the defect has arisen due to misuse, neglect or accident;
       5. the defect has arisen due to the incorrect installation of the goods; 
       6. the defect has arisen due to normal wear and tear of the goods;
       7. the goods have not been stored or maintained as recommended by the Supplier; or
       8. the Customer is in breach of the Conditions.

16. LIABILITY

16.1 The Supplier will not be liable for any loss or damage suffered by the Customer where the Supplier has failed to meet any delivery date or cancels or suspends the supply of goods.

17. FORCE MAJURE EVENT 

1. A party is not liable for any failure to observe its obligations under this Contract where such failure is wholly or substantially due to a Force Majeure Event provided that the party seeking to rely on the benefit of this clause:
   1. as soon as reasonably practicable, notifies the other party of the extent to which it is unable to perform its obligations; and 
   2. uses its best endeavours to mitigate the adverse effects of the Force Majeure Event and perform its obligations under this Contract as quickly as possible. 
2. Where the Force Majeure Event prevents a party from performing a material obligation under this Contract for a period in excess of 60 days, then the other party may by written notice terminate this Contract and/or any purchase order, which will be effective immediately, unless otherwise stated in the notice.
3. GST
   1. Any expression used in this clause which is defined in the “A New Tax System, (Goods and Services Tax) Act 1999” has the same meaning in this clause 18.
   2. With the exception of any amount payable under this clause 18, unless otherwise expressly stated, all amounts stated to be payable by the Customer under any Contract are exclusive of GST. The Supplier will issue a compliant tax invoice with any order. 
   3. If GST is imposed on any supply made under or in accordance with any Contract, the recipient of the taxable supply must pay to the Supplier an additional amount equal to the GST payable on or for the taxable supply. Payment of the additional amount will be made at the same time as payment for the taxable supply is required to be made in accordance with the Contract, subject to the provision of a tax invoice by the supplier to the recipient.

19. INDEMNITY

1. If the Customer defaults in the performance or observance of its obligations under any Contract of which these Conditions form part, then:
   1. the Supplier will give the Customer notice of such default and request that the Customer remedies any breach within the time stipulated in these Conditions or, if no time is stipulated, a reasonable time; and 
   2. if that breach is not remedied within the time stipulated in the notice, then the Customer will indemnify the Supplier in respect of loss, damage, costs (including collection costs, bank dishonour fees, and legal costs on an indemnity basis) that the Supplier has suffered arising therefrom. 
2. The Customer’s liability to indemnify the Supplier under a provision of the Contract (including these Conditions) will be reduced proportionally to the extent that any fraud, negligence, or wilful misconduct by the Supplier or a breach of the Supplier’s obligations under the Contract or the Supplier’s breach of Law has contributed to the claim, loss, damage, or cost which is the subject of the indemnity. 
3. Each indemnity in a Contract is a continuing obligation separate and independent from the Customer’s other obligations and survives the termination or performance of any Contract of which these Conditions form part. 
4. For each indemnity in a Contract, the Supplier will take steps to mitigate its loss and damage and act reasonably in relation to the applicable default by the Customer.
5. To the extent permitted by law, neither the Customer or Supplier are liable to the other for:
   1. any loss, cost, damage or expense to the extent that it is for indirect, special, economic or consequential loss, where consequential loss means any loss, cost, damage or expense beyond the normal measure and beyond that which every plaintiff in a like situation would suffer; and 
   2. any loss of revenue, business or profits of any nature whatsoever, loss of expected savings, loss of chance or business opportunity, business interruption, loss or reduction of goodwill or damage to reputation or any loss of value of intellectual property.  

20. SEVERANCE

20.1 In the event that the whole or any part or parts of any provisions in any Contract should be held to be void or unenforceable in whole or in part, such provision or part thereof will to that extent be severed from that Contract but the validity and enforceability of the remainder of that Contract will not be affected. 

21. GENERAL 
    1. The Supplier may waive any right or remedy it has under the Contract at any time and will notify the Customer in writing of any waiver. 
    2. The failure of the Supplier to exercise a right or remedy, or any delay by the Supplier in exercising a right or remedy, or the exercise by the Supplier of only part of a right or remedy, or the granting of any indulgence by the Supplier in favour of the Customer does not:
       1. affect the Supplier’s rights against the Customer;
       2. constitute a waiver of any term or condition; or
       3. prohibit the Supplier from exercising that right or remedy in relation to that breach or any other breach.
    3. A waiver of a breach of a term or condition does not constitute a waiver of another breach of the same term or any other term. 
    4. The Customer must not do, permit or procure anything which does or may damage or harm the Supplier’s reputation, goodwill, and brand positioning, or which does or may bring the Supplier into disrepute. If the Contract is a Consumer Contract or Small Business Contract, then the Supplier must not do, permit or procure anything which does or may damage or harm the Customer’s reputation, goodwill, and brand positioning, or which does or may bring the Customer into disrepute. 

22. NON-DISPARAGEMENT  

22.1 The Customer must not do, permit or procure anything which does or may damage or harm the Supplier’s reputation, goodwill, and brand positioning, or which does or may bring the Supplier into disrepute. If the Contract is a Consumer Contract or Small Business Contract, then the Supplier must not do, permit or procure anything which does or may damage or harm the Customer’s reputation, goodwill, and brand positioning, or which does or may bring the Customer into disrepute.

23. GUARANTEE AND INDEMNITY
    1. The Guarantors warrant and agree that:
       1. they have read and agree to the Credit Terms and the Terms and Conditions of Sale (incorporated in the Credit Application); and
       2. credit has been sought by the Customer from the Supplier; and
       3. was the subject of their request; and
       4. would confer a direct or indirect benefit upon them, if granted. 
    2. The Guarantors unconditionally guarantee to the Supplier the due and punctual payment by the Customer of all monies and obligations which the Customer owes, or may owe, to the Supplier, either alone, jointly, severally, or jointly and severally with another person, now, or from time to time, including liabilities which the Customer owes actually or as contingent liabilities. 
    3. The Guarantors must pay such money immediately upon demand. 
    4. The guarantee in subclause 23.1 is a continuing guarantee and remains in force until the Customer’s obligations have been paid and performed in full and any contingent liability that might exist is otherwise secured.
    5. This deed binds each of the persons executing it even if one or more of the persons named in this deed does not execute, or ceases to be bound by, this deed. 
    6. The Guarantors’ obligations are principal obligations and are not ancillary or collateral to any other right or obligation. 
    7. The Supplier is not obligated to proceed against the Customer or exhaust its remedies against the Customer before proceeding under this deed against the Guarantors. 
    8. The Guarantors’ obligations are absolute, unconditional, and irrevocable, and are not affected by any act or omission which might otherwise affect it at law or in equity, including:
       1. any indulgence of time, waiver, or other concession granted to the Customer or any Guarantor;
       2. the release of any Guarantor;
       3. any incapacity of any Guarantor;
       4. any insolvency or similar proceedings;
       5. any person named in this deed as Guarantor failing to execute this deed;
       6. by any other act, matter, or thing which under the law relating to sureties would or might but for this provision release the Guarantors or any of the Guarantors from all or any part of their obligations under this deed;
       7. any security now or in the future held or contemplated to be held by the Supplier not being held by the Supplier; or
       8. any act or omission of the Supplier that has had the effect that the liability under this deed has increased.
    9. As a separate obligation, the Guarantors indemnify the Supplier from and against all damage, loss, and costs (including collection costs, bank dishonour fees, and legal costs on an indemnity basis) that the Supplier may suffer or incur as a result of any liability the Supplier has to a liquidator or trustee appointed for any voidable or antecedent transactions for any payment received by the Supplier in respect of the Customer such that if such monies are to be repaid then that sum is to be treated as though it was never paid by the Customer.
    10. Until the entirety of all obligations of the Customer have been paid or satisfied in full, the Guarantors must not (except with the Supplier’s prior written consent), directly or indirectly:
        1. take any steps to recover or enforce any right or claim against the Customer relating to any sum paid by any Guarantor under this deed;
        2. claim any contribution from, or exercise any right of subrogation against, the Customer or any other Guarantor; or
        3. claim or receive the benefit of any distribution, dividend, or payment arising out of, or relating to, the insolvency of the Customer or any other person liable jointly or severally with the Customer.
    11. If the Guarantors receive any benefit, payment, or distribution, they undertake to hold that benefit, payment, or distribution for the benefit of the Supplier and to promptly pay or transfer the same to the Supplier.

24. CHARGE OVER REAL AND PERSONAL PROPERTY
    1. As security for the sums the Guarantors owe the Supplier, the Guarantors charge in the Supplier’s favour all their estate and interest in:
       1. any real property (i.e. any house or land); and
       2. personal property (i.e. any other assets including and without limitation, any plant, equipment, vehicles, personal effects and household items),

whether:

1. such property is held in the Guarantors’ own right or in their capacity as trustee;
2. such property is owned solely or jointly with another person;
3. the Guarantors own the property at present or later acquire it; and
4. wherever it is situated.
5. The Guarantors consent to the Supplier placing a caveat or other charge over any of the Guarantors property as specified in clause 24.1(a) and (b).
6. The Guarantors irrevocably appoint the Supplier’s company secretary or solicitor from time to time as their duly constituted attorney to execute in the name of the Guarantors a real property mortgage, general or specific security agreement, bill of sale, or consent to any caveat upon written notice and demand to the Guarantors. 
7. If the Guarantors have previously entered into an agreement with the Supplier conferring a security interest, then those security interests will continue and will co-exist with the security interests created in this deed and will secure all of the Guarantors’ indebtedness and obligations hereunder.
8. The Guarantors acknowledge that:
   1. they have read and understood clause 23; and
   2. clause 24 is necessary to protect the Supplier’s legitimate interests including having regard to:
      1. the risk that retention of title and other security provided by the Customer or other parties may not in substance, provide adequate protection to the Supplier;
      2. the terms of any credit the Supplier may approve under the Credit Application are given on the basis that this clause 24 would apply, and if that were not the case, the Supplier would not have given the same credit terms; and
      3. the risk of insolvency given the nature of the industry in which the Customer and Supplier operate.

25. SECURITY INTEREST
    1. The Guarantors:
       1. waive their right to receive a copy of any verification statement in accordance with section 157 of the Personal Property Securities Act 2009 (Cth) (PPS Act); and 
       2. agree that, to the extent permitted by the PPS Act:
          1. sections 95, 96, 117, 118, 120, 121(4), 123, 125, 126, 128, 129, 130, 132, 134, 135, 142, and 143 of the PPS Act do not apply and are hereby contracted out of; and
          2. waive their right to receive notices under sections 95, 118, 121(4), 127, 130, 132(3)(d), and 132(4) of the PPS Act. 
    2. The Supplier need not disclose information of the kind detailed in section 275(1) of the PPS Act, unless required by law.
    3. Where the Supplier has rights in addition to those under Part 4 of the PPS Act, those rights continue to apply. 

26. SEVERANCE 

26.1 If any provision of this deed is illegal, invalid, or unenforceable, it must be read down so far as necessary to give it a valid and enforceable operation or, if that is not possible, it will be severed from this deed and the remaining provisions will not be affected, prejudiced, or impaired by such severance.

27. GOVERNING LAW AND JURISDICTION 

27.1 This deed is governed by and must be construed according to the law applying in the State of New South Wales