Conditions of sale

Definitions:

Australian Consumer Law” means Schedule 2 of the Competition and Consumer Act 2010 (Cth) and the corresponding provisions of State Fair Trading legislation.

Delivery” or “delivered” means the time when the Products are transported from the premises of Fusion and delivered to the Customer by whatever means.

Intellectual Property Rights” means all intellectual property rights (whether created before, on or after the date of this Agreement and whether registered or unregistered) in respect of copyright, any patents, trademarks, logos, designs, software, domain names, business or trade name, together with marketing concepts and designs, product knowledge, training systems and materials, protection of confidential information, circuit layouts, inventions, know-how, product or business concepts, details of product development, and any other identifiable result of intellectual endeavour, whether arising under statute or otherwise or any similar industrial property right or any right to, or application for registration of, any of them.

User agreement

All contracts, agreements, arrangements and dealings between Fusion Musictech Pty Ltd (ACN 608 615 167 (Fusion) (and each of its subsidiaries, affiliates, associated companies, related entities, subcontractors, successors/parent company and assigns) and any person using the Website (“Customer” or “You”) or ordering any products (“Products”) provided and supplied by Fusion to a Customer are subject to the terms and conditions of trade set out below (“Terms”).

These Terms shall be deemed to be incorporated into all contracts for the supply of Products by Fusion to the Customer. These Terms supersede all prior understandings, arrangements and agreements relating to such supply. In the event that there is any inconsistency between these Terms and any other communication from Fusion, these Terms shall prevail unless specified otherwise in writing by Fusion.

By visiting and/or using Fusion’s website (“www.fusionguitars.com”) or ordering or purchasing any Products, You agree to be bound by these Terms. By clicking the “I accept the Sales Terms” button on the Website, you expressly acknowledge the contents of these Terms and the fact that you have agreed to be bound by same.

If You do not agree to any provisions of these Terms, You must not use the Website or make any order for Products.

Fusion may amend these Terms at any time at its sole discretion. By continuing to place an order for Products, the Customer will be deemed to have accepted the revised terms. Fusion is not obliged to notify You of any changes to these Terms. If Fusion makes any significant changes to these Terms it may at its sole discretion publish a notice on the Website stating that these Terms have been amended.

Offer and Acceptance

Products displayed on the Website do not constitute an offer to sell. It is an invitation to treat only.

In placing an order for and making payment of the purchase price of a Product, You are making an offer to Fusion to purchase that Product under these Terms.

Fusion reserves the right to reject any offer made by a Customer for any reason whatsoever (including but not limited to the unavailability of the Product, an error in the price or Product description, or an error in the Customer’s order).

An offer made by a Customer is open to acceptance by Fusion. Acceptance by Fusion of your offer to purchase a Product will occur at the time the Product the subject of the offer is dispatched. Until dispatch of the Product, the agreement to sell the Product to a Customer will not come into existence.

Pricing

The prices of Products, delivery and other charges shown are in US dollars and excludes GST and other taxes where applicable and unless specified otherwise. [SP: taxes, shipping and all fees will be clearly shown to You in the shopping process.]

Prices of Products are subject to change without notice at Fusion’s sole discretion.

In the event that there is a misdescrption of the price of a Product on the Website and you place an order for that Product, Fusion at its sole discretion may refuse to accept your offer to purchase that Product prior and advice you of the misdescription.

The purchase price for Products is exclusive of any shipping, delivery or freight fees (Delivery Fees). All Delivery Fees will be paid by the Customer unless otherwise agreed in writing by Fusion.

Fusion will in its sole discretion select a carrier and means of shipment or freight in respect of Delivery unless otherwise agreed to in writing by Fusion and the Customer.

Any dates quoted by Fusion in respect to delivery of the Products are estimates only and will not form part of these Terms. Fusion will not be liable for any loss or damage suffered by the Customer due to a failure by Fusion to meet the estimated Delivery time.

Payment

The payment of a purchase price of a Product must be received by Fusion in full, together with all relevant Delivery Fees prior to Fusion accepting a Customer’s offer and dispatching the Product. Detailed payment options are specified on the Website.

If a payment is not received in full or is declined by a Customer’s bank or credit card issuer, Fusion will not hold the Product against its order and will refund the portion of the purchase price paid (if applicable).

Delivery

Fusion will arrange for the Products to be delivered to the address specified in your order. If you fail to accept delivery of the Products or fail to provide accurate instructions or authorisations required to enable the Products to be delivered, Fusion may, upon giving written notice to you, store or arrange for storage of the Products.

You indemnify Fusion against and must pay to Fusion upon demand all costs and expenses incurred by Fusion (including storage and insurance charges) arising from your failure to accept Delivery or provide proper instructions or authorisations required to enable Delivery to occur.

Subject to any consumer guarantees under the Australian Consumer Law and USA consumer law (if applicable), unless you notify Fusion by email, telephone or facsimile within seven (7) days of Delivery and such notification is confirmed in writing within seven (7) days of its receipt by Fusion, the Products shall be deemed to have been accepted by you as being in good condition and in accordance with these Terms.

Title and Risk

Fusion retain ownership of the Product until payment is received in full from a Customer and the Product is dispatched to the Customer.

The Customer accepts upon Delivery all risk for loss or damage to the Products whether caused by the Customer or not, and the Customer indemnifies Fusion against all claims, demands, suits and actions for loss or damage caused by or arising from the handling, transport, storage, display, installation, neglect or use of the Products after the Customer has taken possession of the Products. Risk in the Products will remain with the Customer at all times after Delivery.

Cancellation

Fusion reserves the right to cancel, at any time before Delivery and for any reason, an order that has been previously accepted in the case that:

Fusion suppliers are unable to deliver the goods they had previously agreed to supply;

Events beyond Fusion’s control such as storms, fire, flood, earthquake, terrorism, power failure, war, strike, of failure computer systems or any other act of god;

Products ordered that were subject to an error on the website that were not discovered prior to the order being accepted but which were discovered prior to the Product being dispatched.

You may cancel your order where Fusion:

Breached a term of this agreement; or

Is not able to deliver your order within a reasonable time of the estimated Delivery time advertised on the website, other than a result of any delay in which you responsible, such as a failure to provide the correct delivery address or to pay for your order;

If Fusion cancels your order it will advise you of such cancellation

In the event that either you or Fusion cancels your order after payment of the purchase price has been processed, Fusion will refund any money paid in respect to that order.

GST

For Australian based customers, you must pay to Fusion the amount for any GST payable on a taxable supply made by Fusion in connection with any order unless the purchase price for the supply is expressly stated as GST inclusive.

Where you are required by these Terms to reimburse or indemnify Fusion for any loss or other amount incurred, the amount to be reimbursed or paid will be reduced by the amount of any input tax credit that Fusion will be entitled to claim for the loss or amount incurred and increased by the amount of any GST payable by the Customer.

Limitation of liability

The Australian Consumer Law guarantees certain conditions, warranties and undertakings, and gives the Customer other legal rights, in relation to the quality and fitness for purpose of consumer goods sold in Australia. These guarantees cannot be modified nor excluded by any contract. Nothing in these Terms purports to modify or exclude the conditions, warranties, guarantees and undertakings, and other legal rights, under the Australian Consumer Law and other laws which cannot be modified or excluded. Except as expressly set out in these Terms and the Australian Consumer Law, Fusion makes no warranties or other representations in relation to the supply of Products to the Customer. Fusion’s liability in respect of these warranties, representations, undertakings and guarantees is limited to the fullest extent permitted by law.

You acknowledge and agree that:

to the maximum extent permitted by law, Fusion will not be liable to the Customer or any other person under any circumstances for any loss or damage suffered or incurred by the Customer or for any injury or death to any person, or for any indirect, incidental or consequential damages sustained or incurred by the Customer, whether such liability arises directly or indirectly as a result of:
- any negligent act or omission or willful misconduct Fusion or its employees or agents;
- the supply, performance or use of any Products; or
- any breach by Fusion of its obligations under these Terms.

no other term, condition, agreement, warranty, representation or understanding (whether express or implied) in any way binding upon Fusion, other than these Terms, is made or given by or on behalf of Fusion.

the Customer is solely responsible for making an assessment that any Product is reasonably fit for the Customer’s intended purpose and required use, and such purpose or required use is in accordance with all applicable laws.

Where you acquire any Products other than as a ‘consumer’ within the definition in section 3 of the Australian Consumer Law, our maximum aggregate liability for any loss suffered by you is limited in Fusion’s sole discretion to:
- the resupply of the Products; or
- a refund of any payment made by you in respect of those Products.

In no event will Fusion be liable to you for:

any indirect, special, incidental or consequential damages resulting from performance or failure to perform under an agreement pursuant to the Sale Terms; or

due to late delivery or non-delivery of the Products, whether due to a breach of contract, breach of warranty, negligence, or otherwise.

Force majeure

If the performance of Fusion’ obligations under these Terms is prevented, restricted or affected by force majeure including strike, lock out, raw material shortage, breakdown of plant, transport or equipment or any other cause beyond the reasonable control of Fusion, Fusion will not be liable for any loss or damage suffered by the Customer or any other person and Fusion will endeavour to give the Customer written notice if the force majeure event has continued unabated for thirty (30) days.

Indemnity

You will at all times indemnify, and keep indemnified, Fusion and its directors, officers, employees and agents from and against any loss (including reasonable legal costs and expenses on a full indemnity basis) or liability incurred or suffered by You or by Fusion arising from any claim, demand, suit, action or proceeding by any person against You or against Fusion where such loss or liability arose out of, in connection with or in respect of your conduct or breach of these Terms.

Waiver

If Fusion does not exercise or enforce any right or provision under this agreement, it will not constitute a waiver of such right or provision. Any waiver of any provision under this agreement will only be effective if it is in writing and signed by Fusion.

Australian & International Sales

You agree to comply with all applicable export laws and regulations.

You agree not to re-export or ship, directly or indirectly, any Products or technical data in any form without first obtaining Fusion's prior written consent

An attempt by you to enter an order which is subject to additional or altered terms and conditions will be null and void.

In the event of any inconsistency between the Sale Terms and any order or invoice, the order or invoice will prevail to the extent of the inconsistency.

Intellectual Property

The Customer’s purchase of a Product does not confer on the Customer any assignment of any Intellectual Property Rights that subsists in any of the Products or any other materials supplied by Fusion, and the Customer agrees that it will not assert any rights in, or challenge Fusion’ title to, those Intellectual Property Rights.

Fusion makes no representation or warranty to the Customer of any kind, express or implied that the Products will not infringe any intellectual property rights of a third party.

The Customer acknowledges that Fusion retains ownership of all rights, title, interest and goodwill in the Intellectual Property Rights that subsists in any of the Products or any other materials supplied by Fusion (including user guides, instruction manuals and other documents).

Fusion grants to the Customer, and the Customer accepts, a personal non- exclusive licence to use the Intellectual Property Rights that subsists in any of the Products or any other materials supplied by Fusion (including user guides, instruction manuals and other documents) for the purposes of these Terms.

The Customer shall not be permitted to assign, transfer or sub-licence any of the rights granted to it by Fusion to any related party or any unrelated third party without the express consent in writing of Fusion. Fusion may withhold such consent in its absolute discretion or may grant consent on such terms as it considers fit.

The Customer shall not re-publish, transfer, copy, reproduce or post on the internet any of Fusion’ materials without Fusion’ prior written consent.

In addition to any other remedies available to Fusion under these Terms or otherwise, any unauthorised use, alteration, modification, reproduction, publication, disclosure or transfer of the Intellectual Property Rights will entitle Fusion to any available statutory or equitable remedy against the Customer.

The copyright in the Website, copy, images, logos, indicia, text, content, and unique method of showcasing products is owned by Fusion. The domain name www.Fusion.com.au or any of the trademarks, logos or other material in which intellectual property rights subsist may not be used in advertising or publicity pertaining to distribution of this information without Fusion’ prior written consent.

Applicable law

These Terms and any agreement between Fusion and a Customer will be governed by and interpreted in accordance with the laws of Victoria, Australia. You irrevocably submit to the non exclusive jurisdiction of the courts of the State of Victoria, Australia.

If any part of this agreement is found to be void, unlawful or unenforceable then that part will be deemed to be severable from the balance of these Terms or any agreement between Fusion and its Customers, the severed part will not affect the validity and enforceability of any remaining provisions.

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