SoundExtreme is the registered trademark of Enfinity in Australia/New Zealand.
1. THIS IS A CONTRACT
Following are the terms and conditions which govern the use of Enfinity web site (“Web Site”). These terms and conditions are intended to be a legal and binding Agreement between Enfinity Pty Limited (ABN 80 633 367 987) including its affiliates (“Enfinity”) and you. By accessing and browsing this Web Site, you acknowledge that you have read and reviewed the following terms and conditions and that you agree to be bound by them. If you make a purchase on the Website, the Sale Terms will also apply to you.
2. RESTRICTION ON USE
The information and material on this Web Site is derived in whole or in part from information and material supplied by Enfinity and other sources. This site is owned and operated by Enfinity. All information and material contained in this Web Site is protected by and subject to international copyright and trademark protection laws. You may download, duplicate, store, or print copies of information from this Web Site for your personal, non-commercial use only, provided that you keep intact all copyright and other proprietary notices and with the understanding that Enfinity retains the copyright on all media including, but not limited to text, graphics, and photographs. You may not, however, distribute or modify the media in any form, print or otherwise (including but not limited to reproduction, publication, retransmission or distribution), in whole or in part, contained in this Web Site, for public or commercial purpose, without the prior written permission of Enfinity. You are also not permitted to link or “mirror” any part of this Web Site, without the prior written permission of Enfinity. You must not use this site for any purpose that is unlawful or prohibited by or under any local, state, federal or international law or these terms of use.Enfinity does not grant any copyright license, actual or implied, through the presentation of graphics, text, or photographs within this Web Site. Nor does Enfinity intend to make available for any use, any copyrighted materials within this Web Site beyond the permitted personal, non-commercial use identified above.
Rights to trade marks, logos and product names appearing on the Web Site belong to Enfinity and/or its affiliates. The use of any trade marks, logos and product names without express written permission from Enfinity or the right holder is prohibited, except for specific use permitted under trade mark law or other laws.
3. DISCLAIMERS
The materials, including all information, software, products and services, in this Web Site and any third-party sites are provided “as is” and without warranties of any kind, either express or implied, including, but not limited to, the implied warranties of merchantability, fitness for a particular purpose, or non-infringement. In no event shall Enfinity be liable for any direct, indirect, incidental, punitive or consequential damages of any kind whatsoever in respect to the materials. Enfinity does not warrant that the functions contained in the materials will be uninterrupted or error-free, that defects will be corrected, or that this site, or the server that makes it available, are free of viruses or other harmful components. Enfinity is not liable and does not warrant or make any representations regarding the use or the results of the use of the materials in this Web Site or in third-party sites in terms of their completeness, correctness, accuracy, timeliness, reliability or otherwise. You (and not Enfinity) assume the entire cost of all necessary maintenance, repair or correction. Enfinity products and services may require regulatory approval in some jurisdictions, and, the purchase, ownership, and/or use of certain Enfinity products or services may not be lawful in some jurisdictions. The presentation of information about Enfinity products and services and the availability of an order entry page within this Enfinity Web Site are not intended to constitute an offer for sale by Enfinity in any jurisdiction, nor are they intended to constitute a solicitation for offers to buy in any jurisdiction where the purchase, ownership, and/or use of a Enfinity product or service has not received any required regulatory approval or where the purchase, ownership and/or use of a Enfinity product or service is unlawful.
The information contained in this Enfinity Web Site is presented as a public service only. The information is not presented for the purpose of conducting business within any jurisdiction and Enfinity does not intend any information in this Web Site to constitute an advertisement or offer for sale of Enfinity products and/or services in any jurisdiction. All offers to purchase are accepted by Enfinity in the jurisdiction in which Enfinity makes the product available for shipment from its dock. All sales transactions are consummated, and title and risk passes, at the point of shipment.
4. RESTRICTIONS OUTSIDE AUSTRALIA
Enfinity makes no representation that this Web Site or the products displayed herein are appropriate or legal for use inside or outside Australia. You are responsible for all compliance with your local laws and use of this Web Site or the products displayed herein where illegal are expressly prohibited.
5. SUBMISSION OF COMMENTS
All comments, suggestions, ideas, notes, drawings, concepts or other information disclosed or offered to Enfinity in this Web Site (collectively, “Comments”) in response to requests or solicitations in this Web Site shall be deemed and shall remain the property of Enfinity. None of the Comments shall be subject to any obligation of confidence by Enfinity. Enfinity shall not be liable to you or third parties in any way for any use or disclosure of any Comments. Without limitation of the foregoing, Enfinity shall exclusively own all present or hereafter existing rights to the Comments of every kind and nature throughout the world and shall be entitled to unrestricted use of the Comments for any purpose whatsoever without compensation to the provider of the Comments. The foregoing grants shall include the right to exploit any proprietary rights in such communication, including but not limited to rights under copyright, trademark, servicemark or patent laws under any relevant jurisdiction.
6. LIMITATION OF LIABILITY
Under no circumstances, including, but not limited to, negligence, shall Enfinity, its subsidiaries and parent companies or affiliates be liable for any direct, indirect, incidental, special or consequential damages, including but not limited to loss of use, loss of profit and loss of data that result from the use of, or the inability to use, Enfinity materials or this Web Site. You specifically acknowledge and agree that Enfinity is not liable for any defamatory, offensive or illegal conduct of any user. Limitation or exclusion of warranties or liability may not be permitted in some states or jurisdictions in which case some or all of the above provisions may not apply to you. To the fullest extent permitted by law, Enfinity’s liability for breach of any implied warranty or condition is limited at the option of Enfinity to one or more of the following:
7. BREACH
If you breach these Terms of Use, Enfinity reserves the right to bring legal proceedings against you, and without limiting the rights and actions available, Enfinity may seek damages or an account of profits against you.
8. TERMINATION
This agreement is effective until terminated by Enfinity. Enfinity may terminate this agreement at any time without notice to you. In the event of termination, you are no longer authorised to access this Web site, and the restrictions imposed on you with respect to material downloaded from the Web Site and the disclaimers and limitations of liabilities set forth in this agreement, shall survive.
9. GOVERNING LAW
This agreement shall be governed by and construed in accordance with the laws in force in the State of New South Wales, Australia, without giving effect to any principles of conflicts of law. Each party irrevocably and unconditionally submits to the non-exclusive jurisdiction to the courts of New South Wales.
10. GENERAL
If any provision of this agreement is found to be unlawful, void or for any reason unenforceable, then that provision shall be deemed severable from this agreement and shall not affect the validity and enforceability of any remaining provisions, which will continue in full force and effect.Enfinity reserves the right to change these terms of use under which this Web site is offered at any time without prior notice to you, in which case the terms of use as modified will apply to you from the date of modification. You should periodically visit this page to review the then current Terms of Use.
TO ALL CUSTOMERS: STANDARD CONDITIONS OF SALE
These are the conditions under which both Enfinity-branded and other products (“Products”) are sold by Enfinity Pty Limited ABN 80 633 367 987• (“Enfinity”) to the buyer described in the relevant invoice (“Buyer”).
The Buyer is deemed to purchase and accept delivery of Products on these conditions. The Buyer acknowledges that these conditions may also be subject to Enfinity requiring the Buyer to submit a credit application to its satisfaction.
1. LEGISLATION
Subject to Clause 9, these conditions constitute the whole contract between Enfinity and the Buyer and supersede all previous oral or written communications. No term or condition contained in the Buyer’s order will add to, amend or delete any of these conditions unless expressly agreed in writing by Enfinity even if any such order is submitted to Enfinity on terms that purport to do so.
2. PROPERTY
(a) Subject to Clause 1, it is the Buyer’s responsibility prior to ordering Products to verify that they will be suitable for the Buyer’s particular purposes and the Buyer confirms having acquainted and satisfied itself with all relevant specifications published by Enfinity on its website or in its brochures.
(b) Enfinity will retain property in any Products sold to the Buyer until it has received full payment for those Products, including any additional charges, taxes, duties or interest payable (“Monies Owing”).
(c) Enfinity will have the power to appropriate payments by the Buyer to such Products and accounts as it thinks fit notwithstanding any purported appropriation by the Buyer.
3. RISK, INSURANCE, TITLE AND RECLAIMING POSSESSION
(a) Risk in the Products will pass to the Buyer at the time of delivery to the Buyer or its courier as the case may be.
(b) Subject to Clause 4(a), the Buyer will insure the Products against loss or damage. Pending full payment of the Monies Owing, the Buyer will hold the proceeds of any insurance claim for loss or damage in trust for Enfinity.
(c) Title to the Products will not pass to the Buyer until the Monies Owing to Enfinity have been paid in full and pending such payment, the Buyer will hold the Products as bailee for Enfinity.
(d) Until the Monies Owing have been paid in full, the Buyer must properly store and protect the Products in a manner that shows clearly that they are the property of Enfinity.
(e) If the Products are disposed of prior to the full payment of the Monies Owing, any amount received by the Buyer will be held in trust for Enfinity.
(f) Enfinity is entitled to reclaim possession of the Products, in satisfaction of the Monies Owing (without prejudice to any other rights of Enfinity) if any of the following events occurs:
(i) the Buyer defaults under these terms and conditions;
(ii) the Buyer commits an act of bankruptcy;
(iii) a receiver or manager is appointed to the Buyer;
(iv) the Buyer goes into liquidation, administration or other form of insolvency administration whether formal or informal;
(v) the Buyer ceases to carry on business; or
(vi) the Buyer enters into a scheme or compromises with its creditors.
(g) The Buyer irrevocably authorises Enfinity at any time to enter any premises in which the Products are stored to enable Enfinity to reclaim possession of the Products if any of the events listed in sub-clause (e) occurs.
(h) If Enfinity legitimately enters such premises for that purpose and incurs any liability to any person in connection with such entry or reclamation, the Buyer will indemnify Enfinity against that liability.
3A. SECURITY INTERESTS UNDER PERSONAL PROPERTY SECURITIES ACT 2009 (PPSA)
1. The Buyer expressly agrees that:
(a) Each order accepted by Enfinity will be a registrable security interest under the PPSA in relation to any Products supplied under it; and
(b) If Enfinity registers a security interest under the PPSA, it may exercise any or all remedies afforded to Enfinity as a secured creditor under that security interest without prejudice to any other rights or remedies arising from a breach by the Buyer of any other agreement with Enfinity.
2. The Buyer waives any rights that it has (or may have) under the PPSA to:
(a) Receive notice in relation to registration of a security interest; or
(b) Claim damages from Enfinity under section 271 of the PPSA.
4. DELIVERY AND FREIGHT
(a) In consideration of the Buyer paying Enfinity’s freight and insurance charge and unless otherwise directed by the Buyer, Enfinity will dispatch and deliver the Products to the Buyer or as the Buyer may direct and will insure the Products while in transit against such risks as Enfinity considers appropriate. The charge for freight and insurance is payable to Enfinity at the same time as payment of the Products. The Buyer may arrange for freight and insurance at its own expense without recourse to Enfinity by giving advance written notice to Enfinity.
(b) Any delivery dates indicated by Enfinity are only an estimate and if it is delayed by any circumstance or event beyond its direct control, it may suspend or extend the delivery date for all or part of the Products and it will not be liable to the Buyer for any claimed consequential loss or damage arising from any such delay.
(c) The Buyer will accept delivery of the Products at the delivery address nominated by it. In the event of substantial delay in accepting delivery, Enfinity will be entitled to charge the Buyer additional costs of storage, redelivery and/or other expenses directly incurred as a result.
(d) Any agreement or undertaking by Enfinity to supply the Products is contingent upon its ability to secure or supply the Products.
(e) Delivery may be made in one or more lot. Each lot will form a separate contract on delivery and be accepted and paid for accordingly notwithstanding late delivery or non-delivery of any other lot. Upon failure by the Buyer to pay any amount when due Enfinity may at its option terminate the contract as to further delivery and no forbearance or course of dealing will affect this right of Enfinity.
5. TERMS OF PAYMENT
(a) Payment terms are net cash 30 days from date of invoice unless otherwise notified from time to time. This payment obligation will be satisfied if the Monies Owing is received by the last working day of the month following the month of invoice. Should payment not be received Enfinity may suspend or withdraw any credit facility without notice.
(b) An early settlement discount as agreed to in writing by Enfinity in respect of the Monies Owing may be deducted if full payment is received by it within seven (7) days from date of invoice. Enfinity may vary that discount rate from time to time.
6. PRICES
(a) Prices are subject to change without notice and are based on the full quantities ordered and do not necessarily operate pro rata for any greater or lesser quantities.
(b) GST where applicable will be charged at the appropriate rate at time of sale.
(c) Prices are inclusive of all import charges and duties currently applicable. If Enfinity is required to pay any further amounts as a result of any increases thereof, the Buyer will be required to pay Enfinity any such further amount as may be invoiced to the Buyer.
7. INTEREST
Enfinity will be entitled to charge interest on overdue accounts calculated on a daily basis at a rate equal to 8% per annum above Enfinity’s bank’s indicator lending rate but without prejudice to Enfinity’s other rights or remedies arising from the Buyer’s failure to make payment on the due date.
8. WARRANTY
(a) Subject to Clause 1 hereof the only warranties in respect of parts and/or labour applicable to the Products will be those expressly stated by Enfinity.
(b) If the Buyer is a reseller, it acknowledges that neither it nor its employees or agents is authorised to make any statement, representation undertaking or warranty concerning the quality or description of the Products other than those published by Enfinity.
(c) By accepting delivery of any of the Products, the Buyer agrees to indemnify Enfinity and will keep it indemnified against loss, costs (including legal costs on a solicitor/client basis), claim or damage suffered by reason of or arising out of:
i) Any statement representation undertaking or warranty made by, or on behalf of the Buyer which is not expressly authorised by Enfinity; and/or
ii) Any breach of these conditions by the Buyer.
9. LIABILITY
(a) To the full extent permitted by law Enfinity will not be liable to the Buyer, (whether in Contract, tort or otherwise) for any loss of revenue, profit, , any third party claims or any other consequential damages allegedly incurred by the Buyer in connection with the supply of the Products.
(b) Without limiting the operation of sub-clause (a), the liability of Enfinity to the Buyer arising under these conditions will be limited to the total amount paid by the Buyer to Enfinity for the Products.
(c) To the full extent permitted by law, all liabilities, terms, covenants and warranties implied by any State or Federal legislation in respect of Enfinity and the Products are excluded.
(d) The liability of Enfinity arising from a breach of consumer guarantee, condition or warranty implied by law will be limited at its complete discretion to:
i) Replacement of the Products or the supply of equivalent Products;
ii) Repair of the Products;
iii) Reimbursement of the cost of the Products or acquiring equivalent Products; or
iv) Reimbursement of the cost of having the Products repaired.
10. INTELLECTUAL PROPERTY RIGHTS
Sale of the Products will not confer upon the Buyer any rights or interest in any associated trademarks, patents, copyrights, industrial designs or other intellectual property rights of Enfinity. The Buyer will not challenge the title of Enfinity or its parent company to any such rights relating to the Products.
11. CLAIMS
Subject to the provisions of the Competition and Consumer Act, Enfinity will not allow any claim in relation to the Products unless it is made in writing within seven (7) days after delivery of Products.
12. DEFAULT
(a) Upon the happening of any of the following events, being:
i) The commission by the Buyer of any act of bankruptcy or the Buyer going into liquidation or a petition being presented for the sequestration of the Buyer’s estate or the administration or winding up of the Buyer;
ii) The Buyer assigning its property for the benefit of creditors or having an administrator, receiver or official manager appointed;
iii) The Buyer failing to pay the Monies Owing by the due date;
iv) The Buyer being in breach of any of these terms and conditions
(b) Enfinity will have the right at its complete discretion and without notice to the Buyer to do any of the following:
i) Decline to deliver any balance of Products still due for delivery under these terms and conditions;
ii) Otherwise cease to perform any of its obligations to the Buyer;
iii) Terminate these conditions without incurring any liability at law or in equity and without prejudice to its rights to recover Monies owing to it by the Buyer and/or damages;
iv) Recover from the Buyer the invoiced price of all Products delivered and for delivery, storage, handling and other expenses incurred by Enfinity ;and/or
v) Resell the Products (if repossessed in terms of Clause 3) and recover from the Buyer as liquidated damages any resultant loss.
13. RETURNS OF CREDIT
Products to be returned for a claimed credit must be clearly delivered to the address of Enfinity in accordance with the following procedures:
(a)Approval must first be obtained from Enfinity’s Branch Manager, Sales Manager or Credit Manager who will provide a Return Products Authority Number;
(b) As far as reasonably possible, Products must be in the original carton and complete with all accessories and in a saleable and undamaged condition and marked with Enfinity’s Return Products Authority Number;
(c) Enfinity’s invoice number and Return Products Authority Number and date must be stated on the claim form;
(d) The reason for the return (e.g. faulty, damaged, wrongly delivered) must be stated on the claim form; and
(e) Enfinity will in each case determine at the discretion of the Branch Manager, Sales Manager or Credit Manager whether it should bear the relevant cost of freight.
14. WAIVER OR ALTERATION
No purported waiver or alteration of these conditions by the Buyer will be binding on Enfinity unless confirmed in writing by a duly authorised officer.
15. NOTICES
Any notices to the Buyer will be sufficiently delivered if mailed by ordinary prepaid post to the last known address of the Buyer in the appropriate State or Territory of Australia or sent by facsimile or email to the addresses nominated by the Buyer in its order. All notices to Enfinity will be sufficiently delivered if so mailed or sent by facsimile or email to its Sydney office. Any such notice sent by prepaid mail will be deemed to have been delivered three (3) business days after mailing.
16. GOVERNING LAW
These conditions will be governed by the laws of New South Wales.