TERMS AND CONDITIONS FOR PURCHASE AND SUPPLY OF GOODS OR EQUIPMENT
1. You hereby agree to the terms and conditions of this Agreement to facilitate the supply of goods and/or services. These terms and conditions are in addition to the standard conditions of use of this website.
2. In addition to the definitions below, any reference to the “Supplier” “us” “our” or “we” is a reference to East West Lighting Pty Ltd (ACN 600 375 399) and any reference to “the Purchaser” “the Customer” or “you” will be a reference to you.
1. Definitions and Interpretation
(a) In this Agreement and in any instrument created pursuant to or in accordance with it, unless the context otherwise requires:
(i) “Agreement” means these Terms and Conditions and any subsequently amended version.
(A) Any amendments made to the Agreement will be provided to the Customer. If the Customer has any concerns with those amended terms, the Customer should contact the Supplier in Writing listing the concerns within ten (10) business days of the date when the amended terms were forwarded to the Customer. If agreement cannot be reached on any objected amended terms, the original Agreement will remain in full force and effect;
(B) If no Written objection to the terms as detailed in clause 1.1(a)(i)(A) is received within the time specified, the Customer will be deemed to have accepted the amended terms
(ii) “Business Day” means any day except Saturday or Sunday or a day that is a public or bank holiday in the capital city of the State in which the Supplier has its registered office if a corporation or State in which the Supplier has its principal place of business if not a corporation;
(iii) “Controller” has the same meaning as in the PPSA;
(iv) “Dispute Resolution” means the process of resolving disputes between the parties set out in clause 17;
(v) “Documentation Costs” means all fees and outlays associated with the registration of any Security Interest on the PPSR;
(vi) “Goods” means the goods, equipment and/or materials and, where applicable, includes installation and any other related services which are either included in the purchase price or reasonably necessary to effect the delivery of will be deemed to have fulfilled an Order for Goods where the Goods supplied comply with the generic description in the Offer;
(vii) “GST Act” means the Act titled A New Tax System (Goods and Services Tax) Act 1999 as amended from time to time;
(viii) “GST” has the meaning given to this term by the GST Act;
(ix) “Industrial Action” has the same meaning as defined in the Fair Work Act 2009 (Cth);
(x) “Insolvency Event” means official management, appointment of an administrator and /or receiver, compromise, arrangement, merger, amalgamation, reconstruction, winding up, dissolution, assignment for the benefit of creditors, scheme of composition or arrangement of creditors, insolvency, bankruptcy or any similar procedure;
(xi) “Irremediable breach” means a breach of an obligation under this Agreement that cannot be remedied but does not include a breach in the performance of an obligation within a time specified in this Agreement unless the obligation is incapable of being performed after the end of the time specified;
(xii) “Offer” refers to the advertised price of any Goods as it appears on this website. Any such Offer is herein disclaimed to be subject to availability;
(xiii) “Personal Property” has the same meaning as in the PPSA as it relates to:
(A) all personal property of the Grantor, including without limitation present and after acquired property of the Grantor;
(B) any personal property provided by the Supplier (the secured party) to the Grantor on a retention of title basis;
(C) any personal property leased or provided on bailment by the Supplier (the secured party) to the Grantor; and
(D) including without limitation, any Proceeds associated with the above personal property;
(xiv) “PMSI” means a purchase money security interest as defined in the PPSA;
(xv) “PPSA” means the Personal Property Securities Act 2009 (Cth) and any regulations made pursuant to it;
(xvi) “PPSR” means the Personal Property Securities Register established pursuant to the PPSA;
(xvii) ”Practical Completion” means the stage when the Order has been completed in accordance with this Agreement and all relevant statutory requirements apart from minor omissions or minor defects;
(xviii) “Price” means the price to be paid by the Customer to the Supplier for the performance of the Works in accordance with the Quotation; "Price" will be in Australian dollars (AUD)
(xix) “Proceeds” has the same meaning as in the PPSA;
(xx) “Security Interest” has the same meaning as in the PPSA;
(xxi) “Servants” means and includes servants, employees, agents, contractors and sub-contractors;
(xxii) “Variation” means to vary the Order by:
(B) Amendment; or
(C) Any other request to alter the terms herein;
(xxiii) “Works” means the work to be carried out under a Contract including Variations and Goods to be supplied thereunder or to be consumed in effecting the Works;
(xxiv) “Written” or “Writing” means communication in written form including being sent by facsimile and post.
(a) In this Agreement and in any instrument created pursuant to or in accordance with this Agreement, unless the context otherwise requires:
(i) the singular includes the plural and vice versa;
(ii) a reference to a person includes an individual and a corporation, partnership, joint venture, association, authority, trust, State or Government and vice versa;
(iii) a person includes the legal personal representatives, successors and assigns of that person;
(iv) a reference to any gender includes all genders;
(v) a reference to a recital, clause, schedule, annexure, appendix or exhibit is to a recital, clause, schedule, annexure, appendix or exhibit of or to this Agreement;
(vi) a recital, schedule, annexure, appendix or exhibit or description of the parties forms part of this Agreement;
(vii) a reference to any agreement or document is to that agreement or document (and, where applicable, any of its provisions) as amended, novated, supplemented or replaced from time to time;
(viii) where an expression is defined, another part of speech or grammatical form of that expression has a corresponding meaning;
(ix) where an expression is defined anywhere in this Agreement it has the same meaning throughout;
(x) a reference to “dollars” or “$” is to an amount in Australian currency;
(xi) a reference to any legislation or legislative provision includes any statutory modification or re-enactment of, or legislative provisions substituted for, and any subordinate legislation issued under, that legislation or legislative provision;
(xii) All headings throughout this Agreement have been inserted for the purpose of ease of reference only and will not define, limit or affect the meaning or interpretation of this Agreement or of any instrument created pursuant to or in accordance with this Agreement.
2. Governing Law
This Agreement shall be governed by and construed in accordance with the laws of Queensland and the parties agree to submit to the jurisdiction of the Courts of that State or Territory in all matters arising out of this Agreement made between the parties.
3. Formation and Execution of Agreement
3.1. On your acceptance of the terms of this Agreement, the parties will be deemed to have formed a Contract on the terms of this Agreement.
3.2. In the event of any inconsistencies between this Agreement and our published material relating to the Goods, this Agreement will prevail. You acknowledge that the Goods are supplied on a fixed term basis and are subject to credit card surcharges and postal fees as applicable.
3.3. The Supplier has no obligation to issue the Goods until these are paid for in full by you. You acknowledge that the goods are not taken to be paid for until such time that we can produce to you a payment confirmation.
3.4. On receipt of payment, the Supplier shall supply and deliver the Goods to you within the time and on the terms stipulated by us. You acknowledge that delivery of the Goods occurs once the Supplier has confirmed shipment arrangements. The Supplier has no control over the Goods nor the sequence in which the Goods are to be delivered. Pursuantly, title and risk of loss for the items transfer to you upon issuance of the goods to the postal or shipping service.
3.5. If a dispute arises over any Order the internal records of the Supplier will be conclusive evidence of what was ordered.
3.6. The Order is subject to the availability of the Goods.
3.7. The Order may be cancelled by the Supplier without cost to you for any of the following reasons:
(i) The Supplier failing or being unable to comply with any of the terms, conditions or warranties contained herein; or
(ii) In the event that the Supplier is insolvent.
3.8. You warrant that when placing any Order you are solvent and capable of paying all of your debts as and when they fall due. In the event that you are issued credit by us (for example, in the event that Goods are returned in exchange for Goods at a higher cost), then you must also inform the Supplier of any material facts which would or might reasonably affect any decision, to accept such a variation and/or grant of credit in relation to it. In the event that you fail to provide all such information it shall be deemed to be taking unfair advantage of the Supplier and such conduct shall be deemed to be unconscionable. You acknowledge that the failure to pay all amounts due and owing in accordance with this Agreement shall be conclusive evidence that you are unable to pay your debts when they fall due.
3.9. In the event that goods are required to be shipped internationally, then you acknowledge that you are the importer of such goods and must comply with all laws and regulations of the destination country. Such orders are subject to opening and inspection by customs and/or postal authorities and you acknowledge that this practice may affect the scope of any remedies available under Australian Consumer Law, or by way of manufacturer warranty. You further agree that you bear this risk on purchase of the Goods and that the Supplier has no control of the operations of customs and postal services.
3.10. No employee of the Supplier is authorised to vary any of these terms and conditions. However, any express permitted variance of any of these terms and conditions does not constitute or warrant any entitlement to a variance or waiver on any other occasion.
3.11. No dealing between you and the Supplier shall be or be deemed to be a sale by sample.
4. Manufacturer’s Warranty and Performance of Goods
4.1. Our goods/services come with guarantees that cannot be excluded under the Australian Consumer Law. You are entitled to a replacement or refund for a major failure and compensation for any other reasonably foreseeable loss or damage. You are also entitled to have the goods repaired or replaced if the goods fail to be of acceptable quality and the failure does not amount to a major failure.
4.2. To the extent permissible by law, we do not warrant the quality of any Goods supplied but not manufactured by us. You agree to check all Goods and Works for compliance with all applicable standards and regulatory bodies before use, on-sale or application and to use or apply same in accordance with the manufacturer’s and/or the Supplier’s recommendations and directions as well as good commercial practice.
4.3. It is the Customer’s responsibility to establish any warranty relationship with the manufacturer (if applicable) by ensuring that warranty cards or other registration requirements of the manufacturer of any Goods supplied or installed by the Supplier are complied with.
4.4. Without limiting the above subclauses, no responsibility will be accepted by us in respect of the Goods unless we have told you that the Goods are considered fit for the purpose for which you require the Goods; and you have provided complete details in writing of the intended purpose. You otherwise acknowledge that you have relied on your own knowledge and expertise in selecting any Goods or Works. Any advice or assistance given for or on behalf of the Supplier shall be accepted at your risk and shall not be or be deemed given as expert or advisor, nor to have been relied upon by you (or anyone claiming through you), to the extent permitted by law.
4.5. Warranty information, if any, is supplied with the Goods and is provided for by the manufacturer. As the Supplier, we have no control over the extent, scope, or limits to the warranty and take no responsibility for any void or lapse of warranty occurring after we have confirmed the shipping arrangements.
4.6. You must bear your own expenses incurred if required to make a claim under any such warranty.
4.7. For products shipped internationally, please note that any such warranties may not be valid; service options may not be available; any instructional texts, manuals or safety warnings may not be in the destination country languages; the Goods (and accompanying materials) may not be designed to comply with the standards of the destination country (including the specifications, labelling requirements, electrical standards, or fitting requirements). You are responsible for assuring that the product can lawfully be imported into and used in the destination country.
5. GST and Government Charges
5.1. Unless expressly stated to the contrary, any Price, Provisional Sum or the costs of any Variation (for the purposes of this clause, referred to collectively and individually as “costs”) is exclusive of GST. You shall pay any GST applicable to any Goods or Works in terms of the GST Act in addition to any costs.
5.2. Those items for shipment to countries outside of Australia may be subject to taxes, customs duties and fees levied by that destination country. As the importer of these goods, you are responsible for all such fees.
5.3. All government imposts are payable by the Customer.
6. Excepted Risks
6.1. We shall not be liable for any delay or failure to perform any obligations under this Agreement if such failure or delay results directly or indirectly from any cause, matter or thing beyond our reasonable control, including but not limited to:
(i) any act, default or omission on the part of the Customer, its employees and or agents or any third party;
(ii) damage by fire, explosion, earthquake, lightning, storm, flood, acts of God, civil or military authority, public enemy, war, civil commotion, strikes, labour disputes or industrial conditions;
(iii) electric power supply failure;
(iv) inclement weather;
(v) unavailability of suitable materials;
(vi) failure of transportation;
(vii) latent conditions;
(viii) Variations directed by you or as otherwise required to complete the Works safely and effectively;
(ix) Industrial Action or any acts of civil disobedience or similar actions affecting our ability to effect the Works or supply Goods under this Contract including any such action against a third party;
(x) changes in the law; or
(xi) directions or delays by municipal, public or statutory authorities.
7. Risk and Ownership
7.1. Risk of loss, damage or destruction of the Goods or any Works shall pass to you in accordance with this provision.
7.2. The Customer agrees that if any forward order is placed that it will pay for so much of that Order as is from time to time invoiced by us and no delay or failure to fulfil any part of any Order or any alleged delay in or incomplete delivery shall entitle you to cancel or vary any Order or delay or reduce any payment.
7.3. Risk of loss, damage or destruction to the Goods or any part thereof shall pass to you (and hence you will be liable for any costs in holding the Goods) as and when:
(i) You are notified that the Goods are available for collection; or
(ii) The Goods are placed with a carrier for delivery; or
(iii) The Goods are delivered to your business premises or Site whether attended or not by you; or
(iv) Where two or more of (i), (ii) or (iii) above apply, the risk of loss, damage or destruction to the Goods or any part thereof shall pass to the Customer on the earlier of the events contained in those clauses.
7.4. We accept no duty or responsibility to arrange for delivery however may elect to arrange delivery, at our discretion, and at your cost including for any frustrated or delays in delivery and the Customer will be liable for any damage or claims arising in the course of or after delivery whether to public property or any other property including fine, penalties, local authority claims to clean-up roads made dirty on departure. We may delay, cancel or suspend delivery for any period or cancel any part of this Agreement for sale without liability to us or any third parties.
7.5. The property of the Supplier in any Goods remains with the Supplier until the Supplier has received payment in full of the Price and any other moneys due to the Supplier under this Agreement between the parties.
7.6. You are a bailee of the Goods until such time as property in them passes to you, and this bailment continues in relation to all of the Goods until the Price of the Contract to which the Goods are subject to, has been paid in full.
7.7. Pending payment in full of the Price under a Contract, you must not allow any person to have or acquire any Security Interest in the Goods.
7.8. Notwithstanding any preceding subclauses, if you supply any of the Goods to any person before all moneys payable by you have been paid to the Supplier (and have not been claimed or clawed-back by any person standing in the place of or representing you or a third party), you agree that:
(i) You hold the proceeds of re-supply of the Goods on trust for and as agent for the Supplier immediately when they are receivable or received;
(ii) You must either pay the amount of the proceeds of re-supply to the Supplier immediately when they are received or pay those proceeds into an account with a bank or financial institution or deposit-taking institution as trustee for the Supplier;
(iii) any accessory or item which accedes to any of the Goods by an act of the Customer or of any person at the Customer’s direction or request becomes and remains the property of the Supplier until the Supplier is paid in accordance with the terms herein, when the property in the Goods passes to the Customer;
(iv) if you fail to pay the Price or any part thereof, at the time or times required in a Contract or are otherwise indebted to the Supplier, the Supplier may recover possession of the Goods (including at any site owned, possessed or controlled by you) and you agree that the Supplier has an irrevocable licence to enter any site owned, possessed or controlled by you to do so and to dispose of the Goods to recover any moneys owed to the Supplier including for costs associated with recovery.
7.9. Where the Supplier authorises in Writing the Customer to sell any Goods, prior to full payment being made to the Supplier, the Customer shall only sell Goods in its usual course of business on commercial sale terms and must not be in default under this Agreement. Where the Goods are sold at cost or for less this will not be considered to be sold in the usual course of business.
7.10. Where the Customer has been authorised in Writing by the Supplier to lease, hire, bail, sell or give possession of the Goods, it must ensure that any special conditions provided to the Customer by the Supplier from time to time are attached to the Customer’s standard terms and conditions and signed by its customer and that those special conditions prevail in the event of any conflict between them and any other document or agreement between the Customer and its customer. Further, where a Security Interest is created, and expressly allowed by the Supplier, the Customer must register its Security Interest on the PPSR in accordance with the PPSA.
8.1. Any delivery date or timeframe stated on the website or otherwise provided at any time is an estimate only. The Supplier will not be liable for any delays in completion or late delivery and will not be liable for any loss, damage or delay occasioned by the Customer or any other persons arising from the late completion or delivery.
8.2. The Supplier’s Offer is based on a continuous availability of Goods, unless otherwise stated.
9. Damages, Liability and Indemnity
9.1. To the extent permitted by law, any liability of the Supplier to the Customer under this Agreement shall be limited as follows:
(i) In the case of Goods supplied, to the replacement of the Goods or the supply of equivalent Goods, the payment of the costs of replacing the Goods or of acquiring equivalent Goods or the payment of the costs of having the defective Goods rectified, at the election of the Supplier;
(ii) In the case of Works provided, the resupply of the services or the payment of the costs of having the services supplied again, at the election of the Supplier;
9.2. The Supplier, notwithstanding any right the Customer may have at law or in equity or otherwise under this Agreement, shall not be liable for any loss or damages suffered by the Customer for any economic loss or consequential loss or damage including but not limited to, loss of profits, loss of opportunity or loss of use of the Goods, or of the benefit of the Goods or the Works or any part thereof. Where the Customer is a consumer for the purposes of the Australian Consumer Law, consequential loss will be limited to the maximum amount permitted by law.
9.3. The Customer indemnifies the Supplier against any liability, cost or expense it incurs as a direct or indirect consequence of any breach of this Agreement by the Customer, including legal costs on an indemnity basis.
10.1. This clause applies to the extent that this Agreement provides for a Security Interest for the purposes of the PPSA.
10.2. The rights of the Supplier under this Agreement are in addition to and not in substitution for the Supplier’s rights under other law (including PPSA) and the Supplier may choose whether to exercise rights under this Agreement, and/or under other law, as it sees fit.
10.3. The Grantor acknowledges that if the Supplier’s interest under this Agreement and any other related document(s), is a Security Interest for the purposes of the PPSA then that Security Interest relates to the Personal Property and all Proceeds of any kind and this Agreement and any Contract is a security agreement for the purposes of the PPSA.
10.4. The Supplier may register its Security Interest on the PPSR (including, without limitation, as a PMSI). The Grantor must do anything (such as obtaining consents and signing documents) which the Supplier requires for the purposes of:
(i) ensuring that the Supplier’s Security Interest is enforceable, perfected and otherwise effective under the PPSA;
(ii) enabling the Supplier to gain first priority (or any other priority agreed to by the Supplier in Writing) for its Security Interest; and
(iii) enabling the Supplier to exercise rights in connection with the Security Interest.
10.5. The Grantor must pay on demand to the Supplier the Documentation Costs.
10.6. If Chapter 4 of the PPSA does apply to the enforcement of a Security Interest arising under or in connection with this Agreement and to the maximum extent permitted by law, the Grantor agrees that sections 95, 96, 117, 118, 120, 121(4), 123, 125, 126, 128, 129, 130, 132(3)(d), 132(4), 134(1); 135, 142 and 143 and Division 6 of Part 4.3 of the PPSA will not apply to the enforcement of that Security Interest.
10.7. Where a person is a Controller in relation to the Personal Property, the parties agree, to the maximum extent permitted by law, that Part 4.3 of the PPSA will not apply to the enforcement of any Security Interest in the Personal Property by that Controller.
10.8. The Grantor waives its right (including, without limitation, under s275 PPSA) to receive any notice under the PPSA (including notice of a verification statement) unless the notice is required by the PPSA and cannot be excluded.
10.9. The Grantor must not assign or grant a Security Interest in this Agreement any of its rights or obligations under this Agreement without the prior Written consent of the Supplier.
10.10. The Grantor must not create, purport to create or permit to be created any Security Interest in the Goods or lease, hire, bail, sell or give possession of the Goods to anyone else other than with the express Written consent of the Supplier.
10.11. Where the Customer has been authorised in Writing by the Supplier to lease, hire, bail, sell or give possession of the Goods, it must ensure that any special conditions provided to the Customer by the Supplier from time to time are attached to the Customer’s standard terms and conditions and signed by its customer and that those special conditions prevail in the event of any conflict between them and any other document or agreement between the Customer and its customer. Further, where a Security Interest is created, and expressly allowed by the Supplier, the Customer must register its Security Interest on the PPSR in accordance with the PPSA.
11. Intellectual Property
The Supplier owns all copyright throughout the world in an Offer and any documents attached thereto, any Contract Documents and any documents which have been prepared by the Supplier for the purposes of an Offer or Contract including but not limited to any drawings, plans, designs or pricings.
12. Privacy Laws
12.1. Your privacy is important to us. However, you agree that it is reasonable that we retain the personal information provided by you for the purposes of completing the Order and for direct marketing of Goods and other services offered by the Supplier or an organisation it is affiliated with or represents. You have the right to request not to receive direct marketing material.
12.2. You consent to us collecting and using your personal information as specified above.
12.3. You acknowledge that any international shipping of Goods is subject to opening and inspection by customs and/or postal authorities. We may provide certain information about the Order, including shipping and product information, to any international carriers, and such information may be communicated to customs and/or postal authorities in order to facilitate clearance of such goods, or in compliance with any laws or regulations.
12.4. If the order is a gift, the package is marked “Gift”, but any information required to comply with customs or postal requirements will be supplied. For example, if customs authorities require the value of any items to be stated directly on the package.
13. Credit reporting agency
13.1. By the Customer accepting this Agreement, the Customer agrees that the Supplier may give information about the Customer to a credit reporting agency (such as Veda Advantage), in the event that any credit arrangement is requested by you, in order to obtain a consumer credit report about the Customer, and/or allow the credit reporting agency to create or maintain a credit information file containing information about the Customer. The information however is limited to:
(i) Identity particulars – the Customer’s name, sex, address (and the previous two addresses), date of birth, name of employer, and driver’s licence number;
(ii) The fact that the Customer has applied for credit and the amount (if applicable) (which will be the Supplier’s estimate of the likely Price);
(iii) The fact that the Supplier is a current credit provider to the Customer (if applicable);
(iv) Details of any accounts which are overdue by more than sixty (60) days, and for which debt collection action has started;
(v) Advice that an account is no longer overdue in respect of any default that has been listed;
(vi) Dishonoured cheques – cheques drawn by you for $100.00 or more that have been dishonoured more than once.
14. Credit Card Surcharge
The Supplier may charge a fee for accepting payment of moneys due and owing under this Agreement by way of credit card. The amount of the fee will be equivalent to one and a half percent (1.5%) of the amount of any such payment(s).
15. Entire Agreement
This Agreement contains the entire agreement between the parties and both parties agree that there are no other terms, representations or understandings except those set out in this Agreement.
16. Force Majeure
Where the Supplier, its contractors, or any third parties are unable, wholly or in part, by reason of an act of God, strike, lockout or other interference with work, war declared or undeclared, blockade, disturbance, lightning, fire, earthquake, storm, flood, explosion, governmental or quasi-governmental restraint, expropriation prohibition intervention direct or embargo, unavailability or delay in availability of equipment or transport, inability or delay in obtaining governmental or quasi-governmental approvals consents permits licences authorities or allocations, and any other cause whether of the kind specifically enumerated above or otherwise which is not reasonably within the control of the party affect (‘force majeure’), to carry out any obligation under this Agreement and the Supplier:
16.1. gives the Customer prompt notice of that force majeure with reasonably full particulars thereof, and, insofar as known, the probable extent to which it will be unable to perform or be delayed in performing that obligation; and
16.2. uses all possible diligence to remove that force majeure as quickly as possible;
that obligation is suspended so far as it is affected by force majeure during the continuance thereof provided that;
16.3. an obligation to pay money is never excused by force majeure;
16.4. the requirement that any force majeure shall be removed with all possible diligence shall not require the settlement of strikes, lockouts or other labour disputes, or claims or demands by any government on terms contrary to the wishes of the party affected.
17. Dispute Resolution
17.1. Should a dispute arise in relation to this Agreement, you agree to first make reasonable endeavours to resolve any such matter with the Supplier first (including putting your complaint/concerns/demand in writing to the supplier) before taking any legal avenues, including but not limited to the issuance of a letter of demand, or the lodgement of a claim at any competent court or tribunal competent with jurisdiction to hear such dispute (“legal proceedings”).
17.2. In the event that you initiate legal proceedings without complying with the above subclause, then you agree to indemnify the Supplier in full for any corresponding costs, including legal costs, of and incidental to responding to such legal proceedings.
18.1. If any of these Conditions is found to be void, invalid or unenforceable, then it will be read down to the extent required in order to rectify that voidance, invalidity or unenforceability, but if that is not possible, then it will be severed from the Agreement and the other conditions will remain valid and enforceable.