Terms & Conditions

 

1. Definitions and Interpretation
   • Definitions

In these Terms and Conditions of Trade the following words have their corresponding meaning unless the context does not so permit:

• Account means any credit account created in accordance with these Terms;
• Acoustica means Acoustica Pty Limited ABN 55 003 172 307;
• Application means the Application for Commercial Trade Credit to apply for an Account with Acoustica;
• Credit Limit means the credit limit from time to time agreed by Acoustica in its absolute discretion on an Account;
• Customer means a person (including legal entities) which places orders for or acquires goods or services from Acoustica;
• Default Interest Rate has the meaning given to that term in clause 1(b);
• Event of Default has the meaning given to that term in clause 12;
• goods means all goods supplied by Acoustica;
• Guarantor means each guarantor named in the Application as such (or deemed to be named as such under the Application or elsewhere in these Terms);
• Intellectual Property Rights means all copyright (including rights in relation to phonograms and broadcasts), all rights in relation to inventions, plant varieties, trademarks (including service marks), designs and circuit layouts, and all other rights resulting from intellectual activity in the industrial, scientific, literary or artistic fields recognised anywhere in the world, but does not include Moral Rights and the rights of performers;
• Moral Rights has the meaning given to that term in the Copyright Act 1968 (Cth);
• PPSA means the Personal Property Securities Act 2009 (Cth);
• Specifications means the details, measurements, standards and other instructions that relate to goods;
• Supply Terms means invoice and any special conditions relating to a Transaction which the Customer and Acoustica agree to in writing;
• Terms means these Terms and Conditions of Trade, as varied from time to time in accordance with them;
• Transaction means any supply of goods or services by Acoustica to the Customer.

2. Application of Terms
   • These Terms apply to all supplies of goods and services by Acoustica to any Customer whether or not on credit.
   • Each Transaction forms a legal contract between the Customer and Acoustica on the Terms and the terms and conditions set out in any Supply Terms which apply to the relevant Transaction.
   • To the extent of any inconsistency, the terms in any Supply Terms prevail over the Terms.
   • The Customer must not impose any conditions on the purchase of goods or services by it from Acoustica which are inconsistent with or which seek to add to or vary these Terms and any such conditions are void and of no effect unless agreed to in writing by Acoustica.
   • The Customer and each Guarantor are deemed to accept and agree to these Terms upon making an Application or by the Customer placing an order or having an order placed on its behalf for goods with Acoustica.
3. Variation of Terms
   • To the extent permitted by law, Acoustica may from time to time and in its absolute discretion vary these Terms at any time without the Customer’s consent.
   • Where Acoustica wishes to vary these Terms and the variations may substantially prejudice the Customer’s interests (financial or otherwise), Acoustica will notify the Customer in writing at least 30 days prior to the variations becoming effective (“Variation Notice”). Any variations will apply to any Transaction entered into between the Customer and Acoustica after the date of giving the Variation Notice.
   • The Variation Notice may be given by way of publishing updated Terms on Acoustica’s website.
4. Ordering and Prices
   • Quotes in relation to Acoustica’s goods and/or services that Acoustica provides to the Customer are based on information available to Acoustica at the time of provision and will expire after 30 days from the date of provision.
   • Orders must be in writing and must include the product name, quantity and delivery address, and any other information requested by Acoustica.
   • Acoustica may in its sole discretion, at any time whether with or without cause:
     • reject or accept an order;
     • determine any agreement between the Customer and Acoustica for the sale of goods whether on credit or otherwise; or
     • refuse the supply of goods on credit to the Customer, notwithstanding any approval of a credit application for that Customer.
   • Each order is binding on the Customer when the Customer places the order.
   • Acoustica may revise a quotation at any time (including after it has confirmed its acceptance of an order) if:
     • its costs (such as the cost of labour, materials, transport, tax, exchange rates or other costs) change;
     • the relevant goods are imported into Australia and a fluctuation in the rates of exchange between the AUD and the currency in which Acoustica must pay for the goods results in a drop in the value of the AUD against that currency;
     • the manufacturer or the supplier from whom Acoustica acquires the goods increases their recommended retail prices; or
     • the Customer alters the Drawings or the Specifications.
   • Where practicable to do so, Acoustica will advise the Customer of any increase in its costs.
   • Despite clauses 1 and 4.5, if Acoustica agrees in writing to fix the price at which it supplies goods to the Customer, that price will remain fixed for the period of time specified (if any) in that agreement.
   • The certificate of any director, secretary or employee of Acoustica as to the amount payable by the Customer to Acoustica for goods sold to the Customer will in the absence of fraud or manifest error be conclusive of the fact that the amount so certified is payable by the Customer to Acoustica.
5. Invoices and Payment
   • If Acoustica has agreed to supply goods to the Customer on credit then:
     • the Customer must pay to Acoustica without deduction or set-off, the invoiced amount in full within 30 days from the date of invoice (the “Due Date“); and
     • if the Customer does not make payment by the Due Date in accordance with clause 1(a):
       • Acoustica may charge interest at the rate of 2% per annum on any sum due and payable by the Customer to Acoustica (“Default Interest Rate“) that has not been paid from the Due Date until the day of payment; and
       • without limiting any of Acoustica’s other rights, Acoustica may suspend or cancel any undelivered orders.
     • Where Acoustica supplies goods to the Customer other than on credit, Acoustica is under no obligation to deliver those goods unless and until it receives payment in full for those goods, and may, if payment is not received within 30 days of receipt of a valid invoice for such goods, cancel the order applicable to those goods.
     • Acoustica may in its sole discretion and without notice to the Customer, deduct from or set-off against any debts or liabilities of Acoustica to the Customer.

6. Credit Limit
   • This clause 6 applies if the Customer holds an Account.
   • Where there is more than one person named as the Customer or as the holder of an Account for a Customer (“Joint Account”) the liability of those persons is joint and several.
   • Acoustica will accept instructions relating to a joint account from any of the named persons (or representative of such person). To cancel a joint account, the consent or request of both named persons is necessary. Cancellation does not affect the Customer’s liability until all obligations have been met.
   • The outstanding balance of the Customer’s Account must not exceed the Credit Limit except with Acoustica’s prior written approval. If the Customer’s Account balance exceeds the Credit Limit the amount in excess of the Credit Limit will be immediately due and payable. Any such excess does not in itself constitute approval from Acoustica as to an increase in the Credit Limit.
   • Acoustica may from time to time, in its absolute discretion, cancel any unused balance of the Credit Limit and may refuse to supply goods on credit notwithstanding that the Customer has an Account.
   • Subject to clause 7 any payments made by the Customer will be applied against the Customer’s Account in the following order:
     • all interest accrued to the date of payment;
     • all costs incurred by Acoustica which are recoverable from the Customer under these Terms; and
     • any other outstanding balances remaining unpaid.
   • In addition to any rights which Acoustica may have by law, Acoustica may at any time without notice to or the consent of the Customer apply any payments against the matters set out in clause 6 to amounts owing in respect of any Transaction other than the one in respect of which the payments were made, at Acoustica’s discretion and without need for the Customer’s consent.
7. Delivery
   • Time is not of the essence for the delivery of goods by Acoustica to the Customer and Acoustica will not be liable to the Customer for any loss, cost, liability or claims which arise due to the goods being delivered at a date other than the estimated date for delivery.
   • The Customer bears, and must pay or reimburse Acoustica, the costs of delivery of the goods.
   • Goods are deemed to be delivered to the Customer on the date when the goods have been signed for, or otherwise received, by the Customer or a representative of the Customer at the point of delivery at the Customer’s nominated delivery location (“Delivery Date”).
   • If the Customer claims that any delivered goods:
     • are defective;
     • are not in compliance with any invoice or delivery docket provided to the Customer in respect of those goods;
     • were not ordered by and with the authority of the Customer; or
     • are otherwise not in compliance with these Terms (including any Supply Terms which apply to those goods);

it may deliver a notice (“Defects Notice“) in writing to Acoustica within seven (7) days of the Delivery Date.

• Unless the Customer provides notice to Acoustica in accordance with clause 4, the Customer will be deemed to have accepted the delivered goods and the goods will be deemed to be as described in the invoice or delivery docket in good order and condition.
• If Acoustica considers, following the receipt of a Defects Notice pursuant to clause 4, that the goods that are the subject of the Defects Notice contain the defects or non-compliance (as the case may be) as described in the Defects Notice, clause 16 will apply in respect of those goods.
• If requested by Acoustica, the Customer must provide further information and evidence (including photographic evidence), return at its cost (if permitted by law) the goods the subject of a Defects Notice to Acoustica, and/or allow a representative of Acoustica to attend the place where those goods are stored to assess whether they contain the defects or non-compliance (as the case may be) as described in the Defects Notice.
• Any modification or alteration to the goods does not constitute a defect, a failure of the goods to comply with either the corresponding invoice or delivery docket or these Terms, if that modification or alteration is not a material departure from the Drawings or the Specifications for the goods.

8. Return of goods
   • The Customer bears the following costs in respect of any returned goods and agrees that Acoustica may deduct these costs from any credit provided to the Customer for those goods or to otherwise pay to Acoustica by the last day of the calendar month following the delivery by Acoustica of its invoice, an amount equivalent to the total of any transport, packaging costs or other costs incurred by Acoustica in relation to or arising from the return of the goods.
   • Any goods returned to Acoustica which are not accepted for return, will be returned to the Customer at the Customer’s cost.
9. Risk and retention of title
   • Risk in any goods supplied by Acoustica to the Customer pass when those goods are delivered to the Customer or to any other person on the Customer’s behalf (including a transit provider that the Customer has arranged to deliver the goods).
   • Property and title in all goods supplied is retained by and in Acoustica until Acoustica receiving payment in full for the goods, notwithstanding the:
     • delivery of the goods to the Customer;
     • possession and use of the goods by the Customer; and/or
     • any attachment of the goods to any land or premises to facilitate the use of the goods,

and during such time the Customer holds the goods as bailee for, and as fiduciary agent of, Acoustica.

• If Acoustica supplies goods to the Customer on credit or whilst the Customer owes any amounts to Acoustica, howsoever that debt arises, then the Customer:
  • must not make any alterations to, modify or add accessories to the goods without the prior written consent of Acoustica and will not remove any identification features on the goods or any part of the goods;
  • must store all goods supplied by Acoustica in a manner which will keep the goods separate from any other goods of the Customer and the goods supplied by Acoustica readily identifiable as goods supplied by Acoustica to the Customer;
  • agrees that goods supplied by Acoustica including those that are screw-fixed to another surface are deemed to be readily identifiable and capable of removal and will not be fixtures. Acoustica will be under no obligation to make good any damage caused by the removal of any of those items; and
  • may sell the goods in the ordinary course of business but only as fiduciary agent of Acoustica and will, prior to selling any goods purchased from Acoustica and in which title remains in Acoustica, notify the effect of these provisions to the person to whom the Customer intends selling the goods. The Customer agrees that Acoustica may notify the owner of the property and/or works and/or building for which the goods are intended of the effect of these provisions;
  • must not create a security interest in the goods or the sale proceeds of the goods to any third party or permit any lien over the goods or the sale proceeds of the goods;
  • must maintain records of all disposals of the goods and must permit Acoustica to inspect these records promptly upon request; and
  • irrevocably authorises Acoustica or its agent to enter any premises upon which goods are stored to enable Acoustica to inspect the goods and any records pertaining to the goods.

10. Intellectual Property
    • Developed IP
      • Nothing in these Terms or in the supply of any goods or services by Acoustica transfers any Intellectual Property Rights which Acoustica holds in the goods and services it supplies.
      • Subject to clause 2(a), all interest and title in any and all data, trade secrets, formulae, processes and all documents including and not limited to plans, drawings, specifications, schedules, quotations, invoices, delivery dockets and or statements of account (“Developed IP“) produced by or on behalf of Acoustica in the course of any dealings with the Customer or performing any agreement between the Customer and Acoustica, including any Intellectual Property Rights, vests in Acoustica upon their creation and is the property of Acoustica.
      • The Customer must not modify, enhance or improve the Developed IP but if the Customer does so, the Intellectual Property Rights in such modification, enhancement, or improvement vest automatically in Acoustica upon their creation, are the property of Acoustica and are deemed to form part of the Developed IP. The Customer must not disclose the contents of Developed IP to any third party without the prior written consent of Acoustica.
    • Customer’s Drawings

Where Acoustica agrees to supply goods to the Customer which are to be manufactured by or on behalf of Acoustica in accordance with designs, drawings, specifications and/or equivalent documents which the Customer supplies to Acoustica (collectively, the “Drawings”), the Customer:

• retains all Intellectual Property Rights and interest it has in those Drawings and grants to Acoustica a non-exclusive, worldwide, royalty-free, irrevocable licence to use the Drawings for the purpose of manufacturing and supplying the goods to the Customer;
• represents and warrants to Acoustica that it is entitled to have goods manufactured in accordance with and in reliance on the Drawings and acknowledges that Acoustica, in manufacturing or procuring the manufacture of goods in accordance with the Drawings does so in reliance on this representation;
• represents and warrants to Acoustica that it has the necessary rights, consents and licences to provide the Drawings to Acoustica, and that the Drawings do not infringe on the Intellectual Property Rights of any third party;
• indemnifies and holds Acoustica harmless from and against all claims, liability, causes of action, obligations, responsibilities, expenses, costs and debts howsoever arising (including third party claims made or threatened in respect of any breaches of Intellectual Property Rights) which Acoustica incurs, or to which it is or may be subject, by reason of or in connection with Acoustica manufacturing the goods in accordance with or in reliance on or on the basis of, the Drawings or otherwise using the Drawings.

11. Representations, Warranties and Covenants
    • The Customer and each Guarantor jointly and severally represents and warrant to Acoustica that:
      • the information provided by or on behalf of the Customer in connection with its Application (if it has applied for Credit), these Terms or otherwise in connection with acquiring any goods from Acoustica is true and correct and continues to remain true and there are no facts or circumstances that have not been disclosed to Acoustica which would make any of that information untrue, inaccurate or misleading;
      • all matters and things have been done and performed so as to authorise and make the execution and delivery of the Application relating to the Customer (if any), or any Transaction legal, valid and binding and enforceable against it;
      • they are and continue to be solvent and are and continue to be able to make valid payment of any and all amounts that may become due and owing under these Terms;
      • if it is a company, it is duly incorporated and validly existing;
      • no litigation, arbitration, action or administrative proceeding of, or before any court of governmental agency has been started, is pending or threatened which, if adversely determined is likely to have a negative effect on it; and
      • each of the representations, warranties and undertakings made or given by it in these Terms and in the Application (if any) is true and accurate and has been complied with in all respects on the date it is made or given.
    • The Customer acknowledges and agrees that:
      • to the fullest extent permitted by the Australian Consumer Law and other applicable laws, Acoustica has not made any representation or warranty that the goods are of an acceptable quality, durability or fitness nor that the goods are new or equal to new;
      • it does not rely on Acoustica’s skill or judgment as to the quality, durability or fitness of the goods for any particular purpose and the risk in these respects is borne by the Customer; and
      • subject to clause 7, it has inspected the goods prior to delivery and ascertained that the goods were supplied by Acoustica, in proper working order and condition;
      • it is responsible for ensuring that all inspections and checks appropriate for the safe usage of the goods are carried out; and
      • it is responsible for installation and maintenance of the goods.

12. Default
    • Event of Default

The Customer will be in default if the Customer:

• fails to pay any amounts due to Acoustica on the relevant due date;
• is in breach of or fails to comply with, any of the provisions of these Terms (including any Supply Terms) or of any security granted in favour of Acoustica;
• goes into liquidation or receivership or a resolution to place it in liquidation is passed or proposed, or an administrator, other controller or trustee in bankruptcy is appointed to the Customer or any of its assets;
• fails to pay its debts as and when they fall due;
• dies or ceases to have legal capacity;
• is bankrupt;
• does or omits to do anything which might endanger the safety or condition of goods provided to the Customer on credit or Acoustica believes goods provided to the Customer have been or will be destroyed, damaged, endangered, disassembled, removed, concealed, sold or otherwise disposed of contrary to the provisions of these Terms;
• enters into a scheme of arrangement with its creditors;
• commits fraud;
• makes a representation or warranty to Acoustica which is materially incorrect or misleading (including by omission).

• The Customer will also be in default if:
  • execution or distress against the Customer or the assets of the Customer is levied; or
  • there is a change in the legal or beneficial ownership or management control of the Customer without Acoustica’s prior written consent (which Acoustica may not unreasonably withhold).
• Event of Default
  • If the Customer is in default, Acoustica may at its discretion and without prejudice to its other rights and remedies at law or in equity, do any one or more of the following:
    • charge interest at the Default Interest Rate on any late payments calculated on a daily basis from the date the payment fell due until the date payment is received;
    • require the Customer to remedy the default in the manner and within a period of not less than 14 days notified by Acoustica;
    • remedy the Customer’s default, if the Customer fails to so remedy it within 14 days’ notice of that default by Acoustica, and Acoustica may charge the Customer any costs incurred by Acoustica in so doing;
    • require the Customer and/or the Guarantors to pay to Acoustica all amounts the Customer owes immediately;
    • suspend or terminate any unfilled orders for goods or any Account previously granted to the Customer, with suspension or termination effective as at the date of Acoustica giving notice of the same;
    • enter any place where goods Acoustica supplied to the Customer are kept or believed to be kept without further notice and retake possession of the goods; and/or
    • exercise any other rights it has under these Terms.
  • If an Account is terminated under clause 3(a)(v), all monies due and owing under that Account, if they are not already due for payment, will become due for payment at the effective date of termination of that Account.
  • Nothing in this clause releases the Customer or any Guarantor from any, past, present, or future liability under these Terms.

13. Liability
    • Where the Customer is a company, all persons signing this Agreement on behalf of the Customer will be personally liable for all of the obligations of the Customer in connection with this Agreement irrespective of whether those persons signed as a Guarantor.
    • Where the Customer or a Guarantor is a trustee of a trust, the Customer or the Guarantor (as the case may be) enters into this Agreement in its own capacity and in its capacity as trustee of that trust. For the avoidance of doubt, where the trustee is a company, clause 1 applies to the persons signing on behalf of that trustee.
14. Guarantee and Indemnity
    • Where Acoustica agrees to provide credit to, supply goods and services to, or enter into any agreement or arrangement with, the Customer, then in consideration of Acoustica doing so, each of the Guarantors jointly and severally hereby:
      • unconditionally and irrevocably guarantee to Acoustica the due and punctual payment by the Customer of all monies due and payable and the punctual performance by the Customer of all obligations owed to Acoustica from time to time as set out in the Terms and any Supply Terms.
      • acknowledge that their liability extends to all agreements or arrangements between Acoustica and the Customer and execution of any further documents by the Guarantors is not required;
      • indemnify Acoustica, against any and all losses, costs, interest, damage and expenses howsoever incurred or suffered by Acoustica as a result of the Customer’s breach of, or default under, the Terms, or by reason of the Terms becoming void or unenforceable by Acoustica against the Customer for any reason whatsoever, including such losses, costs, interest, damage and expenses howsoever arising from or in connection with any and all steps taken by Acoustica to enforce the Terms, the recovery of a debt, or this Deed (except to the extent that such loss was caused by Acoustica’s negligence, unlawful misconduct, or fraud);
      • agree that they are deemed a principal debtor in connection with all credit provided by Acoustica to the Customer. If the Customer does not pay monies to Acoustica in accordance with the terms applying from time to time between Acoustica and the Customer with respect to those monies, then the Guarantors undertake to pay those monies on demand by Acoustica, whether or not demand has been made on the Customer. A demand may be made at any time and from time to time. Acoustica is not obliged to enforce any right against any person or property or demand payment from the Customer or any other person before demanding payment from all or any of the Guarantors of such monies.
      • agree that this guarantee and indemnity is continuing and will not be discharged by any settlement or payment of any account, until such time as all of the obligations owed by the Customer to Acoustica, howsoever arising, are discharged in full.
    • None of the Guarantors’ obligations or liability under these Terms will be discharged, abrogated, prejudiced, waived or affected by:
      • any indulgence, arrangement, waiver, time, credit or other concession by Acoustica;
      • any alteration, modification, variation, or addition to any agreement between the Customer and Acoustica;
      • the death, bankruptcy or insolvency of the Customer;
      • any other act, omission or event which but for this provision might operate to discharge, impair or otherwise affect, their obligations under this guarantee or any powers or remedies conferred upon Acoustica by these Terms or by law;
    • Acoustica will notify the Guarantors if the Customer is 30 days behind on any payments which have become due and payable to Acoustica, or if Acoustica has commenced legal proceedings against the Customer, or has appointed a receiver, and Acoustica will not be entitled to make a demand or otherwise exercise any of its rights under this clause 14 against a Guarantor unless and until Acoustica has provided that Guarantor with 5 business days’ (that is, a day in Sydney NSW that is not a Saturday, Sunday or a public holiday) notice of any of the events set out in this clause.
    • Until all amounts which may be, or become payable by the Customer have been irrevocably paid in full, and unless otherwise directed by Acoustica, the Guarantors must not:
      • exercise any rights which they may have by reason of performance of their obligations under this clause to be indemnified by the Customer, to claim any contribution from any other guarantor of or provider of a security, and/or to take the benefit (in whole or in part and whether by any way of subrogation or otherwise) of any rights of Acoustica; and
      • in any form of administration of the Customer (including liquidation, winding up, bankruptcy, voluntary administration, dissolution or receivership or any analogous process) prove for or claim, or exercise any other rights in respect of any indebtedness of any nature owed to the Guarantors or any of them by the Customer.
    • Acoustica will obtain the written consent of each Guarantor prior to:
      • discharging or releasing any security which has been granted to Acoustica by the Customer or a Guarantor (unless such discharge or release is given for value and that value is applied in reduction of monies due to Acoustica under these Terms); or
      • if there is more than one Guarantor, releasing any other Guarantor from its obligations under these Terms.

15. Indemnity

The Customer and each Guarantor jointly and severally indemnify Acoustica against all damages, losses, liability, costs, interest or expenses (collectively, “Liability”) howsoever incurred or suffered by Acoustica arising from a breach of these Terms by the Customer, its directors, employees, contractors and agents and/or the Guarantors, except to the extent that such Liability was caused by Acoustica’s negligence, unlawful misconduct, or fraud. This indemnity extends to include a reasonable estimation of loss by Acoustica in relation to the default by the Customer, including debt recovery commissions and fees.

16. Limitation of Liability
    • To the fullest extent permitted by law and except as expressly provided in these Terms, Acoustica excludes all warranties, guarantees and representations.
    • Where Acoustica is unable to exclude its liability due to operation of law, and the goods are not of the kind ordinarily acquired for personal, domestic or household use or consumption then Acoustica’s liability is limited to the following:
      • in respect of defective goods, Acoustica may in its discretion either;
        • replace the defective goods or the supply of equivalent goods; or
        • repair the defective goods; or
        • pay the cost of replacing the defective goods or acquiring equivalent goods or the payment of the cost of having the defective goods repaired.
      • in respect of services, Acoustica may in its discretion either:
        • resupply the services; or
        • pay the cost of having the services resupplied.
      • In all cases other than those cases where Acoustica is unable to exclude its liability due to the operation of law, if goods are damaged or defective and are returned to Acoustica in accordance with these terms, Acoustica’s liability is limited to:
        • Acoustica using reasonable endeavours to enforce any warranty given by a third party manufacturer or supplier of the goods the subject of the claim. Acoustica is not required to do anything under this clause which would, if done, cause Acoustica to incur any cost or expense or other liability or which would involve commencing legal proceedings; and
        • to the extent reasonably possible, Acoustica assigning to the Customer the benefit of any warranty or contractual right operating in favour of Acoustica against the third party manufacturer or supplier of the goods the subject of the claim.

17. Security over Goods
    • Words in this clauses will, if the context permits, have the meanings given to them under or by virtue of the PPSA.
    • Acoustica holds a purchase money security interest (a “PMSI”) in:
      • the goods supplied by Acoustica to the Customer;
      • if the goods described in clause 2(a) have been manufactured, processed, assembled or commingled such that their original identity is lost, the manufactured, processed, assembled or comingled goods;
      • all proceeds in relation to the goods referred to in sub-clauses 2(a) and 17.2(b) including money, accounts receivable and insurance proceeds; and
      • any goods for which any of the goods referred to in 2(a) and 17.2(b) have been exchanged or traded or that have been acquired in lieu of those goods,

as security for any and all amounts payable by the Customer to Acoustica in respect of the goods.

• The PMSI is also granted in respect of all future supplies of goods to the Customer.
• The Customer must not enter into any security agreement with any other party that permits that party to register a security interest in respect of the goods or any proceeds of those goods.
• The Customer waives its rights to receive a copy of the verification statement confirming registration of a financing statement or a financing change statement in relation to any security interest granted by the Customer in favour of Acoustica.
• The Customer is responsible for all costs, expenses and other charges incurred, expended or payable by the Customer in relation to the filing of any financing statement or financing change statement.
• For the purposes of the PPSA only and without derogating from Acoustica’s rights under these Terms:
  • where Acoustica takes possession of the goods upon default of the Customer, Acoustica may, if it chooses to do so:
    • sell the goods by any means and at any time;
    • deduct from the proceeds of sale, all costs incurred in relation to the sale;
    • retain for its own use and benefit any monies payable by the Customer for those goods that remain outstanding; and
    • apply any balance to monies owed by the Customer on any Account (even if not due and payable) to the extent to which Acoustica has priority over other security interests; and
  • where there is a shortfall on the sale or the attempted sale of the goods, Acoustica continues to hold its security interest in the goods and may recover the shortfall from the Customer.
• Acoustica may enter any premises or property owned or controlled by the Customer without notice or where goods are located, and without in any way being liable to the Customer or any other person, if Acoustica has cause to exercise any of its rights under the PPSA, and the Customer releases and holds Acoustica harmless against any liability which may arise from Acoustica exercising its rights under this clause.
• Neither Acoustica nor the Customer will disclose information of the kind referred to in section 275(1) of the PPSA. This clause constitutes a confidentiality agreement for the purposes of section 275 of the PPSA. The Customer waives any right it may have under section 275(c) of the PPSA.
• The Customer waives its rights under sections 95 (notice of removal of accession), 118 (enforcing security interests in accordance with land law decisions), 121(4) (enforcement of liquid assets), 125 (obligation to dispose of or retain collateral), 128 (secured party may dispose of collateral), 129 (disposal by purchase), 130 (notice of disposal), 132(3)(d) (contents of statement of account after disposal), 132(4) (statement of account if no disposal), 135 (notice of retention), 142 (redemption of collateral) and 143 (reinstatement of security interest) of the PPSA and those provisions do not apply to these Terms or any security interest created pursuant to these Terms.
• The Customer acknowledges, agrees and undertakes to:
  • sign any further documents and/or provide any further information (which information the Customer warrants to be complete, accurate and up-to-date in all respects) which Acoustica may reasonably require to enable perfection of its security interest or registration of a financing statement or financing change statement on the PPSR;
  • not register a financing change statement or make a demand to alter the financing statement in respect of the goods without the prior written consent of Acoustica;
  • give Acoustica not less than 14 day’s written notice of any proposed change in the Customer’s name and/or any other changes in the Customer’s details (including but not limited to, a change of postal or business address, facsimile number, email address, trading name or business practice).

18. Security and Charge over Land
    • The Customer and the Guarantors charge all land in which they (whether individually, together or jointly with others) have an interest, whether now or at any time in the future, to Acoustica as security for the due performance of all their obligations under these Terms.
    • The Customer and the Guarantors each consent to the lodgement of a caveat or such other document as Acoustica considers necessary to protect its interest over all or any part of such land.
    • If Acoustica requests, the Customer and/or the Guarantors will at their cost execute and procure the registration of mortgage or like security interest over all or any part of such land in a form that Acoustica may reasonably direct, and the Customer and the Guarantors irrevocably appoint Acoustica and each of its directors (jointly and severally) to be their attorney to sign in their names and on their behalf any document required to effect registration of the mortgage against the title to all or any part of such land.
    • To give effect to the provisions of this clause 18, each of the Customer and the Guarantors hereby irrevocably appoints Acoustica as the Customer’s and the Guarantors’ attorney to execute mortgages and charges (whether registerable or not) against the joint and/or several interest of the Customer and the Guarantors in any land, realty or asset in favour of Acoustica and in the Customer’s and Guarantors’ name as may be necessary to secure the Customer’s and Guarantors’ obligations and indebtedness to Acoustica and further to do and perform all necessary acts including instituting any necessary legal proceedings, and further to execute all or any documents in Acoustica’s absolute discretion which may be necessary or advantageous to give effect to the provisions of this clause.
    • Should Acoustica elect to proceed in any manner in accordance with this clause 18, each of the Customer and Guarantors jointly and severally indemnify Acoustica from and against all of Acoustica’s costs and disbursements including legal costs on a solicitor and own client basis.
19. Appointment of Receivers
    • Following the occurrence of an Event of Default, each security interest created, arising under or provided for these Terms becomes enforceable and Acoustica may appoint one or more persons to be jointly, severally or jointly and severally a receiver of:
      • any goods;
      • any land or other property subject to the security interest granted under clause 2; and/or
      • any property that is the subject of any additional security granted by the Customer or a Guarantor from time to time,

(collectively, the “Secured Property“).

• Unless otherwise prevented by law, a receiver will be the agent of the Customer in respect of the Secured Property owned by it or in which it has rights, and the agent of the Guarantor in respect of the Secured Property owned by it or in which it has rights. The Customer or the Guarantor (as the case may be and referred to in the rest of this clause as the “Security Provider”) agrees to be responsible for each of the receiver’s acts and omissions.
• Subject to any express limitation in their appointment, a receiver may, at their discretion, exercise the same powers and rights as those of Acoustica under these Terms (including any Supply Terms) and at law (whether under statute or under equity). In addition, a receiver has the right in respect of the Secured Property as if the receiver had full legal and beneficial ownership of the Secured Property.

20. GST
    • In these Terms, “GST” means the goods and services tax under the A New Tax System (Goods and Services) Tax Act 1999 (Cth) (“GST Act”). Any reference in these Terms to a term defined or used in the GST Act is, unless the context indicates otherwise, a reference to that term as defined or used in that Act.
    • Unless otherwise stated, all prices or other sums payable or consideration to be provided is exclusive of GST.
    • To the extent that any supply made under or in connection with these Terms is a taxable supply, the consideration to be provided for that supply is increased by an amount equal to the amount of that consideration multiplied by the rate at which GST is imposed in respect of that supply.
    • The supplier of a taxable supply must provide the other party with a tax invoice in applicable form.
    • Costs or expenses to be reimbursed or indemnified by a party exclude any amount in respect of GST included in the costs or expenses for which an entitlement arises to claim an input tax credit.
21. Notices

Without limiting any means by which a sender may be able to prove that a notice has been received by the addressee, a notice is deemed to have been received:

• if delivered by hand, when delivered to the addressee;
• if sent by post, on the 6^th Business Day after the date of posting; or
• if sent by email, on the date when the email was sent.

22. General
    • Assignment
      • The Customer must not transfer, assign or otherwise deal with its rights, powers or obligations under these Terms without Acoustica’s prior written consent. A change in the effective management or control of the Customer will be deemed an assignment for the purposes of this clause.
      • Acoustica and its successors or assigns may without the consent of or notice to the Customer, transfer, assign, novate or otherwise deal with its rights, powers or obligations under these Terms to any other person.
    • Severance

If any provision of these Terms is found to be illegal, invalid or unenforceable, that provision will be read down to the extent necessary and reasonable in all circumstances to give it a valid operation or partial character. If any provision cannot be so read down, that provision will be void and severable and the remaining provisions will not in any way be affected or impaired.

• Waiver

No delay, neglect or forbearance by either party in enforcing against the other party any provision of these Terms will be a waiver, or in any way prejudice any right, of that party. None of the provisions of these Terms will be considered to be waived by a party except when such waiver is given in writing and signed by that party. No waiver by a party of any breach shall be deemed a waiver of any continuing or recurring breach unless it is expressly agreed to be so in writing by that party.

• No Reliance

The Customer acknowledges that it has not been induced to enter these Terms or make a Credit Application by any representation made by or on behalf of Acoustica and relies solely on its own judgement in accepting any goods under these Terms and in making any application for and acquiring goods on, credit.

• Governing Law
  • These Terms will be governed by and construed in accordance with the law of New South Wales and each of the parties hereby submits to the non‑exclusive jurisdiction of courts exercising jurisdiction there.
  • Each party irrevocably waives any objection it may now or in the future have to the venue of any action or proceedings, and any claim it may now or in the future have that the action or proceeding has been brought in an inconvenient forum.
• Operation of this Agreement

These Terms and any applicable Supply Terms constitutes the entire agreement between the parties relating to its subject matter and supersedes and merges all prior discussion and any prior agreement.